Das Gupta, J.:— The question for decision in this appeal is whether the signature of one Sarat Chandra Chattapadhyay 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 section 63 of the Indian 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 (brother's sons), Kshirode Mohan Roy and Nirode Mohan Roy and left the residue to his daughter's 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 daughter's 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 Mohan's daughter's son, applied for Letters of Administration with a copy of the will annexed and citation having issued on the brother's sons, Nirode Mohan entered caveat. The grounds on which he raised objection were that the alleged will had 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. 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 Chattopadhy-ay, 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 hold that at the time the signature was affixed, the signatory did do so by way of saying that he had seen the execution. Mr. Ghose has tried to convince us that in this case the circumstances and the evidence do not justify such a conclusion.

3. Mr. Rajendra Bhushan Bakshi 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 witness do justify the conclusion that at the very time Sarat Chandra Chattopadhyay, the scribe of the document, affixed his signature he did so in the capacity of a witness, by way of saying that he 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 witness. It is sufficient, according to him, if the signatory has seen the testator execute the will and has put his signature in the presence of the testator.

4. Before coming to a consideration of the fact whether Sarat Chandra Chattopadhyay affixed his signature on this will as a witness or not, it will be proper to arrive at a decision on the question of law which is in dispute.

5. On the question whether for an act of signing to amount to attestation it is necessary in addition to the fact of the signatory seeing the testator execute the document and his affixing the signature in the presence of the testator, that the signatory must at the time of affixing any signature do so in the capacity of a witness, there has been divergence of judicial opinion. In this court, the question came up for consideration as early as the year 1880 in the case of Hurro Sundari Dabia v. Chandra Kanta Bhattacharjee(8). It was held by Garth, C.J sitting with Mitter, J. that if the Registrar and the person who identified the testatrix at the time of registration signed their names in the presence of the testatrix as attesting her own admission that she had signed the will, that would be sufficient, as an attestation, to satisfy the requirements of the law. A different note was struck a few years later by Harrington, J. sitting on the Original side of this Court, in the case of Raj Narain Chose v. Abdur Rahim(1). Harrington, J., held in that case at p. 455 that “In the absence of anything to show that it is incumbent upon the attesting witness to be described as such in a deed which he attests, I am of opinion that a person who was present and witnessed the execution and whose name appears on the document is a competent witness to prove the execution “and as in this case it was shown that two persons were present and saw the executant sign the deeds and one of them had been called to prove what passed, this proof was sufficient and the execution of the mortgage deeds was good. The same view was taken in the case of Dinamoyee Debi…Defendant, v. Bon Behari Kapur…Plaintiff, .(2), and in the later case of Jagannath Khan v. Bajrang Das Agarwala(3). In this last-mentioned case, objection was clearly taken that where a person who is present and witnesses the execution of a deed is therein described merely as the writer of the deed he is not an attesting witness within the meaning of the law. This objection was rejected by the learned Judges. The Privy Council decision in Shamu Patter v. Abdul Kadir Ravuthon(4), was cited in that case but the learned Judges of this Court held that the Privy Council case turned on the question whether a person could attest a document on an acknowledgment by the executant that the signature on the document was his and did not feel themselves bound by the other observations of their Lordships of the Privy Council on what amounted to attestation.

6. The same view of the law has been taken in a number of decisions of other High Courts. In the case of Radha Kishen v. Fateh Ali Ram(5), it was held that a deed might be legally proved by the evidence of the scribe who had signed his name, but not explicitly as an attesting witness, on the margin and had been present when the deed was executed. It appears that the learned Subordinate Judge from whose decision the appeal was made to the High Court considered that as the scribe was not an attesting witness, his evidence was not legally sufficient to prove the bond. “The Court held that if the Munsif and the Subordinate Judge believed the evidence of the scribe they were quite at liberty on that evidence alone to find that the bond had been executed. It is not very clear from this report what in fact the evidence of the scribe was, but apparently the evidence merely showed that the scribe had seen the executant execute the bond and had himself signed in the presence of the executant and did not show that he had signed as an attesting witness.

