Holding

For a valid attestation under Section 63 of the Indian Succession Act, each attesting witness must sign or affix his own thumb impression or mark; delegation is not permitted.

Summary

The father of the appellant executed a will that was purportedly attested by five persons; only two actually signed, while three "Nishanis" neither signed nor affixed a thumb impression. One of these, identified as DW‑2, claimed to have attested the will but his name was written by a scribe on his direction. The Sub‑ordinate and District Judges treated DW‑2 as an attesting witness and upheld the will, but the Andhra Pradesh High Court held that he was not an attesting witness because he did not sign or mark the document himself, and set aside the lower courts' judgments. On appeal, the Supreme Court examined whether an attesting witness may delegate signing or marking to another person under Section 63 of the Indian Succession Act, 1925. It held that the statute expressly requires each attesting witness to sign or affix his own thumb impression or mark and does not permit delegation; consequently DW‑2 was not an attesting witness and the will could not be proved. The appeals were dismissed.

Issues considered

Whether a person who does not sign or affix his thumb impression on a will can be deemed an attesting witness if his name is written by a scribe on his direction.
Whether Section 63 of the Indian Succession Act, 1925 permits delegation of the attesting function to another person.

Legislation cited

Subjects

Will attestationSignatureThumb impressionIndian Succession ActSection 63Statutory interpretationDelegation of signingEvidence Act

Judgment

NAGULAPATI LAKSHMAMMA A
v.
MUPPARAJU SUBBAIAH

APRIL 15, 1998

[G.N. RAY AND M. SRINIVASAN, JJ.] B

Secession Act, 1925 : Section 63.

Will-Attestation-Validity of-Attesting witness-Held: Must either sign
or ajfrx his thump impression or mark himself-Attesting witness cannot C
direct some other person to sign or make a mark or write his name on his
behalf-Such a delegation does not amount to valid attes1ation of Will-
General Clauses Act, 1897, S.3(56)-Evidence Act, 1872, S. 68.

Interpretation of Statutes :
D
External aids-Dictionary meaning-Invoking of-Held: When there is
an express statutory provisior. in regard to a matter dictionary meaning
cannot be invoked.

Words and Phrases :
E
''Signed'' and ''Signature' '-Meaning of-In the context ofS. 63 of the
Succession Act, 1925.

The appellant's father executed a Will bequeathing his properties
in a particular manner. The Will was purported to have been attested by five
persons. Two of them had signed. The other three had not affixed their thump F
impressions or made any mark. They had been described as 'Nishanis'. It
was also written in the Will against their names "LTI mark ... of... " though
there is no thump impression or mark actually. Out of the two attestors who
had signed, one was dead and the other was not examined, though admittedly
alive. One of the three persons described as "Nishanis" was examined as G
DW-2. Admittedly, he had net affixed his thump impression or made any
mark on the Will. While the Subordinate Judge and the District Judge
~ ""'- treated him as an attesting witnf'ss and believing him held the Will to be
proved, the High Court held that he was not an attestor in the eyes of law
and his evidence could not prove the Will. On this reasoning the High Court
set aside the judgments and d~crees passed by the courts below. Hence this H
723
724 SUPREME COURT REPORTS [1998] 2 S.C.R.

A appeal
On behalf of the appellant it was contended that an attestor could direct :.--
some other person to sign or make a mark on his behalf and, therefore, it
should be deemed that ''LTI of ... '' meant that DW-2 had signed in the Will
as an attestor.
B
Dismissing the appeal, this Court t
~

HELD : 1.1. Section 63 of the Succession Act, 1872 makes a vital
distinction between t:.e testator and the attestors in the matter of signing the
Will. The testator may sign or affix his mark himself or direct some other
c person to sign in his presence. But in the case of attestors such an enabling
provision is absent. Thi! Section expressly states that each of the witnesses
shall sign the Will in the presence of the testator. The privilege or power
of delegation is not available to the attesting witnesses under the Section.
When the same Section makes a distinction expressly between a testator and
an attestor it L not possible to accept to contention that an attestor can also
D
direct some other person to sign or make a mark on his behalf. If a witness
to execution of the Will chooses to do so, he is not an attesting witness as
there is no attestation by him as contemplated by Section 63(c) of the
Succession Act. Consequently, he will not be an attesting witness for the
purpose of Section 68 of the Evidence Act, 1872. [728-B-E)
E
1.2. It is not possible to accept the argument that the word 'sign'
occurring in the last part of Section 63(c) would mean "sign his name or
affix his mark himself or get it signed by some other person in his presence
and by his direction." When there is an express statutory provision in this
regard, the definition contained in the Judicial Dictionary cannot be invoked
F ...
by the appellant. It must, therefore, be held that for the purpose of valid
attestation under Section 63 of the Succession Act it is absolutely necessary
that the attesting witness shou!d either sign or affix his thumb impression
-
or mark himself as the Section does not permit an attesting witness to
delegate that function to another. (728-F-G; 729-F; 733-A-B)
G
C!Tv. Keshab Chandra Manda/, AIR (1950) SC 265, followed.

