JUDGMENT N.D. Ojha, J.
1. This special appeal has been filed against the judgment dated 27th May, 1983 (reported in AIR 1983 All 386), of a learned Single Judge of this Court dismissing testamentary Suit No. 14 of 1982 filed by the appellant on 24th Sept. 1982, for the grant of letters of administration with a copy of the annexed will said to have been executed by Professor G.D. Karwal, husband of the appellant. It is admitted by the parties that Professor G.D. Karwal died on 24th Dec.
1969? and left two sons -- J.D. Karwal and R.D. Karwal and three daughters -- Smt. Sheela Premprakash, Smt. Shakuntala Sahdev and Km. Janak Karwal from his first wife Smt. Lajwanti and one daughter Smt. Prem Luthar from his second wife, Smt. Leela Karwal, the appellant. It is also admitted that his two wives were real sisters and it is after the death of Smt. Lajwanti in the year 1926 that Professor G.D. Karwal had married the appellant. So .
also stands admitted the fact that Km. Janak Karwal is unmarried and lived with her father in house No. 464 Mumfordganj, Allahabad, and has been living in a portion thereof even after the death of her father J.D. Karwal, respondent No. 1, has stated in his deposition in this case that when Km. Janak Karwal was about six months or a year old she fell down and got crippled due to injuries in her legs and cannot move more than ten or twenty yards at a time with case.
2. According to the appellant, Professor G.D. Karwal had executed a will whereby house No. 464 Mumfordganj, Allahabad, which was his self-acquired property, had been bequeathed to her. The will filed along with the petition for the grant of letters of administration is, as was admitted before us even by counsel for the respondents, in the handwriting of Professor G.D. Karwal, namely, that it is a holograph one. It, however, does not bear any dat. Evidence was led by the appellant that it had been executed on the Rakshabandhan day in the year 1969. It bears the signatures of P.C. Jain and his wife Mrs. Shanti Jain as attesting witnesses. The opening sentence of the will reads :
"I, Guru Datt Karwal, s/o Shri Devi Chand, retired Professor, University of Allahabad, Allahabad, r/o 464 Mumfordganj, Allahabad, (U.P.), declare this to be my will."
It is written on both the sides of a half-sheet of ordinary paper and does not bear any signature of Professor G.D. Karwal on any of its two sides. His name written in the first sentence extracted above is relied on as the signature of Professor G.D. Karwal. A caveat was filed by J.D. Karwal, respondent No. 1, and Janak Karwal, two of the children of Professor G.D. Karwal from his first wife Smt. Lajwanti. Their case was that their father had never executed any will. They inter alia relied on the circumstances that will filed by the appellant had not been produced in any proceedings including mutation proceedings till the year 1982 when it saw the light of the day for the first time after about 13 years of the death of Professor G.D. Karwal. Parties produced evidence in support of their respective cases and after considering the same the learned Single Judge by the judgment appealed against dismissed the suit filed by the appellant for the grant of letters of administration. He held :
(1) Since no signature of the testator was to be found on the document relied on by the appellant as a will, it was only a draft will;
(2) Even if for the sake of argument the words "I, Guru Datt Karwal" in the opening sentence of the document in question, are taken to be the signature of the testator it still remained a draft will as attestation of the will had not been established;
(3) There are many circumstances emerging from the facts on the record which indicated that the case set up by the appellant that Professor G.D. Karwal had executed the will in question was not believable.
3. It has been urged by counsel for the appellant that the writing of his name by the testator in the opening sentence of the will, which was a holograph one, was his signature and fulfilled the requirement of the will being signed. In order to appreciate this argument it would be useful to refer to Section 2(h) of the Succession Act (hereinafter referred to as the Act) which defines the term "will" and Section 63 thereof which prescribes the requirements of execution of a will. Section 2(h) of the Act reads as follows : --
"Will" means the legal declaration of the intention of a testator with respect of his property which he desires to be carried into effect after his death".
Section 63 of the Act 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 airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules : --
(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 it was 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 testator, or has received from the 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 the 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 necessary".
The word "means" used in Section 2(h) of the Act connotes that the legislature by using the said word wants to "exhaust the significance of the term "defined" See Province of Bengal v. Hingul Kumari, AIR 1946 Cal 217 and Taj Mahal Hotel v. Commr. Income-tax, AIR 1969 Andh Pra 84. The words "the legal declaration" on the other hand used in Section 2(h) in our opinion mean the declaration made in accordance with law. The definition of the term "will" being exhaustive a document can consequently be construed as a will only if it contains a declaration made in accordance with law of the intention of a testator with respect to his property which he desires to be carried into effect after his death. Since Section 63 of the Act prescribes the requirements of the execution of an un-privileged will such as the will set up in this case, letters of administration in respect of this will can be granted only if the declaration of his intention by Professor G.D. Karwal with respect to his property, which he desired to be carried into effect after his death, has been made in accordance with law, i.e., in conformity with the requirements of Section 63 of the Act. The submission aforesaid made by counsel for the appellant will thus have two aspects : (1) whether the writing of his name by the testator in a holograph will, while describing his identity, can be construed as a signature, and (2) if it can be so construed, does it fulfil the requirements of Section 2(h) and Section 63(a) and (b) of the Act. At this place we wish to emphasise that after reading Sections 2(h) and 63(a) and (b) together the legal position seems to be that the requirement of signing the will by the testator is for the purpose of authenticating the contents of the writing containing his declaration about the desposition of his property after his death. It is, therefore, apparent that the testator has to put his signature or mark as contemplated by Section 63(a) of the Act only after the contents of the writing containing the declaration have been scribed for it is not possible to authenticate a declaration before such declaration has been actually scribed and has thus come into existence. Something nonexistent cannot obviously be authenticated. When a person writes his name, parentage and address in the opening part of a document to disclose his identity, it is a stage or point of time when the contents of the document are yet to be written and have not come into existence. How can such writing of name be treated as authentication of the contents of the document is yet another crucial question which will have to be considered.
