JUDGMENT Sen, J. - This is an application by Chandrattan Gandhi for probate of the will of Goculchand Gandhi. The application is opposed by one Shankerlal, a minor, by his mother, Jamuna Bai. The case for the petitioner is that Goculchand Gandhi executed a will on the 4th May 1939, that the will was duly attested by one Raghubar Dayal Bhargava and Girvar Prasad Muktear and was explained to the deceased by one Madan Swarup. The testator died on the 3rd January 1940 leaving properties both within and without British India. The testator had two sons, Chandrattan, the petitioner, and one Sohanlal who predeceased the testator. Sohanlal married Jamuna Bai and by her had a son, Shankerlal, who is the caveator. The caveator objected to the grant of probate on three grounds, viz., (1) that the alleged signature of Goculchand Gandhi was a forgery; (2) in the alternative that the testator made the will while he was under the undue influence of Chandrattan; and (3) that the will was not duly attested. At the time of trial Mr. Sett appearing for the caveator stated that be would not oppose the will on the ground either of forgery or undue influence but that he would rest his case on the ground that the will was not duly attested. 2. The evidence in this case was taken on commission; two persons were examined, namely, one of the attesting witnesses Raghubar Doyal Bhargava and the person who is alleged to have explained the will to the deceased, namely, Madan Swarup. The other alleged attesting witness was not examined and there is no evidence to show that that person ever attested the will. Raghubar Doyal Bhargava and Madan Swarup have not said anywhere that the other alleged attesting witness attested the will. They have no knowledge of this. The petitioner was, therefore, in a difficulty and he now seeks to obtain probate on the ground that Madan Swarup is also an attesting witness. 3. Raghubar Doyal Bhargava says that the testator acknowledged execution of the will in his presence and upon such acknowledgment he signed as an attesting witness. In my opinion, there is no difficulty in holding that Raghubar Doyal Bhargava attested the will. The only question for determination is whether it can be said that Madan Swarup attested this will. 3. Raghubar Doyal Bhargava says that the testator acknowledged execution of the will in his presence and upon such acknowledgment he signed as an attesting witness. In my opinion, there is no difficulty in holding that Raghubar Doyal Bhargava attested the will. The only question for determination is whether it can be said that Madan Swarup attested this will. As I have stated before the propounder of the will, Chandrattan Ghandi in his application for probate did not treat Madan Swarup as an attesting witness. He mentioned the names of two other persons as attesting witnesses and stated that Madan Swamp explained the will. In his application for a commission Chandrattan Gandhi makes the matter still clearer. He states in paragraph 8 that it is necessary to examine three persons, (1) Babu Raghubar Doyal Bhargava, (2) Babu Girvar Prosad Muktear, (3) Mr. Madan Swarup. In paragraph 9 he states as follows: The will was explained to the deceased abovenamed by the said Mr. Madan Swarup and the same was attested by Babu Raghubar Doyal Bhargava and Babu Girvar Prosad Gandhi, as witness. The evidence of the above named persons is necessary. 4. From the examination- in-chief of Babu Madan Swarup it seems to me quite clear that he was not being examined to prove that he had attested the will. He was not even asked whether he signed the will in the presence of the testator. Leading questions were put to him and they indicate that he was being examined to prove that the will had been properly explained by him to the testator and that the testator had understood the contents of the will. Learned counsel, Mr. B. N. Ghosh, very frankly admitted that if the matter rested with the examination-in-chief he would find it extremely difficult to say that Madan Swarup was an attesting witness; he relies, however, upon certain statements made by this witness in his cross-examination to establish that Madan Swarup was an attesting witness. He refers me to Questions 107 to 110. They are as follows: Q. 107. Can you please state any definite reason, why you did not make a note in your explanation note on Ex P1. F that Goculchand Gandhi signed before me ? A. No, there is no such reason. Q. 108. Can you give any reasons for having written this explanation note Ex.P1. They are as follows: Q. 107. Can you please state any definite reason, why you did not make a note in your explanation note on Ex P1. F that Goculchand Gandhi signed before me ? A. No, there is no such reason. Q. 108. Can you give any reasons for having written this explanation note Ex.P1. F A. Only because, I read over and explained the document to the executant, who after accepting the document signed in my presence. Q. 109. Did you give this explanation note Ex. P1. F that if your evidence be required sometimes then on the strength of this note, you may refresh your memory and give evidence ? A. This thing never came in my mind. I