D. Fernandez v. R. Alves, ILR 3 Born 382; Nitye Gopal Sircar v.
+- ..
Nagendra Nath Mitter Mozumdar, ILR 11 Cal; Venkataramayya v. Nagamma,
AIR (1932) Mad 272; Rajani Manda/ v. Digindra Mohan Biswas, AIR (1932)
H Cal 440; Annu Bhujanga Chigarae v. Rama Bhujanga Chigare, AIR (1937)
~··

NAGl'LAPATI L..\KSHM.\~IMA v. ~tl<PPAR.\JU SUBBAIAH ISRJNIVASAN, l j 725

Born 389; Dahu v. .Jamadar Rai AIR (1951) Pat 368 and Maikoo Lal v. A
- -'I( Santoo, AIR (1936) All 576, referred to.

Bishwanath Raul '" Babu Ra111 Ratan Singh, AIR (1957) Pat 485,
ovcrmlcd.

R .. '"Kent .Justices LR 8 QB 305; Murton v. Copeland, 16 CB 575 and B
Re Whitley 32 Ch. D 33, cited.

Strout:~ .Judicial Dictionmy pp. 2./31 and 2432, Vol. 5, Fifth Edn.,
referred to.

2. In the present case DW 2 is not an attesQ.ng witness and in the C
absence of the evidence of any other attesting witness the decision of the
High Court that the Will propounded by the a11pellant has not been proved
is unassailable. [733-B-C)

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1401
and 1402 of 1988. D
From the Judgment and Order dated 17.12.87 of the Andhra Pradesh
High Court in S.A. Nos. 367-368 of 1982.

Ms. C.K. Sucharita for the Appellant.
E
B. Parthasarthy for the Respondent.

The Judgment of the Court was delivered by

SRINIVASAN, J. The appellant herein is one of the four daughters of
Madamanchi Velugondaiah who had no son. He died in 1946 leaving his F
widow Punnamma and three daughters as his eldest daughter had predeceased
him leaving one daughter. Velugondaiah had left several properties some of
which were dealt with by Punnamma by execution of settlement deeds. Dispute
arose betw.:en the parties resulting in three suits O.S. Nos. 186/71, 187/71 and
52/75 on the file of the subordinate Judge, Ongole. The appellant was the first G
defendant in O.S. 186 and 187/71 and plaintiff in O.S. No. 52/75. The respondent
who was the son of the second daughter of Velugondaiah was the second
plaintiff in the two suits of 1971 and the only defendant in the suit of 1975.
Punnamma who was the first plaintiff in the two suits of 1971 died during
the pendency thereof and th~ respondent was recorded as her legal
representative. H
-~-

726 SUPREME COURT REPORTS [1998] 2 S.C.R_

A 2. Though several issues were raised in the suits, we arc concerned
only with one of them which was the pivotal issue. According to the appellant
Vclugondaiah executed a Will on 2.7.-l5 bequeathing his properties in a particular
manner. The genuineness of the Will was challenged by the respondent and
Punnamma. The Subordinate Judge held that the Will was proved by the
B appellant to be tmc and valid. On that footing the suits were disposed of by
grant of appropriate reliefs. On appeals, the District Judge, Ongole concurred
with the Subordinate Judge and dismissed the same. The matter was taken
in second appeals to the High Court of Andhra Pradesh.