4. The view which we take about the purpose of signing a will as contemplated by Section 63(a) of the Act finds support from the decision of the Supreme Court in Ch. Subbarao v. Member, Election Tribunal AIR 1964 SC 1027 where it was held that if the signature of the petitioner whose name is set out in the body of the petition is appended at the end sureiy it authenticates the contents of the document. In other words the purpose of signature is to authenticate the contents of the document. This point shall be dealt with in detail later on.
5. The principles for deciding the question about the genuineness of a will may also be considered at this place. In Jaswant Kaur v. Amrit Kaur, AIR 1977 SC 74 it was held :-
"In cases where the execution of a will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the Court's conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the will is such as to satisfy the conscience of the Court that the will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the will.
There is a long line of decisions bearing on the nature and standard of evidence required to prove a will. Those decisions have been reviewed in an elaborate judgment of this Court in H. Venkatachaia Iyengar v. B.N. Thimmajamma, (1959) Supp (1) SCR 426 : AIR 1959 SC 443. The Court speaking through Gajendragadkar, J., laid down in that case the following propositions : --
(1) Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of will, one cannot insist on proof with mathematical certainty.
(2) Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.
(3) Unlike other documents, the will speaks from the death of the testator and, therefore, the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
(4) Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feable mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and, therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the Court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
(5) it is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the Court is the last will of the testator, the Court is called upon to decide a solemn question and by reason of suspicious circumstances the Court has to be satisfied fully that the will has been validly executed by the testator.
(6) If a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter".
Reiterating the principles enunciated in the case of H. Venkatachala Iyengar, AIR 1959 SC 443 and certain other decisions rendered thereafter it was held in Indu Bala v. Manindra Chandra, AIR 1982 SC 133 :-
"This Court has held that the mode of proving a will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a will by Section 63 of the Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the will to show that the testator's mind was not free. In such a case the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes a prominent part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations. (See AIR 1964 SC 529, 1959 Suppl (1) SCR 426 : AIR 1959 SC 443 & (1962) 3 SCR 195 : AIR 1962 SC 567)."
6. We shall now refer to the cases cited by counsel for the appellant in support of his argument that his name written by the testator in the opening sentence of the will was his signature as contemplated by Section 63(a) and (b) of the Act. Sabitri Thakurain v. F.A. Sain (1915) 29 Ind Cas 743 : (AIR 1916 Cal 630 (2)) was a case where a holograbh will in four pages admittedly bore the signature of the testator on all the four pages. On the first page his signature appeared at the top left hand corner and against or along side this signature of the testator four persons were said to have attested the will. The question which arc~e for consideration was as to which of these signatures was the operative signature of the deceased. It was held that the operative signature was on the first page. In this connection it was pointed out that amongst Indians the English system of executing the document at the foot did not obtain and that their custom was to execute the document at the top. This case is clearly distinguishable inasmuch as it was not a case where the will did at no place bear the signature of the testator and his name appearing in the clause describing his identity was sought to be used as his signature. Mathura Das v. Babu Lal, (1878) ILR 1 All 683 was a case where a letter written by a duly authorised agent of Babu Lal, a Banker, was headed as "written by Babu Lal to Shah Banarsi Das" and the concluding portion of the letter was written by Babulal in his own handwriting but it was not signed by him. It was treated to contain an acknowledgment as contemplated by the Limitation Act on the ground that it is not the practice of the Hindu bankers to sign their letter at the foot. Their letters are ordinarily headed as stated above. Mohesh Lal v. Busunt Kumaree, (1881) ILR 6 Cal 340 was a case where certain letters purporting to have been written on behalf of one Kali Pershad under his authority were sought to be used as an acknowledgment under the Limitation Act. After scrutinising the evidence in regard to the manner in which Kali Pershad used to get his letters written, it was held : --
"Upon this evidence it seems to us that, as Kali Pershad never wrote letters to the plaintiff himself, but authorised them to be written by his dewan, whose ordinary duty it would be to carry on a correspondence of that kind, we are bound to hold that, at any rate, the letter No. 12, which was written by Shital Lal's father as the dewan of Kali Pershad, was written by him as his agent generally authorised for that purpose".
Gangadharrao Venkatesh v. Shidaramapa Balpa, (1894) ILR 18 Bom 586 was a case where certain letters admitting a debt were written by the authority of the debtor who was a desai. The only words, however, of the letter which were actually in his own handwriting were the words "guru samarth" (the exalted preceptor is strong) at the beginning of each letter and the words "Kalave, bahut kay lihine, lobh karava hi vinanti" (let this be known. What more need be written. Keep regard; this is the representation) at the end It was proved by evidence that this was the usual mode of signing and authenticating letters and informal documents among the class to which the defendant belonged. It was held that by analogy, the writing of specified words by desais at the top and bottom of letters, which was shown to be the usual way, amongst persons of that class, of authenticating letters, was a "signing" within Section 19 of the Limitation Act (XV of 1877) and that the letter was a valid acknowledgment.
