Garth, C.J:— We think that in this case the Judge was quite right in holding that the attestation at the foot of the Will was insufficient, because it is proved that both the witnesses signed the names before the Will was signed by the testatrix. We ??? the learned Judges who decided the case of Bissona Dinda v. Doyaram Jana, 5 C.L.R, 565, and also with the Bombay case—Fernandez v. Alves, I.L.R, 3 Bom., 382, the was cited—that section 50 of Act X of 1865 clearly intends that the two witnesses shall sign their names after the testator ??? testatrix shall have signed his or hers.
But then there is the further point, which has been argued here, and to which the attention of the Judge does not appear ??? have been directed, namely, that when the testatrix admitted before the Registrar her execution of the Will, she was identified on that occasion by one of the same persons, who profess to have witnessed her signature to the Will.
Upon her admitting before the Registrar that the ??? to the Will was hers, the Registrar signed his name as attests her admission, and apparently the other witness did the same.
Now if these persons signed their names in the presence of the testatrix, as attesting her own admission that she had signed the Will, we think that would be sufficient as an attestation to satisfy the requirements of the 50th section.
We have decided, therefore, to remand the case, in order that the Judge, by recalling the witness, who has already been examined, Chandra Kishore, and also any other witnesses who were present, may satisfy himself upon this point, and determine the case accordingly.
We find that the view we now take was adopted by Mr. Justice Phear, in a case reported in I.L.R, 1 Cal 150—In the goods of Roymoney Dossee.
As the appellant did not raise this contention in the Court below, and as upon the materials now before us he would not be entitled to succeed, we think that the objector should have be costs in this Court.
Both parties will be at liberty to adduce fresh evidence ??? upon the question, which we direct to be tried.