7. In Paramasiva Udayan v. Krishna Pada-yachi(6) which was also cited in support of this view, it appears that the learned Judges refused to accept a proposition that merely because a person had called himself a scribe, he was incapable of being regarded as an attesting witness. An observation occurs in one part of the judgment (at p. 536) which was delivered by Seshagiri Ayyar, J. that “the essence of attestation is that the person must have seen the document executed.” This judgment was mainly directed to show that it would be wrong to say that under no circumstances could a scribe be an attesting witness. The question which now demands our consideration, namely, whether it is also necessary that the scribe should sign as an attesting witness does not appear to have been directly considered there. Another decision of the Madras High Court which has been cited before us is that in Veerappadayan v. Muthukarappan Thevan(7), where it was held that when the writer of a document signs his name below the executant's, whether he can be regarded as an attesting witness must depend on the facts and circumstances of each case and that to be so regarded it is not necessary that he should describe himself as a witness or that there should be a testimonium clause, provided it appears that he intended to attest the execution. An observation on which much reliance was put by the learned Advocate for the Respondent runs thus: “Where he subscribes his name at the time of execution it would not be improper to presume that he intended to attest the execution.” As has been noticed, in the very first case which came before this Court, namely, the case of Hurro Sundari Debia v. Chunder Kant Bhuttacharjee, Garth, C.J, took care to mention that to prove attestation it must be shown that the persons, namely, in that case, the Registrar and the identifying witnesses, signed their name in the presence of the testatrix “as attesting her own admission that she had signed the Will.” This view that it is necessary that the signature should be as attesting the admission of execution was strongly underlined by Chief Justice Rankin in Abinash Chandra Bidyanidhi Bhattacharjee v. Dasarath Malo(9). The question which came up for consideration in this case was whether a person who was in fact the scribe and had affixed his signature—apart from another signature on the margin to the effect that he had read the document out to the executant and also that he had put in certain alterations as the executant desired underneath the word “scribe,”—is an attesting witness so as to satisfy the requirements of the law. It was held that unless it was further clear that this signature was by way of saying at the time that he had seen the execution of the document, he is not an attesting witness. Rankin, C.J, delivering the judgment of the Court discussed in some detail the definition of “attested,” as given by Act XXVII of 1926 amending the Transfer of Property Act. His Lordship pointed out that a man's name may be put on an instrument by way of authenticating a statement that the supposed testator did not execute; it may be put by way of professional advertisement to show that he acted as the scribe or by way of showing that he acted as the scribe for other purposes than professional advertisement: it may be put down for authenticating a particular correction in the body of the deed: and proceeded to say that in all these cases, it seemed wrong to say that because the man's signature is on the document at all— disregarding the purpose for which it is on the document and disregarding altogether what his signature is put to authenticate— the man in question is an attesting witness. His Lordship then said: “To take the ordinary case, a man is an attesting witness when he has seen the execution of the instrument and has put his name on the document by way of saying at the time that he has seen the execution of the document.” In a recent decision of this Court, In the goods of Goad Chand Gandhi(10), Sen, J., sitting singly accepted this view of the law.

8. This view found favour with the learned Judges of the Bombay High Court in Ranu Bin Shivji Borate v. Laxmanrao Krishna Limaye(11). Their Lordships referred to the observation of Lord Campbell in the English decision in Burdett v. Spilsbury(12): “What is the meaning of an attesting witness to a deed? Why it is a witness who has seen the deed executed, and who signs it as a witness,” and said, this was the meaning of attesting witness in sec. 68 of the Evidence Act. On this view of the law, they held that where the writer of the deed in concluding the writing of the body of the document stated that it was written by him, he could not be treated as an attesting witness. This decision was followed by the same Court in Dalichand Shivram Marwadi v. Lotu Sakharam Pardhi(13) and it was held that a writer of a document who puts his signature at the end of a document could not be treated as an “attesting witness” unless he actually signed as an attesting witness in the document. The Bombay High Court has accepted this view of the law again in a very recent decision in Timmavva Dundappa Budihal…Plaintiff v. Channava Appaya Kanasgeri…Defendant .(14). Reference has been made in the judgment of this case to a Privy Council decision, Sar-kar Barnard & Co. v. Alak Manjary Kuari(15), where this view is said by the learned Judge to have been indirectly accepted.

9. The Allahabad High Court which in the earlier case of Radha Kishen v. Fateh Ali Ram had taken a different view, accepted in the later decision of Badri Prasad v. Abdul Karim(16) the view that to be an attesting witness within the meaning of sec. 68 of the Evidence Act, the witness must have seen the document executed and have signed it as a witness. Reliance was placed among others on the English decision Burdett v. Spilsbury mentioned above.

10. It seems clear on a consideration of these authorities that though even in recent years a discordant note has now and then been struck, the view that has prevailed in almost all the High Courts in recent years is that in order to be an attesting witness a person need not only see the execution and sign in the presence of the executant but must also sign as a witness. In view of the divergence of judicial opinion mentioned above, I have tried to approach the question myself as if there was ho authority to influence my decision. I have examined for this purpose the phraseology of sec. 63 of the Indian Succession Act which runs thus:

(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…… and each of the witnesses shall sign the Will in the presence of the testator…………..”