7. These three cases also are clearly distinguishable. Firstly, they were dealing with letters or informal documents and not with execution of a solemn document like a will Secondly, it is not the case of the appellant that as a matter of practice Professor G.D. Karwal either never wrote any document himself and got it written through someone or that Professor G.D. Karwal belonged to a class of persons who on account of certain established custom or practice never signed a document or invariably adopted the mentioning of his name in the clause describing his identity as the only mode of signing and authenticating a document, even if it was a solemn or a formal document and not an informal one.
8. In the goods of R. Porthouse (1897) ILR 24 Cal 784 a testator died leaving as his will a printed form of will imperfectly filled in, and having omitted to insert his name and description at the head of the document, and to append his signature thereto. He had, however, written his name in the attestation clause and completed the disposition clause bequeathing all his property to his wife and appointing her sole executrix. It was held that this was sufficient and the will should be admitted to probate. In this case it would appear that the name of the testator found place in the last sentence of the will after the entire contents containing the declaration of the intention of the testator with respect to his property which he desired to be carried into effect after his death had already been scribed in Clause (2) which was the disposition clause and this disposition clause was completed by the aforesaid last sentence which reads "In witness whereof I the said Robert Porthouse have to (put) this my last will and testament set my hand the eleventh day of October in the year of Our Lord one thousand eight hundred and eighty eight". The place where and the point of time when the testator wrote his name clearly amounted to authentication of the declaration of the testator with respect to disposition of his property. This is apparent even from a bare perusal of the will which has been quoted in the report. In the goods of Pearn (1875) 1 PD 70 the name of the testator written in the verification clause of the will was found sufficient. In this case too emphasis was placed on the fact that the name of the testator had been plainly written subsequent to the other writing. Obviously it had the effect of authenticating the writing which preceded the verification clause.
9. Amrendra Nath Chatterjee v. Kashi Nath Chatterji (1900) ILR 27 Cal 169 was a case where the will did contain the signature of the testator on the right hand corner but this signature had not been made in the presence of the attesting witnesses. The testator, however, admitted before the attesting witnesses that the paper which they were required to attest was his last will. It was held that it constituted sufficient acknowledgment by the testator of his signature to his will. The case was thus such as is contemplated by the latter part of Clause (c) of Section 63 of the Act and is clearly distinguishable.
10. Janki v. Kallu Mal, (1909) ILR 31 All 236 was a case where the widow of a deceased Hindu applied for a certificate of succession. In opposition to this application an alleged will of the deceased was set up and it was proved that the deceased, being of sufficient testamentary capacity, had, shortly before his death caused a draft will to be prepared, that he had had the draft read to him twice and explained to him, that he made it over to a person appointed a trustee under the will telling him to have it faired out and brought to him for signature, but that he died before this was done without having expressed any intention, except in one small particular, of wishing to alter the draft so made. Two witnesses Lachman Sarup and Dr. Ram Chander were produced to prove the will. Relying on the Evidence of these witnesses arid the circumstance that according to Hindu Law it was not necessary that a will should be executed by the testator it was held that the testator had made a will. Here it may be pointed out that Clause (c) of Section 57 of the Act which applies the provisions of Part VI of the Act set out in Schedule III thereof to wills and codicils inter alia made by aHindu on or after 1st Jan., 1927, to which those provisions were not applied by Clauses (a) and (b) of Section 57 was added by Act XVIII of 1929 and when the case of Janki ((1909) ILR 31 All 236) (supra) was decided on July 28, 1908, a Hindu could have made an oral will which could be proved by evidence. This case is, therefore, of no assistance for interpreting the requirements of execution of a will contained in Section 63 of the Act.
11. The facts of the case in the Estate of Mann (1942) 2 All ER 193 were that a holograph will concluded with the clause "In the presence of witnesses" followed by the signatures of two witnesses, but was not signed by the testatrix. One witness was present while the whole of the document was written and the other during the writing of the latter part only. In the presence of both witnesses the testatrix wrote on an envelope the words "The last will and testatment of Jane Catherine Mann," and placed the will in the envelope and sealed it. Apart from the superscription on the envelope the will was not executed by the testatrix. It was held that the circumstances precluding any possibility of fraud, the envelope must be regarded as an attached paper and the documents should be admitted to probate. In this case also her name was written by the testatrix on the envelope in the presence of the attesting witnesses after the entire will which was kept inside the envelope had already been written. So, obviously, it had the effect of authenticating the contents of the will. While dealing with the rule of "attachment of documents" the learned Judge granting the probate pointed out that it was on the peculiar facts of that case that probate was being granted and in this connection observed:
"Therefore, although I am prepared to order that this will be admitted to probate by accepting the signature on the envelope as the signature to the will, I desire to draw attention pointedly to the very exceptional circumstances which have impelled me to this course....... It is always imprudent to attempt anything in the nature of prophesy in matters of this description, but it is difficult to imagine that circumstances of this kind will easily or frequently repeat themselves, and in this reflection I find a certain measure of consolation in departing reluctantly from a rule which I believe to be both salutary and wise."
