Paragraph numbers below are the court’s original numbering, recovered from the source text.
11. A single Judge of the Calcutta High Court held in Rajani Manda/ v. Digindra Mohan Bi.swas, A.LR. (1932) Calcutta 440 that in Bengal there was a customary practice among illiterate persons to sign documents by touching the pen and authorising another person to sign by writing their name for them in their presence, and therefore an endorsement of payment of interest made E by the scribe and also signed by him on behalf of the debtor who was illiterate and made no mark beneath the endorsement, amounted to acknowledgement of payment of interest by the debtor within the meaning of Section 20 of the Limitation Act (1908). It is not necessary in this case to consider the correctness of that judgment.
12. A Full Bench of the Allahabad High Court upheld the validity of ·attestation' of a Will when it found that the attesting witnesses had affixed their marks. The Full Bench agreed with the view expressed by the Division Bench of the Madras High Court in Naga111ma v. Venkatramayya and others AIR (I 935) Madras 178(2) referred to earlier.
13. The Bombay High Court took a similar view in Annu Bhujanga ('higare v. Rama Bhujanga Chigare A.LR. (1937) Bombay 389 and held that a will was validly attested if an illiterate attesting witness made a thumb impression on it.
14. Our attention has been drawn to two judgments of Patna High Court + .. NAGULAPATI LAKSHMAMMA 1·. MUPPARAJU SUBBA!All [SRINIVASAN, J.J 731 which arose under the Transfer of Property Act. In Dahu and another v. A Jamadar Rai and others, AIR ( 1951) Patna 368. the comt held that when one of the two attesting witnesses to a mortgage signs for himself and also on behalf of the other at his instance and in his presence the signature would be a good signature, though no mark is affixed by the other \Yitness and the mortgage, therefore, is v<i!id as duly attested. The Division Bench referred to B the judgment of the Bombay High Court in D. Fernandez v. R. Alves, J.L.R. 3 Bombay 382 and the Calcutta High Court in Nitye Gopal Sircar v. Nagendra Nath Mitter 1\fozumdm; l.L.R. 11 Calcutta 429 and observed. ·'obviously other considerations arise with regard to the Trnnsfer of Property Act." Though the language in Section 3 of the Transfer of Property Act ~n the definition of 'attested' is the same as language in Section 63 (c) of the Indian Succession C Act, it might be possible to make a distinction between testamentary and non- testamentary instruments. It might also be possible to contend that Section 63 of the Indian Succession Act di!als ll'ith both 'execution' and ·attestation' of a will and it should be interpreted in a particular manner whereas Section 3 of the Transfer of Property Act defines only the cll.-pression 'attested' and it does not deal with execution as such. In our opinion, it is not necessary D for us to consider whether a distinction can be maintained between cases arising under the Transfer of Property Act and cases arising under the Indian Succession Act. The ruling in the aforesaid case has no application in the present matter in as much as the Division Bench has expressly opined that other consider11tions arise with regard to Transfer of Property Act.
15. The other decision of the Patna High Court is in Bishwanath Raul and others v. Babu Ram Ratan Singh and others, AIR. (1957) Patna 485. That case related to a deed of gift. The Division Bench held that a document can be attested by illiterate person by a signature affixed by the scribe. Though the Division Bench referred to the earlier cases. it failed to take note of the F principle thereof. The Bench referred to the Full Bench decision of the Allahabad High Court in Maikoo Lal and another v. Santoo, Objector and others, ATR (1936) Allahabad 576 and erroneously purported to follow it. The Division Bench overlooked that the Allahabad Full Bench dealt with the case of a Will under the provisions of the Indian Succession Act and had only ruled that the affixing of a mark by the ·attestor' would be sufficient for the G purpose of valid attestation. The Division Bench did not also correctly understand the decisions in D. Fernandez v. R. Alves, l.L.R. III Bombay 382 and Nitye Go pal Si rear v. Nagendra Nath Mitter Mozumdm: I.L.R. 11 Calcutta 429.
16. A single Judge of the Patna High Court had occasion to consider H S11PREME COU!U REPORTS [l 998] 2 S.CR. A a case under the Indian Successiun. let in Kall'aldeo Singh and another'" Hari Prasad Singh and anotlm; (1962) BLJR 939. The learned Judge held that it is not necessary that an attesting witness must either sign himself or put a thumb mark on the document and if a third person has signed on his behalf. the attestation is valid. The learned Judge has not referred to any prior mling B or discussed the question in any manner. He has not even adverted to the language of Section 63(c) of the Indian Succession Act. He has proceeded as if the proposition is axiomatic. We have no hesitation to hold that the said judgment is erroneous and not good law.
17. Though there is no direct decision of this court on the above C question, the mling of the Constitution Bench in Commissioner ofAgriculture income Tax Act, /fest Bengal v. Keshah Chandra Manda/ AIR (I 950) S.C. 265 will govern the situation. The question before the court was whether the declaration in the form of return submitted under Bengal Agricultural Income- tax Act which was not signed by the assessee himself who was an illiterate but signed by his son should be treated as properly signed and a valid return. D The High Court answered the question in the affirmative. That was chaIIenged by the Commissioner of Agricultural lncome-tax in this Court. It was found that there was no physical contact between the assessce and the signature appearing on the return. This court answered the question in the negative and reversed the judgment of the High Court by holding that if on a constmction E of a statute signature by an agent is not found permissible then the writing of the name of the principal by the agent however clearly he may have been authorised by the principal cannot possible be regarded as the signature of the principal for the purposes of that statute.
The court rejected an argument of hardship or inconvenience and observed that hardship or inconyenience cannot alter the meaning of the language employed by the legislature when such meaning is clear on the face of the statute or the rules. It is advantageous to quote the following passage which is instructive: ··rt is quite tme that when signature by an agent is permissible. the writing of the name of the principal by the agent is regarded as the signature of the principal himself. But t11is result 011ly follows when it is permissible for the agent to sign the name of the principal. It on a construction of a statute signature by an agent is not found permissible then the writing of the name of the principal by the agent however clearly he may have been authorised by the principal cannot possibly be regarded as the signature of the principal for the purposes of that statute. If a statute requires personal signature of a person. + ..
NAGULAPATI LAKSHMAMMA v. MUPPARAJU SUBBAIAH [SRINIVASAN, J.] 733 which includes a mark, the signature or the mark must be that of the A man himself. There must be physical contact between that person and the signature or the mark put on the document."
18. With great respect, we adopt the aforesaid reasoning and hold that for the purpose of valid attestation under Section 63 of the Indian Succession Act it is absolutely necessary that the attesting witness should either sign B or affix his thumb impression or mark himself as the Section does not permit an attesting witness to delegate that function to another. It follows that in the present case DW 2 is not an attesting witness and in the absence of the evidence of any other attesting witness the decision of the High Court that the Will propounded by the appellant has not been proved is unassailable. C Hence the appeals fail and are dismissed. As the parties are closely related, we direct them to bear their respective costs. V.S.S. Appeals dismissed.