3. At this stage, it is better to advert to the following undisputed facts.
C The Will purports to have been attested by five persons. Two of them had
signed. The other three had not affixed their thump impressions or made any
mark. They have been described as 'Nishanis'. It is also written in the Will
as against their names "LT! mark of .... " though there is no thumb impression
or mark actually. Out of the two attestors who had signed, one was dead and
the other was not examined though admittedly alive. One of the three persons
D described as '"Nishanis", namely, Kondaiah son of Madhumanchi Narayya
was examined as DW 2. Admittedly he had not affixed his thumb impression
or made any mark on the Will. While the Subordinate Judge and the District
Judge treated him as an attesting witness and believing him held the Will to
be proved, the High Court held that he was not an attestor in the eye of law
E and his evidence could not prove the Will. lt is also worthwhile extracting the
following passage in the judgment of the High Court:

" .. .It is no dout true that both the Courts have accepted the evidence
of DW 2 who said that he attested the Will. Beyond that DW 2 does
not say an)1hing. He does not mention the person, who has written
F his name. He stated in the cross-examination that nobody asked him
.....
to put his thumb impression and he was asked by one Karanam
Venkatappaiah to touch the pen. He does not even say who wrote his
name. Karanam Venkatappaiah is not even the scribe. There is no
evidence that his name was written at his instance or under his
direction or in his presence. The observation of the Courts below that
G his name was written by the scribe at his instance is an error apparent
on the face of the record .. "

On the aforesaid reasoning, the High Court held that the Will was not proved
as required by law and allowed the second appeals, setting aside the judgments
H and decrees passed by the Courts below.
NACiUL\J'ATI Lr\KSHMAMMA v. Ml.'PPARAJU Sl'BBAIAH [SRINIVASAN, J.] 727

4. Aggrieved thereby, the appellant has approached this Court. The A
only contention urged by the appellant's learned counsel is that DW 2 is an
attesting witness in as much as the scribe had on his directions written ··1.T.I.
of Kondaiah son of Madhumanchi Narayya". According to her, DW 2 had
thereby ·signed' in the Will as an attestor. She has placed reliance on the
definition of the word 'signed' in Stroud's Judicial Dictionary and drawn our B
attention to the decisions of some High Courts.

5. Thus the question of law which arises for consideration is whether
a person who has not himself signed or made any mark on a will can be said
to be an attesting witness if another person on his authority or direction signs
or makes a mark or writes his name on his behalf. Before examining the C
relevant provisions of law and the decisions of the High Courts, we would
like to place on record that we have perused the deposition of DW 2 and we
are entirely in agreement with the observations of the High Court contained
in the passage extracted earlier. The High Court has stopped short of giving
a factual finding that DW 2 was not present at the time of the execution of
the Will. Probably the High Court hesitated to do so as it was dealing with D
the matter in its second appellate stage. Hence the High Court was and we
are now obliged to consider and decide the question of law.

6. Section 68 of the Indian Evidence Act enjoins the calling of at least
one attesting witness for the purpose of proving execution of a Will. Section
63 of the Indian Succession Act which prescribes how an unprivileged Will E
is to be executed reads as follows: ·

63. Execution of unprivileged Wills. - Every testator, not being a
soldier employed in an expedition or engaged in actual warfare, (or an
ainnan so employed or engaged,) or a mariner at sea, shall execute his
Will according to the following rules: F
(a) The testator shall sign or shall affix his mark to the Will, or it shall
be signed by some other person in his presence and by his direction.

(b) The signature or mark of the testator, or the signature of the
person signing for him, shall be so placed that it shall appear that G
intended thereby to give effect to the writing as a Will.

(c) The will shall be attested by two or more witnesses, each of whom
has seen the testator sign or affix his mark to the Will or has seen
some other person sign the Will, in the presence and by the direction
of the presence and by the direction of the testator, or has received H
728 SUPREME COURT REPORTS [1998] 2 S.C.R.

A from testator a personal acknowledgment of his signature or mark, or
of the signature of such other person; and each of the witnesses shall
sign the Will in the presence of testator. but it shall not be necessary
that more than one witness be present at the same time, and no
particular form of attestation shall be nccessarv.

B 7. The Section makes a vital distinction between the testator and the
attestors in the matter of signing the Will. The testator may sign or affix his
mark himself or direct some other person to sign in his presence. The reason
for such a provision is quite obyious. Many a time, people who are desirious
of making testamentary dispositions may be physically incapacitated from
C signing their names or affixing their marks on account of illness or other
causes. Such persons should not be deprived of an opportunity of making
a Will. Such persons can instead of signing or affixing their marks themselves
can direct some other person to sign in their presence. But in the case of
attestors such an enabling provision is absent. The section expressly states
that each of the witness shall sign the Will in the presence of the testator.
D The privilege or power of delegation, if we may say so, is not available to the
attesting witnesses under the section. When the same section makes a
distinction expressly between a testator and an attester it is not possible to
accept the contention that an attester can also direct some other person to
sign or make a mark of his behalf. If a witness to the execution of the will
chooses to do so, he is not an attesting witness as there is no attestation
E by him as contemplated by Section 63(c) of the Indian Succession Act.
Consequently, he will not be an attesting witness for the purpose of Section
68 of the Indian Evidence Act.