12. Re Chelcraft (deceased) (1948) 1 All ER 700 was a case where the testatrix had singed the will but the signature was incomplete. On the facts of that case pointed out in detail, it was taken to be her signature. In this case also it has been emphasised that when the testatrix was invited to sign the document it had already been written and she knew and approved of the contents thereof.
13. Ajit Chandra Majumdar v. Akhil Chandra Majumdar, AIR 1960 Cal 551 cited before us had been cited before the learned single Judge also. He has distinguished it by making the following observation with which we agree: --
" In this case the whole of the will was written in the hand-writing of the testator in English. The question whether the testator put his signature on the holograph will or not was not in dispute. It appears that the signatures of the testator were there. In fact, it has been further stated in that case that the corrections were made in the will on 8th August, 1944, and the date and initials of the testator appear on those corrections. It was consequently held that the corrections indicate that the testator had not only approved the draft and executed the will but was also, intelligently following the course of events subsequent to the will. As I have already held above, in the instant case there are no initials on the will much less a signature. There is no other evidence to indicate that the will was treated to be a will duly executed in the eye of law. Ajit Chandra's case (supra), in my opinion, also does not help the plaintiff."
14. It was urged that the decision of the Bombay High Court in Dahyabhai v. Kanayalal, AIR 1930 Bom 441 holding the will set up in that case to be a draft will, relied on by the learned single Judge was distinguishable from the facts of the instant case and that certain observations in that case really helped the appellant. In our opinion that case indeed is of no assistance to either party. It was also a case of a Hindu will of a time when provisions of Section 63 of the Act did not apply to such a will. Emphasis was placed in that case on this circumstance as is apparent from the following observation:
"We fully appreciate that as the deceased was not in Bombay there was no necessity for him to have the will executed in accordance with the requirements of the Succession Act. He could make an oral will."
For this reason not much significance can be attached to any stray observation made in that case.
15. Counsel for the appellant cited certain decisions interpreting Section 3(52) of the General Clauses Act containing the definition of "sign" and holding that the term 'sign' includes 'marks'. We, however, do not find it necessary to refer to those cases because putting mark in place of signature is permissible under Section 63 of the Act also in the circumstances stated therein and the instant one is not a case of putting mark by Professor G.D. Karwal in place of his signature.
16. Earlier we have referred to the decision of the Supreme Court in the case of Ch. Subbarao (AIR 1964 SC 1027) (supra) in support of the proposition that the purpose of signature is to authenticate the contents of the document, We shall now deal with this point in detail,
17. In Shorter Oxford English Dictionary, third Edition, the word 'signature' has been defined as follows:
"The name (or special mark) of a person written with his or her own hand as an authentication of some document or writing."
18. In Webster's International Dictionary the definition of the word 'signature' is in the . following terms:
"The name of any person written with his own hand, employed to signify that the writing which precedes accords with his wishes or intention."
19. In Stroud's Judicial Dictionary, Volume 5, Fourth Edition, it has been stated that: --
"a signature is the writing or otherwise affixing a person's name or mark to represent his name, by himself or by his authority 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."
Earl Jowitt in his dictionary of English Law, Second Edition, has stated that a person is said to have put his signature if "a person signs document when he writes or makes something on it in token of his intention to be bound by its contents."
20. In Corpus Juris Secundum, Volume LXXX also relying upon U. S. Fidelty etc. Co. v. Seigmann, 91 N. W. 473,474,87 minn. 175, it has been stated, "signing consists both of the act of writing a person's name and the intention in doing this to execute (or) authenticate".
21. In Hindustan Construction Co. v. Union of India, AIR 1967 SC 526 it was held:
"This brings us to the meaning of the word "sign" as used in the expression "signed copy". In Webster's New World Dictionary the word "sign" means "to write one's name on as in acknowledging authorship, authorising action, etc." To write one's name is signature. Section 3(56) of the General Clauses Act No. 10 of 1897, has not defined the word "sign" but has' extended its meaning with reference to a person who is unable to write his name to include "mark" with its grammatical variations and cognate expressions. This provision indicates that signing means writing one's name on some document or paper. In Mohesh Lal v. Busunt Kumaree, (1881) ILR 6 Cal 340, a question arose as to what "signature" meant in connection with Section 20 of the Limitation Act, No. IX of 1871. It was observed that "where a party to a contract signs his name in any part of it in such a way as to acknowledge that he is the party contracting, that is a sufficient signature". It was further observed that the document must be signed in such a way as to make it appear that the person signing it is the author of it, and if that appears it does not matter what the form of the instrument is, or in what part of it the signature occurs."
22. In Ram Dayal v. Brijraj Singh, AIR 1970 SC 110 while dealing with the provisions of the Representation of the People Act and the Rules framed thereunder it was held "signing, wherever signature is necessary, must be in strict accordance with the requirements of the Act and where the signature cannot be written it must be authorised in the manner prescribed in the Rule.''
