1. This appeal arises out of an application for letters of administration with a copy of the Will annexed to the property of one Khirodebasini Debi
who died on the 7th February 1911, after having it is said, executed her last Will on the 6th of February the day previous. The learned Judge has
refused to grant letters of administration holding that there was no independent evidence as to the execution of the Will and that the attestation was
not legally proved. The learned Judge found and we think rightly found upon the evidence that the lady wanted to make Will or in any case some
disposition of her property in favour of the beneficiary, in this case, that is, Bhupendra Nath Roy Chowdhury the son of Muktanath Roy
Choudhury. Of this there can be no doubt. She was living in the same house with Muktanath and his children and this boy Bhupendra Nath is said
to have been very much loved by her. So far as the motive of the testatrix is concerned it is in favour of the Will having been executed. As regards
independent evidence objection has been taken that nearer relations were not made to attest the Will nor her spiritual guide. Her nearer relations
were, however, not residing at Cossipur where she resided and died. It is true that her spiritual guide resided at Cossipur. But as she did not want
to make any disposition in favour of her spiritual guide it would not look proper to have the spiritual guide attesting a document in which he was
disappointed of any expectation that he might have had upon the property of the dying widow. In any case the people who were about her and
who were principally to be benefited by the execution of the Will would not take the initiative in calling the people who might induce her at her last
moment to make deduction from what they expected to get, so that these other people might be benefited. Four witnesses are said to have attested
the Will and all of them have been examined. With regard to Mukta who was the writer he cannot be said in this case to have attested the Will as a
witness because there is no evidence that he signed the Will after the testatrix. As regards Kripa Nath the learned Judge is not inclined to believe
that he was present at the time of the execution of the Will and we are not prepared to differ from him. As regards other witnesses, however'',
there does not seem to be any particular reason for disbelieving them specially seeing that (he Will is in accordance with the wishes of the testatrix
expressed during her lifetime before reliable witnesses. Now, as regards these witnesses -- Shibendra and Keshab, Shibendra guided her hand in
fixing her mark and also put down the name of the testatrix under the mark by his own pen. If the writing of the name of the testatrix by her
direction and by the pen of Shibendra be considered as the execution of the Will then Shibendra cannot be considered as an attesting witness. It is
contended, however, that apart from that signature there is the mark and under the law execution was complete as soon as the testatrix put down
the mark upon the document intending the document to be her Will. Then the question is whether the mark put upon the document has been
proved in accordance with the provisions of sec. 50 of the, Indian Succession Act which has been made applicable to the Wills of the Hindus.
Shibendra says ""I think her finger mark was taken by catching hold of her finger."" In cross-examination he says ""I got her make the finger mark by
taking hold of her finger."" It is contended that this cannot be taken as execution of the document by the testatrix, because the motive power was
that of Shibendra and that there is no evidence that this was done in accordance with the direction of the testatrix. Shibendra, however, says that
Khirodebasini made the Will, that he read over the Will to Khirodebasini, that when he asked her whether he would sign the Will for her she
nodded her assent and that she had sense when the Will was read over to her. If her finger was guided to make the mark in this state of things and
she did not snatch away her finger or oppose the finger mark being made on the document it cannot be said that the finger mark was made against
her will. On the other hand considering the occasion on which the finger mark was put, the surroundings and the evidence that the ''Will was
executed at her desire the better opinion seems to be that the finger mark was placed upon the document by her desire. We may in this connection
refer to the case of Wilson v. Beddard 12 Simon''s Rep. 28 (1841) where the Vice-Chancellor is reported to have said that ""in order to constitute
a direction it is not necessary that any thing should be said. If a testator in making his mark is assisted by some other person and acquiesce and
adopts it, it is just the same as if he had made it without any assistance."" Then there is the evidence of Keshab Chandra Majumdar. This witness
was somewhat confused in his cross-examination. But taking the purport of his whole deposition it seems that his evidence that the testatrix told
him that she had made the Will and directed him to sign as a witness may be taken as correct. If that be so then we have the direct evidence of
Shibendra that the mark was put upon the document by the testatrix and the evidence of Keshab that the testatrix acknowledged the Will before
him.
2. The next question is whether this would he a sufficient attestation in accordance with the provisions of the 3rd clause of sec. 50 of the Indian
Succession Act which provides that "" The Will shall be attested by two or more witnesses each of whom must have seen the testator sign or affix
his mark to the Will or have seen some other person sign the Will in the presence and by the direction of the testator or have received from the
testator a personal acknowledgment of his signature or mark or of the signature of such other person."" Now, it is contended by the learned vakil
for the Respondent that the attestation will not be in accordance with the law unless each of the witnesses proves the same state of things, that is
unless each of the two witnesses speaks either to the signature or to the fixing of the mark or to the signature by another person or to the personal
acknowledgment. This interpretation of the section may be plausible, but we do not think that it is a reasonable interpretation of the section. There
may be cases in which one witness saw the testator sign the document and the Will was acknowledged before another. Such cases would go out
of the category of properly executed Wills if this interpretation of the section be accepted; and the language of the section is not incapable of an
interpretation in accordance with which it would be quite sufficient if each of the two or more witnesses conforms to one of the alternatives. In this
view we think that the evidence of Shibendra as regards the putting of the mark taken with the evidence of Keshab that the Will was
acknowledged before him is sufficient to meet the requirements of the section as regards the attestation. The Indian law does hot require that the
witnesses must be present at the same time as the English law does. The learned Judge is not therefore right in objecting to the evidence on this
ground. On the whole, we think that the Will ought to be supported and letters of administration granted in due course. The appeal is therefore
allowed with costs two gold mohurs.