simply did it, because it was a fact. Q. 110. Is it true, that because Goculchand Gandhi did not sign in your presence, so the words 'signed in my presence' were not written by you in the note Ex. P1. F? A. It is not true. Goculchand Gandhi first signed the document, then underneath his signatures, I gave my explanation note. 5. The important passage is to be found in the answer to Q.110. Mr. Ghosh would have me conclude from this answer that Madan Swarup signed the will in the presence of Goculchand Gandhi. In my opinion, it cannot be said that the evidence has established that Madan Swarup signed the will in the presence of Goculchand. The evidence, to my mind, has established that Goculchand signed the will in the presence of Madan Swarup. But it establishes nothing more than that. On this ground alone it must be held that it has not been proved that Madan Swarup is an attesting witness. That being so probate cannot be granted. 6. Mr. Sett on behalf of the caveator argued that even if it be held that Madan Swarup signed the will in the presence of the testator and after the testator had signed the will, Madan Swarup cannot be treated as an attesting witness because he put his signature on the will merely to show that he had explained it to the testator. He did not put his signature on the will with the intention of attesting the signature of the testator; in other words he did not have an animus attestandi. He did not put his signature on the will with the intention of attesting the signature of the testator; in other words he did not have an animus attestandi. His argument is that unless persons sign the will animo attestandi they cannot be held to be attesting witnesses. 7. Mr. Ghosh's contention on the other hand is this. If a person sees the testator sign the will and if he signs the will after seeing the testator sign and in the presence of the testator then such a person is an attesting witness even if he did not have an animus attestandi when he put his signature on the will. Next Mr. Ghosh contends that if it be held that Madan Swarup did put his signature on the will in the presence of the testator the circumstances conclusively prove that he put his signature animo attestandi. In view of the finding of fact at which I have already arrived it is perhaps unnecessary to decide the above mentioned points but as they have been argued at length I propose to give my decision on them. 8. The first matter to be decided is whether Madan Swarup put his signature on the will animo attestandi. The will is written on five pages and the testator signed on every page. The two witnesses Raghubar Doyal Bhargava and Girvar Prosad Muktear also signed on every page under the heading "witnesses." Madan Swarup does not sign any but the last page. His signature appears beneath a statement which is as follows: Explained by me to Goculchand Gandhi who is a person known to me (signed) Madan Swarup, B.Com. LL.B., Advocate, High Court, Bikaner. 9. It should be remembered that he does not sign under the column "witnesses." If a conclusion is to be drawn from the document itself, it seems to me that the only conclusion that can be drawn is that Madan Swarup put his signature on the will with the intention of showing that he explained it to the testator. He did not put his signature on the will with the intention of attesting the signature of Goculchand Gandhi. 10. The next point to decide is whether it would be legitimate to conclude from the oral testimony given that Madan Swarup put his signature on the will animo attestandi. He did not put his signature on the will with the intention of attesting the signature of Goculchand Gandhi. 10. The next point to decide is whether it would be legitimate to conclude from the oral testimony given that Madan Swarup put his signature on the will animo attestandi. Although questions were put in a grossly leading form to Madan Swarup during his examination-in-chief, I cannot say that petitioner has succeeded in showing that Madan Swarup signed the will animo attestandi. Learned counsel for the petitioner drew my attention to questions 13 and 14 of the examination-in-chief of Madan Swarup; they are as follows : "Q. 13. When yon made the note Ex. P1, F before your making it, were you satisfied that it was duly executed by the testator ? A. Yes. He also drew my attention to the answers to questions 87 and 88 which are as follows: Q. 87. Is there any entry in your explanation note that Goculchand Gandhi signed in your presence ? Please see the will Ex. P1 and reply. Objected to. A. No. Q. 88. Did yon not think it essential to make a note of it ? A. No. Lastly he relied on the answers to questions 107 to 110 which have already been reproduced. Now, to my mind the answers to these questions do not establish that when Madan Swarup put his signature on the will he put it with the intention of attesting to the signature of the testator. I have no hesitation in holding that the only intention he had when he put his signature on the will was to place on record that the will had been duly explained to the testator by him. Although in his answer he says that when he made his note on the will he was satisfied that it had been duly executed by the testator. I am not prepared to hold that the note and his signature were put there for the purpose of placing on record the fact that he had seen the testator sign the will. I hold, therefore, that Madan Swarup did not put his signature on the will animo attestandi. 