23. There are many modes of putting signature some of which are: writing of the full name, putting the initials of one's name, putting some mark which cannot be deciphered as one's name. There is another aspect and it is about putting signature on a document in a manner as required by some statutory provision with the result that if, signature is not put in that manner, it will not amount to putting signature on that document or signing it. Thus even though the term "signature" will include writing one's full name but writing of one's full name will not amount to signature in every case because it is a settled principle that when law requires a particular thing to be done in a particular manner it has to be done in that manner or not at all. In Ramchandra v. Govind, AIR 1975 SC 915 it was held:
"A century ago, in Taylor v. Taylor, (1875) 1 Ch D 426 Jessel M. R. adopted the rule that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. This rule has stood the test of time. It was applied by the Privy Council, in Nazir Ahmed v. Emperor, 63 Ind App 372 = AIR 1936 PC 253(2) and later by this Court in several cases, Shiv Bahadur Singh v. State of Vindh Pra, (1954) SCR 1098 = AIR 1954 SC 322 - 1954 Cri LJ 910; Deep Chand v. State of Rajasthan, (1962) SCR 662 = AIR 1961 SC 1527 = 1961(2) Cri LJ 705 to a Magistrate making a record under Sections 164 and 364 of the Code of Criminal Procedure, 1898. This rule squarely applies "where, indeed, the whole aim and object of the legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other. Maxwell's Interpretation of Statutes, 11th Edn., Pp. 362-363." "
24. In this connection it may also be kept in view that writing one's name, parentage and address in the opening part of documents such as, sale deed, gift deed, mortgage deed, lease deed, agreements, promissory notes and even wills is customary in our country but invariably all these documents are signed by the executant and writing the name of the executant while describing his identity in the opening part of the document is not taken or treated as his signature in lieu of execution of that document.
25. In the background enumerated above, even though it is true that signature includes writing one's full name, can it be said that when Prof. G.D. Karwal wrote his name in the opening sentence of the will in question he signed the will as contemplated by Section 63(a) and (b) of the Act? In view of the customary manner of executing documents referred to above it would not be unjustified to presume that Prof. G.D. Karwal, who was a Professor in the University of Allahabad, knew that even though the name of the executor is written in the clause of a document containing his identity the document has yet to be signed after it has been written out. The deposition of P. C. Jain, one of the attesting witnesses, indicates that Prof. G.D. Karwal was anxious to ensure that his wife, the appellant, was not put to any difficulty after his death. Not signing the will, to say the least, contained a possibility of creating difficulty. In this context was it natural for him not only not to sign the will in question on his own but to deliberately refuse to sign it even on being requested to do so by P. C. Jain and tell P. C. Jain as deposed by him:
"I asked him that the Will has not been signed at the bottom, then he told me that I have already signed on the top and it is not necessary for me to sign at the bottom. Professor Karwal said that his signature was in the first tine of the Will, after the word T."
In the context of Sections 2(h) and 63(a) and (b), as seen above the purpose of signing a will is to authenticate the writing in the will containing the manner of disposition of property on the testator's death and obviously authentication of such writing by signature cannot be made unless the manner of disposition of property has been written out. In other words the writing containing the manner of disposition of property has to precede the signature of the testator.
26. When there was no dearth of space at least for putting his signature on the will in question nor was there any dearth of ink, why did Prof. G.D. Karwal adopt this unnatural attitude particularly when it is customary for an executant to sign a document after it has been written out notwithstanding the fact that his name stands written in the clause describing his identity is really intriguing. In our opinion the mere fact that the will in question was a holograph one is not sufficient to explain this unnatural conduct of Prof. G.D. Karwal. In these circumstances we agree with the view taken by the learned single Judge that the will in question had not been signed by Prof. G.D. Karwal as contemplated by Section 63(a) and (b) of the Act and it was only a draft will.
27. We also agree with him that even if the will in question is for the sake of argument treated to be signed by Prof. G.D. Karwal it cannot be relied on as a will inasmuch as the other legal requirement of attestation of a will as contained in Section 63(c) of the Act has not been proved. Out of the two attesting witnesses P. S. Jain has been produced as P. W. 2 to prove the attestation of the will. In his examination-in-chief he stated:
"Then I wrote the word 'witnesses' on both the sides of the page on which the will was written and also put my signatures on both the sides. I passed on my pen to my wife Smt. Shanti Jain who also signed on the same both the pages on which the Will was written."
In cross-examination, however, it was stated by P. W. 2 as under: --
"Prof. Karwal wrote both sides of the page on which the Will had been written with the same pen and ink. I signed with the same pen and ink. My wife also signed with the same pen and ink."
Even to the naked eye it is apparent that the ink and pen used by P. C. Jain and his wife Smt. Shanti Jain is different from the ink and pen used by Professor G.D. Karwal in writing out the will in question. In the joint affidavit of P. C. Jain and Smt Shanti Jain (Ex. Rl 1) it has been stated in para 11 that 'both the deponents saw the testator writing his name and affixing his stamp to the will'. P.C. Jain in his cross-examination, however, categorically stated that 'Prof. G.D. Karwal had not affixed any stamp on this will I cannot say whether he had a stamp or not'. These are vital contradictions and on account of them it becomes difficult to believe that the will was attested by the two attesting witnesses aforesaid on the date when it is said to have been written. The learned single Judge in this connection has also pointed out that on a bare look (at) original will it is apparent that the writing by Prof. G.D. Karwal was much older and a different pen and ink had been used. The word "witnesses" on both the pages and the signature of P. C. Jain and Smt. Shanti Jain appear to be very recent and the pen and the ink used by the attesting witnesses are entirely different from the ink and pen used by the testator. There is another circumstance which is rather unusual The other attesting witness, namely, the wife of P. C. Jain, has signed the will as 'Mrs. Shanti Jain". Normally the prefix 'Mrs/ is not used by a person while putting her signature. Mrs. Shanti Jain has not been produced to clarify this unusual mode of signature.
