Macleod, C.J:— This is an application for probate of the alleged will of one Pedi Pasool Misquita who died on the 6th ??? August 1910 leaving a widow and a adopted son Francis. The will left ??? property, apart from legacies, to Franc with a direction to maintain the ??? and also a direction that if she left ??? living with Francis she should get Rs. 20. It is admitted that the landed proper belonging to the deceased was transferred to Francis. The widow continued to ??? with him for some years, while he manage the property of the deceased. The disputes arose amongst the family, a evidently suggestions were made that ??? will of Pasool should be disputed. As ??? learned Judge points out, Natal the ??? of the deceased and his nieces thought ??? they were entitled to a share of the ??? party; one of them had even ??? to sell her alleged share of the ??? to a third party who had, on ??? strength of the sale, brought a ??? against Francis. The result was, ??? although there was on necessity ??? Francis to apply for probate while the ??? was living in amity, when the suit, ??? brought against him he had to prove ??? will. Accordingly he filed these proceed for probate, when they were opposed ??? widow and another relation of ??? Pasool. The learned Judge found that will bad actually been executed by ??? testator himself by making marks on ??? will, and directed probate to issue.
2. That decision has been appealed ??? and we have to consider whether document before us has been ??? according to the rules laid down ??? section 50 of the Indian Succession ??? We cannot agree with the District Judge that the marks on the will which ??? to be the marks of the testator ??? actually made by him. The ??? appear altogether in seven places, ??? although the Vicar who wrote the ??? the deceased at the end of the ??? various other places said that the ??? made all the marks, he had to ??? cross-examination that be made two of the ??? But if the Vicar had written the words “mark of Padru Paseol Misquita” ??? a blank space for the mark, and ??? testator had made the mark, the ??? of the marks in the will could certainly have been different. They ??? were made by the person ??? wrote the words. The question ??? therefore, whether we can hold ??? as the will has not been signed ??? marked by the testator, it has been ??? by some other person in his ??? and by his direction. I should ??? inclined to hold, provided the person who signs in the presence and by the direction of the testator at such a place that it will appear that it was intended hereby to give effect to the writing as a ??? that the provisions of the Section are ??? with and it does not matter ??? there are other words written by ??? person so long as those words do not ??? the effect of the signature, so as to ??? it appear that the name of the person signing is not to be taken as a signature ??? to give effect to the writing as a ??? Here the Vicar has written his name ??? purports to explain the meaning of the ??? which he said was made by the ??? Setting asida that statement as ??? being entirely correct, and admitting ??? the Vicar himself made the mark, ??? there can be no doubt that what he ??? doing was intended to take effect as execution of the will.
3. ??? the question arises whether he was ??? in the presence and under the ??? of the testator. The general effect ??? evidence makes it perfectly clear that ??? document was prepared on the 3rd, ??? that various persons assembled at the ??? of the testator, including the Vicar, Khot's Karkun and the Sub-Registrar, ??? the writing at the end of this document was made, as well as the writings at ??? other places in it, and also the ??? at the end of the admission of ??? for the purposes of registration, ??? it be suggested that all that took ??? without the knowledge and without ??? superintendence of the testator? Of ??? if he was unconscious, and all that ??? while he was unconscious, then ??? it could not be said that this ??? was properly executed. It is not ??? that he was anything more than ??? The Vicar has said:
“I had affixed his signatures to the corrections and to the will and to the endorsement before the Sub-Registrar. I asked him before the Bub-Registrar whether I should affix his signatures, and be said yes. The marks of the cross were made by him. Bastiav Gobriel and Bastiav Sinav were present at the time and had attested at the instance of the deceased. The Sab-Registrar then took down deceased's admission of the will. I affixed his signatures to it at his request, and the Sab-Registrar took his thumb-impression. He was in his senses at the time. He was in nil possession of his senses till the next evening when I gave him last sacrament or extreme unction.”
4. Unfortunately the Sub-Registrar has died since August 1910. Therefore his evidence is not available. But there is the thumb-mark on the will to bear out the statements of the Vicar, and it seems to me that we are entitled to hold that the will was properly executed if we come to the conclusion that the testator was conscious at that time, and assented to what was being done in his name. I think, therefore, the decree of the Court below must be confirmed, although not for the same reasons, and the appeal will be dismissed.
5. As we have decided the case on a different ground from that on which the learned Judge decided it, there will be no order as to costs.
Fawcett, J.:— I agree. I would add that, even supposing the signature of the Vicar in regard to the mark of the testator cannot be considered to be a signature by some other person in the presence of the testator and by his direction within the meaning of Section 50 of the Indian Succession Act, yet the thumb-mark of the deceased, which there is evidence to show was made from the deceased's thumb in the presence of the Sub-Registrar and the attesting witness Bastiav Gabriel, who identified the deceased, would constitute a proper execution. The thumb-mark would be a mark affixed by the testator to the will with the intention of signifying that it was his will, and that thumb-mark was made in the presence, at any rate, of one of the attesting witnesses Bastiav Gabriel, who admits that he signed the endorsement of the deceased's identity before the Sub-Registrar and who had, therefore, presumably seen: the testator sign the will in this manner. Then also I think it is legitimate to treat the Sub-Registrar himself, who made the endorsement about the deceased's admitting that the will was his, as an attesting witness to the will, for he had not only seen she testator affix his thumb-mark to it, but had also received from the testator a personal acknowledgment that the will was his. The endorsement on the will made by the Sub-Registrar and his certificate of registration are admissible for the purposes of proving that the document has been duly registered and that the facts mentioned in the endorsement have occurred as therein mentioned by virtue of the provisions of section 60 of the Indian Registration Act.
6. Decree confirmed.