11. It seems to me of some importance that although in the latter part of the section the word “sign” is used, in the clause “each of the witnesses shall sign the Will,” a different word “attested” was used in the earlier portion. This difference will be meaningless except on the view that “attested” means something more than mere signature of a person who has seen the testator sign. We often use the words “attested by me” when putting a signature below the signature of some other person whom we have seen signing. The word “attest” in such a context can only mean that I have put the signature as testifying to the fact that I have seen the person sign. It is clearly not necessary for a person to be an attesting witness within the meaning of law that words of this nature “attested by me” or any other words should be used. But the deliberate use of the word “attested” in preference to the word “signed” will be meaningless unless it be held that whether or not any words to indicate attestation are there it must appear to the Court that the person has in fact signed in the capacity of a witness. It seems to me that all doubts in this matter are set at rest by the decision of the Privy Council in Shamu Patter v. Abdul Kadir Ravuthan. As I have already indicated above, Newbould and Panton, JJ. in Jagannath Khan v. Bajrang Das Agarwala did not consider this Privy Council decision of any assistance to them. With great respect to their Lordships I am unable to take the same view. The point directly in issue in that case undoubtedly was whether the Transfer of Property Act, sec. 59, providing that a mortgage can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses, is complied with when the witness not having been present at the execution of the instrument by the mortgagor attested subsequently thereto on his acknowledgment of his signature. It is hardly necessary to state that this case came up before their Lordships before the recent amendment of 1926 by which attestation of a mortgage deed may take place on acknowledgment by the executor. Their Lordships of the Privy Council held in that case that the requirements of sec. 59 were not complied with when the witness without having been present at the execution attested subsequently on his acknowledgment. In course, however, of the discussion of the law, their Lordships made an observation which seems to me of very great importance for our present purpose. It is at page 226 of the report: “Sec. 68 of the Indian Evidence Act (I of 1872) which declares that “If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution,” appears to their Lordships to indicate that the Indian Legislature used the word “attested” in the sense in which it has been construed through a series of decisions in the English Courts.” In an earlier part of the decision, namely, at page 225, their Lordships quoted on the one hand the opinion of Dr. Lushington in Bryan v. White(17) that “attest means that persons shall be present and see what passes, and shall, when required, bear witness to the facts “and the observation of the Lord Chancellor in Burdett v. Spilsbury: “The party who sees the Will executed is in fact a witness to it: if he subscribes as a witness he is then attesting witness.”

12. It is true that in Bryan v. White, Dr. Lushington did not, in his definition of “attest,” include the requirement that the signature shall be as a witness. There can, however, be no doubt that under the English Law as it stood at the time of the decision of their Lordships in Shamu Patter's case, it was already settled that to be an attesting witness it was necessary also that a person should sign as a witness. This is clear from the speeches of Lord Campbell and the Lord Chancellor in Burdett v. Spilsbury. Lord Campbell in the later part of his speech said: “What is the meaning of an attesting witness to a deed? Why it is a wit- ness who has seen the deed executed, and who signs it as a witness. He is a good attesting witness, although there should not be upon the deed itself, a memorandum saying that it is signed, sealed and delivered in his presence. The Lord Chancellor said: “The party who sees the will executed is in fact a witness to it; if he subscribes as a witness, he is then an attesting witness.”

13. In my judgment, we have the high authority of the Privy Council for holding that the Indian Legislature used the word “attested” in sec. 59 of the Transfer of Property Act in the sense in which it has been construed in the English Courts. It has not been suggested to us that the word should not be taken in the same sense in sec. 63 of the Indian Succession Act. I can see no justification for a view that any distinction should be made between the meaning of the word as used in sec. 59 of the Transfer of Property Act and sec. 63 of the Indian Succession Act.

14. The position thus is that we have to take the word “attestation” in the same meaning as settled by the English decisions; and there can be no doubt after the House of Lords case of Burdett v. Spilsbury that the law as settled in England is that to be an attesting witness a person must also sign as a witness though it is not necessary that there should be any words to that effect in the deed itself.

15. In a later decision of the Privy Council, Sarkar Barnard & Co. v. Alak Manjary Kuari(18) this question whether it is necessary for an attesting witness to sign as a witness did come up for consideration. It was held by the High Court of Patna that a person not having subscribed as a witness was not an attesting witness and it was held on that ground that the mortgage bond had not been attested by at least two witnesses and that it could not be enforced against the mortgagors. Lord Shaw delivering the judgment of the Privy Council disposed of this appeal in these words: “This appeal has been presented ex parte. Everything in its favour that could be said has been said. Their Lordships are of opinion that it is a hopeless appeal and will humbly advise His Majesty to dismiss it accordingly.” In my view, this case should also be taken to be authority for the proposition that a person who does not subscribe as a witness is not an attesting witness within the meaning of the law.

