- (1.) The plaintiffs have filed this second appeal as their suit for obtaining the possession of some land left by Smt. Lachhmi who died sometime in the year 1964 was dismissed by the Sub-Judge First Class, Jhajjar, and then in appeal by the Additional District Judge, Rohtak, through their respective judgments dated 6th August, 1965, and 18th July, 1967. The only point for determination in this appeal which has been decided by both the Courts below against the plaintiffs is whether the will executed by Lachhmi on 19th September, 1962, and got registered on 21st November, 1962, in favour of Hazari defendant No. 1 had been validly proved. The will was scribed by a petition writer and was got attested from three witnesses out of whom two, namely, Lila Ram and Suraj Bhan put their thumb impressions and Ganpat signed in the Urdu language. The will itself is in that language. Ganpat DW 1 and Lila Ram DW 2 were produced by Hazari DW 3 as the witnesses for proving the will. The first argument of the learned counsel for the appellants is that by virtue of the provision contained in Section 6(c) of the Indian Succession Act both the attesting witnesses examined by defendant No. 1 should have put their signatures. It was only open to the testatrix either to sign or affix her thumb impression. It may be mentioned here that the testarix had put her thumb impression on the will presumably because she was illiterate woman. The abovesaid provision may be reproduced below for facility of reference : "63. Execution of unprivileged wills - Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules :- (a) x x x x (b) x x x x (c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to will or has been some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the some time, and no particular form of attestation shall be necessary." The whole argument of the learned counsel is that in the first part of the provisions a testator has been given the option of signing or affixing his mark, but in the second part there is no such discretion to a witness who has necessarily to sign. There is some force in this argument, and this kind of interpretation is supported by Nitya Gopal Sirpar v. Nagendra Nath Mitter Mozumdar I.L.R. Col. 429 and D. Fernandez v. R. Alves, I.L.R. 3 Bombay 382. Both these rulings were under Section 50, clause 3, of the Indian Succession Act, 1865, which is similarly worded as Section 63(c) of the Indian Succession Act 1925. It has, however, to be remarked that the word "sign" having been defined in Section 3(56) of the General Clauses Act , 1897, the Bombay and Calcutta authorities would not be strictly applicable "Sign", as now defined would include a mark which of course would mean even a thumb mark. The matter was considered afresh in Maikoo Lal and another v. Santoo and others, 1936 AIR(All) 576 . The question posed for decision of the Full Bench was as follows :- "Is a will validly attested within the meaning of the provisions of Section 63 Succession Act, if either of the attesting witnesses has merely affixed his mark to the will ?" The answer was given in the affirmative. It was noted in this authority that after the word "sign" was defined by the General Clauses Act Section 63 of the Indian Succession Act, 1925 , should have been re-drafted and should not have been the one corresponding to Section 5(2) of the Act of 1865. However, it was held that the provision contained in Section 63 could be interpreted so as to save the validity of the will even though one of the witnesses had put his thumb impression. On the basis of this interpretation, this clear finding was given in Annu Bhujanga Chigare v. Rama Bhulanga Chigare, 1937 AIR(Bom) 389 that the will is validly attested if an illiterate attesting witness makes his mark or thumb impression. The learned counsel for the appellants wants me to break new ground by holding that the interpretation of law as given in the Full Bench ruling of the Allababad High Court should be held to be incorrect. According to him, it was mentioned in Section 3 of the General Clauses Act that the definitions contained therein would only apply if there is nothing repugnant in the subject or context. There was said to be such a repugnancy in the use of the word "sign" at different places in Section 63(c) of the Indian Succession Act, 1925 . I do not agree with him on this score.
(2.) Another argument of the learned counsel for the appellants is that before benefit of the definition of the word "sign" given in the General Clauses Act could be obtained it had to be proved by the plaintiffs that the person who put his thumb impression was unable to write his name. There was said to be no evidence on record for proving such a thing. This kind of presumption can be easily raised that Ganpat having put his signatures, Lila Ram would also have signed the will as an attesting witness if he had known how to write his name. If there was any doubt in the mind of any of the plaintiffs on this point, a direct question to Lila Ram could have been put. If the position had been left obscure even after the cross-examination of Lila Ram, this kind of argument cannot be developed in the second appeal that Lila Ram was a literate person. Lastly, this usual argument was taken that the attesting witnesses never said that they had signed or thumb marked the will in the presence of the testatrix. All the attesting witnesses and Lachhmi were simultaneously present before the petition writer and there is nothing to show from the record that the will was not got attested in the ordinary permissible manner. If any of the plaintiffs had any doubt in this matter, positive evidence could have been brought on record for showing that under some circumstances Lachhmi had to leave the petition writer before the attesting witnesses could put their thumb impressions or signatures.
(3.) I thus agree with this concurrent finding of the Courts below that the will was validly executed. The appeal is consequently dismissed with costs.;