An illiterate attesting witness can validly attest a will by making a mark or thumb impression on it.

Sen, J—This is a second appeal by Sangita, Defendant 1, against the judgment and decree of the Court of the 2nd Additional District. Judge, Yeotmal, upholding the Plaintiff's claim for partition and separate possession of the field in suit.

2. The admitted facts are these. Bapuji was the father of the Appellant Sangita and Defendant 2 Jairam. He died on 27-9-1939. The Plaintiff Ambabai is the wife of the Appellant. Originally the field in suit, survey No. 7/1, at 'mouza' Khadag 'alias' Udapur, belonged to Champatrao, husband of Baijabai, and Bajirao husband of Multabai. Bajirao predeceased Champatrao who became the sole owner of the field. He died in 1927. After his death, Baijabai and Multabai executed a gift deed in favour of Bapuji Ex. D. 2 on 23-7-1928. This field is in the possession of the Defendants. Baijabai died in 1935.

3. The Plaintiff instituted a suit on 14-8-1943 for partition and delivery of separate possession of the western half share in the field on the allegation that Bapuji had executed a will on 4-9-1928 bequeathing half share in the field to her. She alleged that she had demanded possession of the field from the Defendants, but the demand was refused. The Defendants had no right to the entire field.

4. The Defendants contested the claim on numerous grounds. They denied the executions and attestation of the will dated 4-9-1928. They further submitted that the field was not the absolute property of their father and was not in his exclusive possession. Though the gift deed was in the name of Bapuji, the field was given to Bapuji and Defendants who were members of a joint Hindu family. Bapuji could not in law make a will. After his death, the field alone with other property devolved on the Defendants by survivorship. In the alternative, their case was that the field was thrown into the common stock since the date of the gift. As Baijabai had only a life interest, the gift could not operate beyond her life. Bapuji had, therefore, no right to the field after her death.

5. The original will was a registered will. It was not produced at the trial. A certified copy of the will was filed with the plaint. This will is scribed by Maniram (P.W. 2) and attested by the two attesting witnesses Govinda (P.W. 3) and Vithu (P.W. 4). Vithu had affixed his -thumb mark on the will.

6. The trial Court held that the gift was for Bapuji alone and not for his family including his sons. There was no proof that the field was thrown into common stock so as to become joint family property of Bapuji and the Defendant. It was the separate property of Bapuji alone. These findings were upheld by the lower appellate Court. Regarding the will, the trial Court found that the will was not properly attested and it was, therefore, invalid. The reason for this view was that one of the attesting witnesses had only made a mark and not signed the will as required by Section 63(c), Indian Succession Act. The trial Court dismissed the suit as the will on which the Plaintiff based her title was not proved. The lower appellate Court took a contrary view and held that the attestation of the will was valid even though one of the attesting witnesses had only put a mark. The Defendants had no right to resist the Plaintiff's claim even though the gift may not be binding on reversioners.

7. The main contention in this appeal is about the execution, attestation and validity of the will in question. The learned Counsel for the Appellant argues that as loss of the original will was not established, secondary evidence of the will was inadmissible.

8. This contention is not sound. Apparao (P.W. 1), a cousin of the Plaintiff, stated in evidence that the will could not be found. No objection was taken to the production of a certified copy of the original will as secondary evidence. A copy of the will was attached to the plaint. The Defendants raised no objection when the scribe Maniram (P.W. 2), Govinda (P.W. 3) and Vithu (P.W. 4) attesting witnesses of the will w