A person who signs a will on behalf of the testator, after the testator has affixed their mark, can be considered a competent attesting witness under Section 63(c) of the Succession Act.

Narayan, J.

1. This appeal arises out of an application for the grant of Letters of Administration. The respondent" had filed an application before the learned District Judge of Shahabad praying that Letters of Administration be granted to him with regard to the estate of Jhagru Upadhaya who had executed a will dated 11-8-1945 in his favour. The present appellant, who happens to be an agnate of the late Jhagru Upadhaya, had filed an objection and his contention was that the will propounded by the petitioner was a forged and a fabricated document. He further asserted that even if the father of the petitioner had managed to get a will executed by Jhagru Upadhaya by defrauding him or exercising pressure upon him, no Letters of Administration could be granted to the petitioner.

2. The learned District Judge came to the conclusion that the will propounded by the petitioner was a genuine document and that no fraud had been practised for the execution of the will nor had the late Jhagru Upadhaya been deceived or imposed upon. He further found that the document had been validly executed and that the requirement of the statute had been fully complied with. In this view of the matter, the learned District Judge decreed the suit and directed that Letters of Administration with a copy of the will annexed be issued to the respondent.

3. The objector has, consequently, come up in appeal, and Mr. Tarkeshwar Nath who has argued this appeal on his behalf has submitted two points, the first being that the document cannot be deemed to be a document executed and attested according to law, inasmuch as the petitioner was not able to prove that it had been attested by two witnesses, and the second being that the requirements of Section 68, Evidence Act, cannot be deemed to have been fulfilled in this case.

4. I shall dispose of the second point first which, in my opinion, does not present any real difficulty. Though the document purports to have been attested by more than two witnesses, one of the attesting witnesses, Bamayan Ojha, has come as a witness on behalf of the objector and has denied his alleged signature on the document and except him and P. W. 1 the others have not been examined. The attesting witness examined in this case is one Lalmoni Sahai (P. W. 1) and it has not been contended before us that his evidence as to attestation by himself should not be accepted. Mr. Tarkeshwar Naths submission has been that he does not prove the attestation by any other witness.

According to the petitioners contention this Lalmoni Sahai has proved not only his own attestation but also the attestation by a witness called Ramnagina Ojha. and this Ramnagina Ojha, though he has signed the document on be- half of the executant, Jhagru, is also to be regarded as an attesting witness. Whether Ramnagina is to be regarded as an attesting witness or not will be considered by me when I deal with the first point, but for the present I have to say that there does not appear to be any substance in the contention of the learned Counsel that execution by Jhagru and attestation by more than, one witness has not been established in this case, Lalmanis statement is that Ramnagina signed for Jhagru at his request, that Jhagru put his penmark, that he (Lalmoni) attested the will and that the several attesting witnesses signed in his presence. Quite manifestly, these statements go to show that whatever be the nature of the execution and the attestation, the whole thing took place in presence of Lalmoni. In other words, whatever was written by Ramnagina and whatever was done by the executant Jhagru was done in presence of Lalmani. Besides Lalmani, there is another witness, P. W. 2, the father of the petitioner who also has stated that the will was duly attested and executed in his presence, and it appears from the evidence of this witness that Ramnagina is dead and that Bamayan Ojha is siding with the opposite party, Lalmani. Though he was cross-examined in detail with