8. According to learned counsel for appellant the word ·sign' occurring
in the last part of Section 63(c) would mean "sign his name or affix his mark
F himself or get it signed by some other person in his presence any by his
direction." In support of this aq,>ument reliance is placed on Stroud's Judicial
Dictionary. At Pages 2431 and 2432 Vol. 5 of Fifth Edn., the word "signed"
is defined as follows:

Signed; Signature. (I) Speaking generally, a signature is the writing.
G
or otherwise affixing, a person's name. or a mark to represent his
name, by himself or by his authority (R. v. Kent Justices L.R. 8 Q.B.
305) with the intention of authenticating a document as being that of.
or as binding on, the person whose name or mark is so written or
affixed. In Morton v. Copeland, (16 C.B. 535), Maule J., said "Signature
H does not, necessarily, mean writing a person's Christian and surname,
~-

NAGCLAP.-\Tl L\t.:SHMAM~IA v_ MCPPARAJU SllBBAIAI-l ISRINIVASAN. J.] 729

but any mark which identifies it as the act. of the party." but the A
reporter adds in a note, "proYided it be proved or admitted to be
genuine, and be the accustomed mode of signature of the party:-
Without more, ··to sign" is not the same as
··to subscribe."

(2) The minute requisite of a signature will very according to the
nature of the documents to which it is affixed. e.g. B
(a) Deeds;

(b) Wills;

(c) Contracts;
c
(d) Bills of exchange and promissory notes:

(e) Solicitors' bills;

(f) Electioneering paper;

(g) Judge's orders and legal proceedings: D

(h) Office copies

and "in every case where a statute requires a particular document to
be signed by a particular person, it must be a pure question on the
construction of the statute whether the signature by an agent is E
sufficient: (per Bowen L.J., Re Whitley 32 Ch. D. 337).

9. We are unable to accept the argument. When there is an express
statutory provision in this regard, the definition contained in the Judicial
Dictionary cannot be invoked by the appellant.
F
l O. In some cases decided before the advent of the General Clauses Act.
1897 some High Courts took the view that it was necessary for the validity
of a Will that the actual signature, as distinguished from a mere mark, of at
least two attesting witnesses should appear on the face of the Will. See D.
Fernandez v. R. Alves, ILR 3 Bombay, 382 and Nitye Gopal Sircar v. Nagendra G
Nath Mitter Mozu111dm~ ILR 11 Calcutta, 429. The General Clauses Act which
came into force in 1897 contained a definition of the word "sign' in Section
•+ 3 (56) thereof as follows: ··sign", with its grammatical variations and cognate
expressions, shall, with reference to a person who is unable to write his name,
include "mark" with its grammatical variations and cognate expressions:".
But even thereafter, in a case which arose under a Transfer of Property Act, H
730 SUPREME COURT REPORTS [1998) 2 S.C.R.

A a single Judge of the Madras High Court held in Venkatara111ayya and others
v. Naga111111a, A.LR. (1932) Madras 272 that a mark by an attesting witness
althongh valid at the date of executi0n of a deed of gift made in 1912 should
be held to be inoperative in view of the law as amended on the point by Act
27 of 1926 which was expressly made retrospective in effect. The learned
Judge referred to the definition of the word ·attested' in Section 3 of the
B Transfer of Property Act and held that in as much as the witnesses were
required to sign the instrnrnent it was not sufficient if they made their mark
or affixed their thumb impression. It has to be pointed out that the definition
of the word ·attested' contained in Section 3 of the Transfer of Property Act
is almost a verbatim reproduction of sub-section (c) of Section 63 of the
C Indian Succession Act. However the judgment of the learned single Judge
referred to above \vas reversed on appeal by a Division Bench in Nagamma
v. Vi:nkataramayya and others, A.LR. (1935) Madras 178(2). The Bench held
that the definition of 'sign' in General Clauses Act would apply and therefore
the word 'sign' in Section 3 of the Transfer of Property Act included also a
mark by the attestor.
D
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.
F 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.
G 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.

H 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. E
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 Gopal Sirear 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
732 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
F 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
G 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
H 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.