28. There is another vital circumstance which indicates that on the Rakshabandhan day in the year 1969 which fell in the last week of August, Professor G.D. Karwal would have been the last person to invite P. C. Jain or his wife Smt. Shanti Jain to attest his will. Ex. R. 12 is a diary of the year 1969 maintained by Prof. G.D. Karwal, P.C. Jain, P. W. 2, has admitted that this diary is in the handwriting of Prof. G.D. Karwal. Smt. Leela Karwal, P. W. 1 has stated in her deposition : "This will was executed on the Rakshabandhan day. Most probably, it was 27th or 28th August, 1969." It has come in evidence that some theft had taken place in the house of Prof. G.D. Karwal sometime near about July, 1969. The diary aforesaid contains inter alia the following entry on 23rd July 1969 :
"Johra said he fears police -- he, Shiv Shanker, S. Shanker's wife and one Chhote jointed in it and thefts (sic) in the compound. Some clothes recovered from Shiv Shanker's wife who brought them and put before all present.......... present-- Prof. Jain's relation and son who had (?) sent for to witness the confession of Zohra and Shiv Shanker's wife."
The diary dated 25th July, 1969 contains inter alia the following entry :
''Went to Prof. P.C. Jain to ask him about his relation and son who were present at the confessions of Johra and Shiv Shanker's wife and that latter producing some clothes belonging to us to sign as witnesses to the fact. He practically refused to my. great shock although I told him that only truth was to be told."
The diary dated 28th July, 1969, on the other hand, contains inter alia the following entry :
"Prof. P.C. Jain again gave us shock when he asked us to pay Shiv Shanker though he admitted to have done grave wrong. He appeared to me to be protecting the wrongdoer and not caring a bit for the losses we had undergone. His plea was that we would get the payment from the Insurance Co. We told him we could not let the fellow fatten on theft from our house and we to claim them from the Co."
Having been so disgusted and disappointed with the behaviour of Prof. P.C. Jain and having expressed his shock at his behaviour on 25th July, 1969 and 28th July, 1969 it does not appear natural that in only a month's time thereof he will himself call the same Prof. P.C. Jain and his wife to attest his will, when the feeling of Prof. G.D. Karwal was that P.C. Jain was reluctant to ask his relation and son to speak about the truth in regard to confessions of Zohra and Shiv Shanker's wife and that he appeared to be protecting the wrongdoer and not caring a bit for his losses. He would have, in view of the normal course of human conduct, not required Prof. P.C. Jain and his wife to attest a solemn document like a will for there was no guarantee that in the hour of need such attesting witnesses-would come to the rescue of his wife Smt. Leela Karwal. Normally, only such persons are required to attest a Will on whom the testator has complete faith in regard to their straightforwardness and their willingness to state the truth when needed. This circumstance also, therefore, supports the view taken by the learned single Judge that P.C. Jain and his wife had signed the will as attesting witnesses on some subsequent occasion when dispute had arisen in the family between the parties and not on the Rakshabandhan day in the year 1969 when the will is said to have been executed. There is another circumstance which deserves to be taken notice of. Even though the diary Ex. R-12 contains entries about some minute details no entry about any will having been executed by Prof. G.D. Karwal either on 27th August, 1969, or 28th August, 1969, is to be found. It is for all these reasons that we agree with the finding of the learned single Judge that the attestation of the will in question has not been proved.
28. Counsel for the appellant made an alternative submission also that as is clear from his deposition P.C. Jain had received a personal acknowledgment from Prof. G.D. Karwal of his signature on the will as contemplated by Section 63(c) of the Act and as such the will should be held to have been duly attested and executed Suffice it to say so far as this submission is concerned that when we have disbelieved the presence itself of the attesting witnesses at the time of the will in question being written by Prof. G.D. Karwal, no question of his making acknowledgment before any of the attesting witnesses arises.