11. The question remains whether he can be treated as an attesting witness in spite of the fact that he did not have an animus attestandi when he put his signature on the will. 12. I hold, therefore, that Madan Swarup did not put his signature on the will animo attestandi. 11. The question remains whether he can be treated as an attesting witness in spite of the fact that he did not have an animus attestandi when he put his signature on the will. 12. A large number of cases have been placed before me by counsel on both sides. So far as this Court is concerned there are some cases which support the view urged by Mr. Ghosh. There are also cases which take a different view. The English cases, in my opinion, all indicate that a person cannot be an attesting witness unless he puts his signature on the will animo attestandi. After going through all the cases placed before me, I have formed the opinion that even if a person sees the testator sign and signs the will after seeing the testator sign and in the presence of the testator he would not be an attesting witness unless he puts his signature on the will "animo attestandi." Section 63, sub-s. (c), Indian Succession Act, 1925, contains the law on this point. It is in these terms: Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or a mariner at sea, shall execute his will according to the following rules:- (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 or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary. It should be noticed that in this section the words "attest" and "sign" are used. If Mr. Ghosh's argument were sound, then it would not have been necessary to use these different words. The section would then have run as follows: "the will shall be signed by two or more witnesses each of whom has seen the testator sign, etc...... It should be noticed that in this section the words "attest" and "sign" are used. If Mr. Ghosh's argument were sound, then it would not have been necessary to use these different words. The section would then have run as follows: "the will shall be signed by two or more witnesses each of whom has seen the testator sign, etc...... The Legislature makes a distinction between mere signing and attesting. Attesting is more than merely signing on the will. Attesting means signing a document for a particular purpose, the purpose being to testify to the signature of the executant. When a person puts his signature on a document as an attesting witness he virtually says: "I put my signature on this document for the purpose of testifying that the executant has signed the document in my presence or has acknowledged that he has done so." Unless there is this intention in the mind of the person who puts his signature on the document, the placing of his signature would not amount to an attestation. The section does not say that it would be sufficient if two persons who saw the testator sign the will put their signature on it in the presence of the testator. It says that the will shall be attested by two persons who shall sign the will in the presence of the testator either after seeing the testator sign it or after receiving from the testator an acknowledgment of such signature. Apart from the case-law on the subject it seems to me quite clear from the section itself that attestation implies something more than the mere putting down of a signature on a will in the presence of the testator by a person who has seen the testator sign. 13. I shall now deal with the cases which have been cited. In 5 C. W. N. 454 Raj Narain Ghosh v. Abdur Rahim ('01) 5 C.W.N. 454 Harington J. held 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. He supports his view by making a reference to an old case decided in 1850 in London but he has not given the name of the case or the name of the report. He supports his view by making a reference to an old case decided in 1850 in London but he has not given the name of the case or the name of the report. What he says is this: "It is there stated that attestation means that the person shall be present and see what passes." With very great respect to the learned Judge I am unable to accept this definition of attestation as being correct. Mr. Ghosh with his usual industry and fairness has taken me through a large number of English cases although they were against him. The only case in which a definition of attestation resembles the definition given by Mr. Justice Harington is the case in (1850) 2 Rob. Eccl. 315.2 Dr. Lushington in his judgment says this: It was asked, what is the meaning of 'shall attest?' I feel under no difficulty in answering that question. 