16. My conclusion, therefore, is that Sarat Chandra Chattopadhyay can be held to be an attesting witness of the Will only if apart from having seen the document executed and having put his signature on the document in the presence of the testator, he also signed it as a witness. The learned District Judge does not appear to have gone into this question whether the signature was affixed by Sarat Chandra Chattopadhaya as a witness. In coming to a conclusion on this very important question of fact, namely, whether Sarat Chandra Chattopadhyay, the scribe of the document, affixed his signature as a witness or not, we have to consider the position of his signature on the document itself and the evidence of Sarat Chandra Chattopadhyay himself and the evidence of the only other person who claims to have been present at the time of the execution and at the time when Sarat Chandra Chattopadhyay put his signature, namely, Surendra Nath Saha. Surendra Nath Saha has said this: “The Will was then handed over to Chandra Babu who again read the Will. Then Chandra Babu signed the Will in my presence and Sarat Babu. Then myself and Sarat Babu signed our names as witnesses in the Will in the presence of the testator.” If this was all, I should have been prepar- ed to hold that Sarat Babu had affixed his signature as a witness in the Will. Sarat Chandra Chattopadhyay has, however, been himself examined in this case and in reply to an interrogatory: “In what capacities did you sign the Will?”- made the statement “I put my signature to the Will as the scribe.” I find it difficult to agree with the learned Advocate for the Respondent that Surendra Nath Saha's statement as to the capacity in which Sarat Chandra Chattopadhyay signed it should be accepted in preference to Sarat's own statement on the point. It is important to notice in this connection that Sarat Chandra Chattopadhyay has not himself made any statement as regards the time when he affixed his signature. There is nothing in his deposition to show that he affixed his signature after the testator had put his signature.

17. Stress was laid by the learned Advocate for the Respondent on the fact that the line in which the word “isadi” appears is above the line in which the signature of Sarat Chandra has been put.

18. He wants us to conclude that Sarat Chandra having put his signature in this line below the position of the word “isadi” did at the time intend to sign as a witness. I am unable to draw any conclusion from the fact that the word “isadi” has been written by Sarat Chandra. It seems to be usual that the word “isadi” should be written by the scribe in the document whether or not he is himself a witness. I would myself have expected to see the word “isadi” written by the scribe himself even where he does not happen to be present at the time of the execution. Some inference favourable to the Respondent's case might have been drawn if the signature of Sarat Chandra had appeared immediately below the word “isadi” or in the midst of a group of signatures of attesting witnesses or if it had appeared immediately above the signature of Surendra Nath Saha, admittedly an attesting witness or below his. The position of the signature of Sarat Chandra Chattopadhyay as I see it in this document in a line below the line in which the word “isadi” occurs but a good deal to the left does not, in my judgment, justify the conclusion that Sarat Chandra Chattopadhyay has signed as a witness. He himself has prefaced his signature by the word read by him at the time of his deposition as Whether it is or there is no doubt that he is thereby describing himself as the scribe of the document. I entirely agree with the learned Advocate for the Respondent that the mere description of himself as scribe cannot stand in the way of a finding that he signed as a witness, for, as was pointed out by Rankin, C.J, in Abinash Bidyanidhi's case and by other learned Judges in some other cases that the use of the word “scribe” before or after the signature may be given by way of additional information. I do not, therefore, draw any conclusion from the mere fact that Sarat Chandra Chattopadhyay prefaced his signature by the word The most important fact in the decision of this matter seems to me to be this that Sarat Chandra himself in reply to the definite question, “In what capacities did you sign the will” has made the clear and unambiguous statement that he signed it as the scribe. There is nothing in his evidence to indicate that he had been won over by the other side or that for reasons of his own he was not prepared to support the propounder of the Will. On the contrary, the statement he has made on the question of testamentary capacity of the testator, makes it clear that he was willing and ready to support the propounder of the Will. When inspite of this we find him making the clear statement in reply to a clear question that he signed the Will as a scribe, I am unable to think of any reason why his evidence on this point should not be taken as the full truth.

19. My conclusion on a consideration of the evidence of the witnesses and the position of the signature in the document in reference to the position of the word “isadi” and the signature of the other witness is that Sarat Chandra Chattopadhyay signed the document as a scribe and not as a witness.

20. The inevitable conclusion, therefore, is that this will was attested only by one witness Surendra Nath Saha and was not attested by two witnesses as required by law.

21. I would, therefore, allow the appeal and set aside the order of the learned District Judge and order that the application for letters of administration be rejected. The Appellant will get his costs throughout. The hearing-fee in this Court is assessed at five gold mohurs.

Guha, J.:— I agree.

N.D.R