29. It was pointed out by counsel for the appellant that on the death of Prof. G.D. Karwal it was J.D. Karwal himself who made the application in the Nagar Mahapalika, Allahabad, for mutating the name of the appellant alone as owner of tht house aforesaid in place of Prof. G.D. Karwal. He also referred to some correspondence in which J.D. Karwal assured the appellant that he will give all assistance to her so that she was not put to any inconvenience consequent upon the death of Prof. G.D. Karwal. On that basis it was urged that the conduct of J.D. Karwal was in conformity with the existence of the will for otherwise when Prof. G.D. Karwal had left seven heirs under the Hindu Succession Act he would not have agreed to the name of the appellant alone being recorded as owner of the aforeaid house. This has been explained by J.D. Karwal in his deposition. He has stated that since he was in service in the army and his brother was residing in England and all the daughters except Krti. Janak Karwal were married and Km. Janak Karwal was crippled it was considered expedient to get the name of the appellant mutated. In this connection, however, it may be pointed out that subsequently some of the heirs of Prof. G.D. Karwal objected to the house being mutated in the name of the appellant alone and their objection was accepted. We are informed that appeal against that order has been filed by the appellant and is pending. It appears from the material on record that on the death of Smt. Lajwanti the first wife of Prof. G.D. Karwal in 1926 the appellant who was the sister of Smt. Lajwanti was married to Prof G.D. Karwal. She brought up the children of Smt. Lajwanti also and that during the lifetime of Prof. G.D. Karwal and for a considerable period after his death the relations between them were very cordial The parties have given different reasons for the relations between the appellant on the one hand and the children of Smt. Lajwanti on the other becoming strained later on. According to the appellant, Km. Janak Karwal was responsible for the strained relations inasmuch as she subsequently started creating trouble for the appellant. On the other hand according to J.D. Karwal respondent No. 1, the appellant taking the advantage of his attitude and of his brothers and sisters subsequently started negotiating to sell the house and to leave Allahabad for good to reside with her daughter. Suggestion in this behalf was put in cross-examination to the appellant. A suggestion was further put to P.C. Jain in cross-examination that he himself was anxious to have the aforesaid house inasmuch as an application for release of the landlord of the house, in which he was living, had been allowed. Both the appellant and P.C. Jain have however denied the suggestion. In our opinion it is not necessary to go into this controversy because it is immaterial for determining the question as to whether the will relied on by the appellant had been duly executed by Prof. G.D. Karwal or not.
30. It was also urged" by counsel for the appellant that a photocopy of the will had been given to J.D. Karwal near about the date on which the 13th day ceremony of Prof. G.D. Karwal was performed and as such it was not right to say that the will in question saw the light of the day about 13 years after the death of Prof. G.D. Karwal. J.D.. Karwal has specifically denied any photocopy of the will being given to him as alleged by the appellant. As regards the case set up by the appellant suffice it to say that there are such material contradictions in this behalf that it is not possible to believe that any photocopy of the will was given to J.D. Karwal as alleged by the appellant Ex.'P14 is a letter dated 6th April 1982, by the appellant to J.D. Karwal wherein she has stated that before the 13th day ceremony of Prof. G.D. Karwal you had taken the original will for getting it photographed. This letter, therefore, indicates that the original will itself had been given by the appellant to J.D. Karwal even before the 13th day ceremony of Prof. G.D. Karwal for getting it photographed. P.C. Jain on the other hand in his deposition has stated:
"After two or three days of the 13th day ceremony I went to the house of Prof. Karwal and there Col. J.D. Karwal asked me as to what is happening to the arrangements of the property. I then asked Smt. Leela Karwal "ammaji" to bring out the will of Professor G.D. Karwal. The will was shown to every person who was present there. At that time Col J.D. Karwal wanted a copy of the said will. Mrs. Leela Karwal did not trust him. She gave the will to me and asked me to go with Col. Karwal for getting a photo made of the will. Ex. P-6 is the photocopy of the will. One photocopy of the will was given to Col. J.D. Karwal and the other copy along with the original was given to Smt. Leela Karwal."
P.C. Jain has also stated that he had gone to the photographer accompanied by J.D. Karwal. The photographer who photographed the will couid have been the best person to indicate as to when and at whose instance the will was photographed. He, however, has not been produced by the appellant. As regards J.D. Karwal he has stated in this behalf that it was absolutely false to say that he along with Prof. P.C. Jain had gone to a photographer to get the photograph of the will prepared and it was wrong to say that Prof. P.C. Jain handed over a photocopy of the will to him. Consequently there was no question for J.D. Karwal summoning any photograher. In view of the material contradictions pointed out above it is difficult to believe that a photocopy of the will in question was given to J. D, Karwal as alleged by the appellant. Indeed it will be relevant to point out in this connection that the appellant in her deposition has admitted in her cross-examination that it was for the first time in 1982 that she had given a photocopy of the will to her lawyer. If a photocopy of the will had been obtained in 1969 itself, in the normal course of human conduct, it was expected of the appellant to have given it at least to her counsel when several proceedings for instance for mutation and succession certificate as also proceedings under the Estate Duty Act were going on.
31. In view of the findings that the will has not been proved to have been signed by Prof. G.D. Karwal and attested as contemplated by Section 63 of the Act. This appeal is liable to be dismissed even without going into the other circumstances mentioned by the learned single Judge in the judgment appealed against in support of his finding that the case set up by the appellant that Prof. G.D. Karwal had executed the will in question was not believable. However, since counsel for the respondents has during the course of his arguments placed considerable emphasis on those circumstances we consider it expedient to deal with them also, but since we are in agreement with the view of the learned single Judge in regard to the appraisal of evidence on this point we are of opinion that it is not necessary to restate the effect of evidence or reiterate the reasons given by the learned single Judge. In Girijanandini v. Bijendra Narain, AIR 1967 SC 1124 was held:-
"It is not the duty of the appellate Court when it agrees with the view of the trial Court on the evidence either to restate the effect of the evidence or to reiterate the reasons given by the Trial Court. Expression of general agreement with reasons given by the Court decision of which is under appeal would ordinarily suffice."