'Attest' means the person shall be present and see what passes, and shall, when required, bear witness to the facts. The point for decision there was this-two witnesses were alleged to have attested the will by putting their names thereon without any memorandum stating that they were attesting witnesses. It was argued that in the absence of such a memorandum they could not be held to be attesting witnesses. In reply it was pointed out that under the statute no form of attestation was necessary. The statute itself in S. 10 stated that no particular form of attestation was necessary. Dr. Lushington relying upon the statute made the observations which I have reproduced above. The point whether a person who puts his signature on a document alio intuitu can be said to be an attesting witness was not the matter for consideration. There the persons did put their signature on the document ammo attestandi but they did not state that intention in the document. Dr. Lushington held that no statement was necessary so long as the signature was put there in token of the readiness of the witness to depose to the facts seen; that to my mind is the meaning of his observations. 14. A person who is present and sees what passes is a witness. Attestation means something done by such a witness to show that he has seen what has passed. If Mr. Justice Harington is relying upon the observation of Dr. 14. A person who is present and sees what passes is a witness. Attestation means something done by such a witness to show that he has seen what has passed. If Mr. Justice Harington is relying upon the observation of Dr. Lushington it seems that he omitted to notice the latter part of the observation, namely, that the person who was present and who had seen what had passed "shall when required bear witness to the facts." Until he "bears witness" to the facts he cannot be said to have attested anything. Under the law this "bearing witness" must take place before the testator. Bearing witness after the testator's death will not suffice. If, therefore, a person puts his signature on a document with the intention of showing by his signature that he saw the deed being executed then he is said to attest the deed. If he signs a document not with the intention of thereby bearing witness to the due execution of the deed but with some other intention then it cannot be said that his signature amounts to an attestation. Bearing witness at some later date will not convert that which was not an attestation into an attestation. 15. The next case relied on by Mr. Ghosh is the case in 7 C. W. N. 160 Dinamoyee Debi v. Bon Behari Kapur ('03) 7 C. W. N. 160. There a person was treated as an attesting witness who wrote the name of the executant at her request after the executant had put her finger mark upon the document. It was held that such a person was an attesting witness and the case in 5 C. W. N. 454 Raj Narain Ghosh v. Abdur Rahim ('01) 5 C.W.N. 454 was referred to. The facts of this case were materially different from those of the case in 5 C. W. N. 454 Raj Narain Ghosh v. Abdur Rahim ('01) 5 C.W.N. 454. Here the witness signed his name in token of the fact that he had written the name of the executant at her request after she had put her finger mark upon the document. Here the witness signed his name in token of the fact that he had written the name of the executant at her request after she had put her finger mark upon the document. The witness put his signature upon the document clearly with the intention of testifying to the fact that the document had been executed by the executant; in other words the witness had an animus attestandi at the time he put his signature on the document. This case in my opinion does not support the proposition urged by Mr. Ghosh nor does it support the view expressed by Mr. Justice Harington which I have dealt with above. 16. The next case relied upon by Mr. Ghosh is the case in 48 Cal. 61 Jagannath Khan v. Bajrang Das ('21) 8 A. I. R. 1921 Cal. 208 : 48 Cal. 61 : 62 I.C. 97. In this case it was held that a person who is present and witnesses the execution of the deed and whose name appears on the document though he is therein described merely as a writer of the deed is a competent witness to prove the deed. No reasons are given for holding that view except that the same view has been taken in certain other cases. With great respect to the learned Judges who decided this case I am of the opinion that this view is not correct. 17. These cases were considered by Chief Justice Rankin, as he then was, in 32 C. W. N. 1228 Abinash Chandra v. Dasarath Malo ('29) 16 A. I. R. 1929 Cal 123 : 56 Cal. 598 : 114 I.C. 84 : 32 C.W.N. 1228. His Lordship dealing with the case in 5 C. W. N. 454 Raj Narain Ghosh v. Abdur Rahim ('01) 5 C.W.N. 454 said that it appeared to him that the exposition of the law in that case was somewhat too wide. As regards the case in 7 C. W. N. 160 Dinamoyee Debi v. Bon Behari Kapur ('03) 7 C. W. N. 160, his Lordship said that the decision was quite right because the man had put his name down on the document by way of showing that the lady had executed it in his presence. As regards the case in 48 Cal. 61 Jagannath Khan v. Bajrang Das ('21) 8 A. I. R. 1921 Cal. 208 : 48 Cal. As regards the case in 48 Cal. 61 Jagannath Khan v. Bajrang Das ('21) 8 A. I. R. 1921 Cal. 208 : 48 Cal. 