Judgement

Appeal (No. 6 of 1927) by special leave from two decrees of the Court of the Judicial Commissioner of Oudh (November 25, 1924) affirming two decrees of the Subordinate Judge of Partabgarh.

The question in the appeal was whether legacies provided by the will of a deceased Oudh taluqdar in favour of his sons were void under s. 54 of the Indian Succession Act, 1865, by reason of the sons being attesting witnesses of the will.

Both Courts in India had held that the signatures of the sons had not been attached to the will as attesting witnesses within the meaning of that section.

The facts appear from the judgment of the Judicial Committee.

1927. July 15. De Gruyther K.C. and Dube for the appellant.

Dunne K.C. and Hyam for the respondent.

Oct. 18. The judgment of their Lordships was delivered by

MR. JUSTICE DUFF. This is a consolidated appeal from two decrees, both of November 25, 1924, of the Court of the Judicial Commissioner of Oudh at Lucknow, which were pronounced in an appeal from the Subordinate Judge of Partabgarh. The question raised by the appeal is whether certain legacies in a will of the late Drigbijai Singh, a taluqdar of Athgawan, in the District of Partabgarh, are valid, and the answer to that question must be governed by the determination of the issue, which was the real issue in the Courts below, whether or not the legatees entitled to the benefit of these legacies, if valid, signed the will as attesting witnesses. The Court of the Judicial Commissioner held, affirming the decision of the Subordinate Judge, that the issue must be determined in favour of the respondents.

The testator, by his will, appointed his eldest son, Lal Bahadur Singh as taluqdar after him, and gave to each of his three younger sons, Jagannath Singh, Ran Bahadur Singh and Jang Bahadur Singh, certain villages out of the taluqa, to be held absolutely with heritable and transferable rights as under proprietors if and when they or any of them wished to separate from their eldest brother ; but " so long as they live in union among themselves with the taluqdar," the taluqa was to remain undivided, and the income therefrom was to be " spent on the whole family," after paying government and village dues.

The testator also directed the division of his movable property in case of a separation, and by para. 8 he declared " I have executed this will with the consent of all my sons and have got them to sign it as witness with this very purpose so that this will may be acted upon fully and they may not quarrel among themselves after my demise."

As to the genuineness of the will there is no dispute. Admittedly, also, disregarding the signatures of the testators four sons, the execution of the will is attested by a sufficient number of attesting witnesses, in conformity with the law in force in the Province of Oudh.

As would appear from an inspection of the translation of the will, which is the plaintiffs exhibit 1, as reproduced in the record, it was signed by the testator as " executant," and below the testators signature, after the signature of one of the witnesses, who, it is not disputed, was an attesting witness, there are the signatures of his four sons, and, below them, the signatures of three other persons who also admittedly signed as attesting witnesses. In the margin on the left of these signatures, and just above the signature of the first attesting witness, appears the word " witnesses." The appellant, who is the son of the eldest son of the testator, on the strength of a passage in the judgment of the Subordinate Judge, contended that in the original will the word " witness " appears opposite each of the signatures below the testators, including those of the sons. As in their Lordships opinion it is immaterial, for the purpose of deciding the question before them, whether or not this was the form of the original document, it may be assumed that the appellants contention upon this point is well founded.

The will is dated December 17,