The broad facts and circumstances on account of which we are in agreement with the finding of the learned single Judge are these. The salient features of the will in question are that it does not bear any date. Even the attesting witnesses have not put any date below their signatures. Prof G.D. Karwal except writing his name in its opening sentence has not signed it anywhere. The signatures of the attesting witnesses even to the naked eye appear to have been made with a pen and ink different from the pen and ink used in writing its contents by Prof. G.D. Karwal. The space in between two lines towards the bottom of the reverse side of the half sheet of paper containing the will in question is comparatively lesser than the space elsewhere and indicates an effort to contain the entire contents on the same sheet of paper. Even after doing so some of the contents were still left out and were written in the margin of the reverse side. It has several cuttings and some additions too on both the sides none of which has, however, been initialled. Even the ink towards bottom of the reverse side of writing is of different shade than the ink used elsewhere. Its apperance as a whole creates an unmistakable impression that a draft of a will was prepared by Prof. G, D. Karwal on the sheet in question which must have been contemplated to be faired out on some proper durable paper as is normally used for writing such solemn documents but for some reason known only to Prof. G.D. Karwal it was never so faired out. This explains why this document does not contain the signature of Prof. G.D. Karwal or even the date on which it was written. This also explains the various cuttings and alterations not being initialled and the effort to scribble out the whole contents on an ordinary half sheet of paper and even using two shades of ink in doing so. Naturally, the care and caution which is normally exercised while executing a solemn document like a will were not expected while scribbling the draft of a will The draft appears to have been got signed subsequently, by the attesting witnesses P.C. Jain and his wife. Sri P.C. Jain has admitted in his deposition that he has been very close to the appellant and interested in her welfare. The will was not produced in the various proceedings which took place after the death of Prof. G.D. Karwal and before the filing of the petition for the grant of the letters of administration. Even in the mutation proceeding it was filed only in the year 1982. From the deposition of J.D. Karwal, respondent No. 1, it appears that house No. 464 Mumfordganj, Allahabad is a very big house containing 42 rooms and is constructed over a plot of land of about 2,000 sq. yards. The will in question indicates that there were certain bank accounts and certificates etc. in the joint names of Prof. G.D. Karwal and the appellant Smt. Lila Karwal all of which were bequeathed to the appellant. Under the will in question the sons and daughters of Prof. G.D. Karwal were to get a share only in the cash in bank and other security etc. which stood solely in the name of Prof. G.D. Karwal. Smt. Leela Karwal, the appellant was herself a lecturer in the University of Allahabad and as is apparent from her deposition, she retired in the year 1982 i.e. after 13 years of the death of Prof. G.D. Karwal Since the cash and security etc. standing in the joint names of Prof G.D. Karwal and Smt. Leela Karwal of considerable value were given exclusively to the appellant and she was in service in the University of Allahabad and was to remain in service for about 13 years after the execution of the will in question which is said to have been executed in 1969, there was little chance of the appellant being put in strained financial circumstances on the death of Prof. G.D. Karwal. That apart, even if no will had been executed she would under the Hindu Succession Act have been entitled to a l/7th share in the aforesaid big house which would have been sufficient not only for her residential purpose but she would also have been in a position to let out some portion thereof which may earn additional income for her. Her only daughter had already been married and as is apparent from the evidence on record is well placed. Apart from the share which the appellant would have got, her daughter also would have got a 1/7th share in the house aforesaid. Nothing has been brought to our notice to indicate that the behaviour of the issues of Prof. G.D. Karwal from his first wife was such during his lifetime which may have given an occasion for disillusionment to Prof. G.D. Karwal so as to justify the taking of the extreme step of completely disinheriting them from such a big house as aforesaid. True, that if the execution of the will had been established this circumstance that Prof. G.D. Karwal had given no share to his children in the aforesaid house and had given it exclusively to the appellant would not by itself have constituted any valid ground for refusing grant of letters of administration. But it certainly constitutes a suspicious circumstance as laid down by the Supreme Court in the cases already referred to above while dealing with the principles for deciding the question about the genuineness of a Will. Not only that the appellant did not produce the will in question in earlier proceedings prior to the year 1982 she also admittedly filed an application for succession certificate in respect of those properties which purported to have been bequeathed under the will in question by Prof. G.D. Karwal to his children and in which the appellant was not given any share. This conduct of the appellant apparently militates against the existence of a will. As pointed out by the Supreme Court in the case of Jaswant Kaur (AIR 1977 SC 74) (supra) in cases where the execution of a will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What generally is an adversary proceeding becomes in such cases a matter of the Court's conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the will is such as to satisfy the conscience of the Court that the will was duly executed by the testator. On the material on record we are of opinion that the appellant has not succeeded in doing so.
32. Before parting with the case we consider it our duty to point out that certain cases have been cited by counsel for the appellant for the proposition that letters of administration cannot be refused merely on the ground of delay in applying for it. Likewise he has cited certain cases wherein it has been held that the intention of the testator had to be ascertained from the language of the will, that the will had to be interpreted in a manner which gave effect to the intention of the testator and that the wishes of the testator are to be respected. Since the law on these points is clearly well-settled and we are in agreement with the learned counsel for the appellant on these points we have not found it necessary to deal with those cases. This, however, is of no help to the appellant inasmuch as the petition for grant of letters of administration filed by her is not being dismissed on the ground of delay in filing it and the question of finding out the intention of the testator and giving effect to it or respecting it arises only after it has been established that the will has been executed as contemplated by Section 63 of the Act which, as held earlier, has not been done in the instant case.
33. In the result, we find no merit in this special appeal. It is accordingly dismissed. But in the circumstances of the case, there shall be no order as to costs.