61 : 62 I.C. 97 his Lordship merely states what that case decided but does not definitely say anything more. The judgment, however, clearly shows that he took a different view. As I read the decision of the learned Chief Justice it is this: A man cannot be held to be an attesting witness merely because he has seen the execution of the instrument and has put his name on the document. If he puts his name on the document alio intuitu then he is not an attesting witness. If he puts his name on the document by way of saying at the time that he has seen the execution of the document then he is an attesting witness. This is what he says at page 1231: 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. Earlier on the same page he says this: The present case is where under the separate heading 'scribe' the man has put his name. The question is whether it is right to hold as a matter of law that, even although on the construction of the document the name is put alio intuitu, the fact that the name is on the document at all makes the man an attesting witness. In my judgment, any such proposition is erroneous...... In all these cases, it seems to me 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. 18. I very respectfully agree with what has been said by Chief Justice Rankin. 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. 18. I very respectfully agree with what has been said by Chief Justice Rankin. In my opinion, if it is shown that a person put his signature on a document not with the intention of attesting or witnessing the signature of the executant but alio intuitu then such person cannot be deemed to be an attesting witness although he may have seen the executant sign the deed and although he may have signed in the presence of the executant. 19. Mr. Ghosh next drew my attention to the case in 38 C. W. N. 759 Sm. Neelima Basa v. Joharlal Sarkar ('34) 21 A. I. R. 1934 Cal. 772 : 61 Cal. 525 : 151 I. C. 1063 : 38 C. W. N. 753. Mr. Justice Roy, as he then was, took the view that a Registrar who signed a document after execution had been acknowledged by the executant could be treated as an attesting witness even though the signature of the Registrar might have been made alio intuitu to satisfy the requirements of the Registration Act. With very great respect to the learned Judge, I am unable to follow his reasoning. The Registrar when he puts his signature on a document after it is acknowledged by the executant puts his signature there for the purpose of showing that the execution has been acknowledged by the executant. He puts his signature for the purpose of testifying to the execution of the document. The question of putting his signature alio intuitu cannot arise in such a case because the intention of the Registrar when he puts his signature on the document is that of an attesting witness. The fact that he is required to put his signature on the document to satisfy the purposes of the Registration Act makes no difference, inasmuch as the Registration Act requires him to put his signature there for the very same purpose of testifying to the signature of the executant. 20. Mr. Ghosh next relied on A. I. R. 1930 Cal. 750 Haripada Maity v. Annada Prasad ('30) 17 A. I. R. 1930 Cal. 750 : 129 I. C. 97. There it was held that a scribe could be treated as an attesting witness. 20. Mr. Ghosh next relied on A. I. R. 1930 Cal. 750 Haripada Maity v. Annada Prasad ('30) 17 A. I. R. 1930 Cal. 750 : 129 I. C. 97. There it was held that a scribe could be treated as an attesting witness. The facts of the case show that the scribe was functioning not only as a writer of the document but that he in fact put his signature to it in order to bear testimony to the fact that it had been executed by the executant. This is the clear finding at page 752. This case, therefore, does not support the view that without an animus attestandi a person can be treated as an attesting witness. 21. Mr. Ghosh also relied on 41 Mad 535 Paramasive Udayan v. Krishna Padayachi ('18) 5 A. I. R. 1918 Mad. 491 : 41 Mad. 535 : 43 I. C. 983. All I need say about this case is that it does not clearly lay down the proposition which Mr. Ghosh would have me accept. Some part of the judgment may be taken to support his view. But in one part of the judgment at page 587 the learned Judge says this : It will be a question in each case, whether a scribe was intended to witness the execution of a document. That is a matter for the trial Court." 