The main legal point established in the judgment is the requirement for a person to sign as a witness for attestation, as interpreted under S. 63, Succession Act.

DAS GUPTA, J. :- The question for decision in this appeal is whether the signature of ore Sarat Chandra Chattopadhyay who, apart from having written the will, saw the testator execute the will and affixed his signature in the presence of the testator is sufficient attestation within the meaning of S. 63, Succession Act. The testator Chandra Mohan Roy had in the year 1924 executed a will by which he left certain properties to his two nephews (brothers sons), Kshirode Mohan Roy and Nirode Mohan Ray and left the residue to his daughters sons. In 1926, he executed another will which is the subject-matter of the present litigation and by this will he left certain properties to Kshirode Mohan Roy and the residue to his daughters sons. Chandra Mohan Roy, the testator, disappeared shortly after the execution of this will in 1926 and has not been since heard of by the persons who are likely to hear of him if he was living. Charu Chandra Mazumdar, who is Chandra Mohans daughters son, applied for letters of administration with a copy of the will annexed and citation having issued on the brothers sons, Nirode Mohan entered caveat. The grounds on which he raised objection were that the alleged will has not been executed by Chandra Mohan; that it had not been attested according to law and that Chandra Mohan at the time of the alleged will had no testamentary capacity. 2. The learned Probate Court has come to the conclusion that the will was duly executed, attested in accordance with law and that Chandra Mohan had testamentary capacity at the time of the alleged will. It has accordingly ordered letters of administration with a copy of the will annexed to be issued to the applicant Charu Chandra Mazumdar.

3. In this appeal by Nirode Mohan Roy, the findings of the trial Court on the question of the execution of the will by Chandra Mohan Roy or on the question of his having testamentary capacity at the time of the will are not disputed. The one point on which the appeal has been pressed by Mr. Ghose appearing on behalf of the appellant is that assuming that Sarat Chandra Chattopadhay, the scribe of the will, affixed his signature in the presence of the testator, this would not amount to attestation within the meaning of law. Mr. Ghose contends that while it is necessary for such an act of signature to amount to attestation that the signatory must have seen the testator sign the document and must have signed it himself in the presence of the testator, these facts are not sufficient for the act to amount to attestation, but that it is also necessary that at the time the signature was affixed this signatory did so by way of saying that he had seen the execution. He admits that no words are necessary to be actually put on the document to the effect that he had seen such execution; but it is necessary, according to him, that the Court from a consideration of all the circumstances including the position of the signature in the document and the evidence of the witnesses must be in a position to bold that at the time the signature was affixed, the signatory did do so by way of saying that he had been the execution. Mr. Ghose bas tried to convince us that in this case the circumstances and the evidence do not justify such a conclusion.

4. Mr. Bajendra Bhusan Bakebi appearing on behalf of the respondent has tried to convince us, on the contrary, that the circumstances of the case including the oral testimony of the witnesses do justify the conclusion that at the very time Sarat Chandra Chattopadhyay, the scribe of the document, affixed his signature be did so in the capacity of a witness, by way of saying that be had witnessed the execution. He has also contended that even if we are not prepared to come to such a conclusion, this appeal should fail; for, according to him, the law does not require for the act of signing to amount to attestation that the signatory must at that very time affix the signature in the capacity of a witness. It is suffici