22. This passage indicates that his Lordship took the view that it was necessary for the scribe to have the intention of witnessing the execution of the document in order that he might be treated as an attesting witness. My attention was also drawn to a decision of the Full Bench of the Madras High Court in 52 Mad. 123 Veerappa Chettier v. Subramania Ayyer ('29) 16 A. I. R. 1929 Mad. 1 : 52 Mad. 123 : 116 I. C. 367 (F.B.). The judgment is a very short one, but it does not, in my opinion, support the argument of Mr. Ghosh. It deals with the question whether the signatures of the registering officer and of the identifying witnesses affixed to the registration endorsement are a sufficient attestation within the meaning of the Transfer of Property Act. The judgment is a very short one, but it does not, in my opinion, support the argument of Mr. Ghosh. It deals with the question whether the signatures of the registering officer and of the identifying witnesses affixed to the registration endorsement are a sufficient attestation within the meaning of the Transfer of Property Act. The Full Bench held that the registering Officer and the identifying witnesses had exactly the same duty imposed upon them by the Registration Act as would have rested upon them as attesting witnesses under the Transfer of Property Act, and, therefore, they could be treated as attesting witnesses. These are all the cases relied upon by Mr. Ghosh. I shall now deal with the cases relied upon by Mr. Sett. He placed reliance on the decision of Chief Justice Rankin, in 32 C. W. N. 1228 Abinash Chandra v. Dasarath Malo ('29) 16 A. I. R. 1929 Cal 123 : 56 Cal. 598 : 114 I.C. 84 : 32 C.W.N. 1228 with which I have already dealt. He also relies upon certain observations made by the Judicial Committee in 16 C. W. N. 1009 Shamu Patter v. Abdul Kadir ('12) 35 Mad. 607 : 39 I.A. 218 : 16 I.C. 250 : 16 C.W.N. 1009 (P.C.). The question for decision there was whether it was necessary for the attesting witness to be present at the execution of the deed or whether the acknowledgment of execution by the executant to the attesting witness was enough. The decision was passed on the state of law before the amendment of the Transfer of Property Act in 1926 when it was enacted that an acknowledgment of execution before an attesting witness was sufficient. In the course of their judgments, their Lordships dealt with the meaning of the word "attestation" and they referred to the definition given by Dr. Lushington in (1850) 2 Rob. Eccl. 315 Bryan v. White (1850) 2 Rob. Eccl. 315 : 163 E.R. 1330. They also relied upon the observations of Lord Campbell C. J. in (1855) 4 El. & Bl. 450 Roberts v. Phillips (1855) 4 El. & Bl. 450 : 24 L. J. Q. B. 171 : 24 L.T. (O. S.) 337. They say this : In 1855 Lord Campbell, Chief Justice, in (1855) 4 El. & Bl. 450 Roberts v. Phillips (1855) 4 El. & Bl. & Bl. 450 Roberts v. Phillips (1855) 4 El. & Bl. 450 : 24 L. J. Q. B. 171 : 24 L.T. (O. S.) 337. They say this : In 1855 Lord Campbell, Chief Justice, in (1855) 4 El. & Bl. 450 Roberts v. Phillips (1855) 4 El. & Bl. 450 : 24 L. J. Q. B. 171 : 24 L.T. (O. S.) 337, enunciated the same rule as regards the word 'attested' that the witnesses should be present as witnesses and see it signed by the testator. Stress is laid on the words "as witnesses." Again they referred to the observations of the Lord Chancellor in (1842) 10 Cl. & F. 340 Rurdett v. Spilsbury (1842) 10 Cl. & F. 340 at p. 417. Lord Campbell summed up the conclusion regarding what amounts to attestation in these words: 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. These passages in the judgment of the Judicial Committee indicate that mere presence is not sufficient and that it is necessary that the person should be present "as a witness" and subscribe his name on the document as a witness to the execution. My attention has also been drawn to the case reported in 35 ALL. 254 Badriprasad v. Abdul Karim ('13) 35 All. 254 : 19 I. C. 451 where it was held that the scribe of a mortgage-deed cannot be counted as an attesting witness merely because he has signed the deed; even though the deed may in fact have been executed in his presence. Their Lordships go on further to say that to be an attesting witness within the meaning of S. 68, Evidence Act, 1872, the witness must have seen the document executed and have signed the deed as an attesting witness. 23. Mr. Sett next drew my attention to the passage at p. 511 of Phipson on Evidence (Edn. 8), where it is stated that the attesting witness must intend to attest, he must have an animus attestandi. Next he drew my attention to a passage at p. 654 of vol. 34, Halsbury's Laws of England, 2nd Edn., at paragraph 82. 23. Mr. Sett next drew my attention to the passage at p. 511 of Phipson on Evidence (Edn. 8), where it is stated that the attesting witness must intend to attest, he must have an animus attestandi. Next he drew my attention to a passage at p. 654 of vol. 34, Halsbury's Laws of England, 2nd Edn., at paragraph 82. This is what the learned author says: The Court must be satisfied that the names of the witnesses were subscribed on the will for the purpose of attesting the testator's signature; where the Court is satisfied that a signature has been added without any intention to attest the execution it excludes such signatures from the probate. He also referred to the case in (1876) L. R. 1 P. D. 269 In the goods of Wilson (1876) L. R. 1 P. D. 269 where it was held that a testamentary document is not entitled to a probate unless the Court is satisfied that the names of the alleged witnesses were subscribed on it for the purpose of attesting the testator's signature. 24. In that case the Court found that the names of three persons were subscribed on the will under a memorandum which was not testamentary and it came to the conclusion from the position of the names and the circumstances of the case that they were not placed there for the purpose of attesting the will. The Court accordingly held that the execution of the will was invalid. It is unnecessary to multiply cases, but it is perfectly clear from all these decisions that the law in England, at any rate, is that the mere subscribing of a signature by a person who actually saw the execution of a will or a deed does not amount to attestation even though such person signed in the presence of the testator. For the signature to amount to attestation it must be shown that the person put his signature on the will for the purpose of attesting the testator's signature, in other words he must have signed the will animo attestandi. I am conscious of the rule that decisions under one statute should not be taken as authorities in interpreting another statute. For the signature to amount to attestation it must be shown that the person put his signature on the will for the purpose of attesting the testator's signature, in other words he must have signed the will animo attestandi. I am conscious of the rule that decisions under one statute should not be taken as authorities in interpreting another statute. But a comparison of the English Statute with the Indian Statute shows that there is no essential difference in this respect regarding what constitutes attestation and there is no reason why English decisions should not be relied upon for coming to a conclusion as to what is meant by attestation under the Indian law. Mr. Sett drew my attention to another case which, in my opinion, clearly establishes the point urged by him, namely, that there can be no attestation without an animus attestandi. The case is (1869) 8 Eq. 300 In the goods of Andrew Murphy (1869) 8 Eq. 300. In that case, at the foot of the will signed by the testator and attested by two witnesses, there appears subscribed beneath the signature of the testator the signature of a person who was the principal legatee and sole executrix. Under the law an attesting witness forfeits, his right as legatee. An application was made by the person who had signed on the will for the exclusion of her name from the probate of the will on the ground that she did not put her signature on the will with the intention of attesting the will. The Court held that as this person had not put her signature on the will for the purpose of attesting the due execution of the will she was not an attesting witness and, therefore, she had not forfeited her rights as a legatee. 25. The law in this country is the same. Section 67, Succession Act, says that a bequest or appointment to any person attesting a will shall be void. Now if a legatee were to put his signature on a will in the presence of the testator and after seeing the testator sign not for the purpose of attesting it but for some other purpose, if Mr. Ghosh's contention were to be given effect to, whatever may have been the intention of the legatee he would be an attesting witness and, therefore, debarred from taking his legacy. Ghosh's contention were to be given effect to, whatever may have been the intention of the legatee he would be an attesting witness and, therefore, debarred from taking his legacy. That certainly cannot have been the intention of the law. I consider that it would be open to such a person to say that he is not an attesting witness, because he did not put his signature on the will with a view to attesting the signature of the executant. If that view be correct, it follows that a person cannot be an attesting witness unless he has an animus attestandi. 26. Having regard to what I have said above, I must hold that Madan Swarup is not an attesting witness. Mr. Ghosh suggested that the case should go back for a fresh examination of Madan Swarup to ascertain whether Madan Swarup signed the will animo attestandi. In my opinion, this should not be done. It is perfectly clear from the petition and the affidavit sworn by the petitioner at the time of applying for the commission that Madan Swarup was never considered to be an attesting witness. It is also abundantly clear from the document itself that Madan Swarup did not sign as an attesting witness. The oral evidence given was not directed to show that he signed as an attesting witness. It is only when the attestation of the other witness, Girvar, could not be established that Madan Swarup was set up as an attesting witness. In these circumstances it would not be right to send the case back for a fresh examination of Madan Swarup so as to enable him to say that he signed as an attesting witness. To do so would be to invite perjury. The application for probate should accordingly be dismissed. 27. There remains the question of costs. In my opinion the petitioner had no option but to apply for probate and he has done nothing which would disentitle him to get the costs of this application. The application, has failed through no fault of his. I accordingly direct that the parties shall get their costs including reserved costs out of the estate. The case is certified to be fit for two counsel and the costs will be as of a hearing.