# X•li1luaker Dt11 tmtl Anolher v. Dhirmdra Nath Polro and Qlhus M~ '"'· '95+ JWj1 AlllflOI Singh ~d {ftWlher

- **Citation:** [1955] 1 S.C.R. 481
- **Court:** Supreme Court of India
- **Decided:** 1953-06-24
- **Case number:** Election Tribunal, Ludhiana, m Election Petition No. 153 of 1952
- **Bench:** MuKHERJEA, VIVIAN BosE, Venkatarama Ayyar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/x-li1luaker-dt11-tmtl-anolher-v-dhirmdra-nath-polro-and-qlhus-m-95-jwj1-352
- **Pages:** 9

## Headnote

Representation of the People Act, 1951 (XLill of 1951), ss. 2
(J)(k), 33(1) and (2), 36(2)(d) and (")-Representation of the People
(Conduct of Elections and Election Petitions) Rules, 1951, r. 2(2)-
Nomination paper-Subscribed by illiterate proposer and seconderContaining thumb-mark instead of signatures-No attestation thereof
-Validity
of-Attestation-Whether
a
necessary
formality-At
what stage it must exist~Whether can be validated at scrutiny .stage.
Under section 33( 1) of the Representation of the People Act,
1951, each nomination paper should be "subscribed" by a proposer
and a seconder. Where the proposer and the seconder of a nomination paper (as in the present case)
arc illiterate and so place
thumb-marks instead of signatures and those thumb-marks arc not
attested,
the nomination paper is
invalid as
attestation
in the
prescribed manner in such a case is necessary because of rule 2(2)
of the Representation of the People (Conduct of Elections and
Election Petitions) Rules, 1951, which requires it.
Signing, whenever
signature is necessary, must be
in strict
accordance with the requirements of the Act and where the signature cannot be written
it
must
be
authorised
in the manner
prescribed by the Rub.
&.a
1954
X•li1luaker Dt11
tmtl Anolher
v.
Dhirmdra Nath
Polro and Qlhus
M~ '"'·
'95+
JWj1 .. AlllflOI
Singh ~d {ftWlher
v.
Atma' Ram
and Others.
SUPREME COURT REPORTS
[1955]
Attestation is' not a mere ttchnical or
unsubstantial
requir.ement within the meaning of section 36( 4) .of the Act a11d cannot be
dispensed with.
·
The attestation and the satisfa,ction must exist at the presentation stage and a total omissiOn of
such an essential feature
cannot be subsequently validated at the scrutiny
stage any more than
the omission of a candidate to sign at all could have been.
Section· 36 of the Act is mandatory and enjoins the Returning
Officer to refuse any nomination when there has been "any failure
to comply with any of the provisions of section 33."
CiV1L
APPELLATE
JuRISDICTION:
Civil
Appeals
No" 213A and 2!3B of 1953.
Appeals by Special Leave against the Judgment
and Order dated the 24th June,
1953, of the Election
Tribunal,
Ludhiana,
m
Election
Petition
No.
153
of 1952.
C.
K.
Daphtary,
Solicitor-General
for
lndia.
(Harbans Singh Doabia and Rajinder Narain, with
himJ for the appellant in Civil Appeal No. 213A.
Tilak Raj Bhasin and Harbans Singh for respondent No. 2 in Civil Appeal No. 213A and the appellant
in Civil Appeal No. 213B.
N aunit Lal for respondents Nos. 3 and 19 in both
the appeals.
.
r
1954. May 21. The Judgment of the Court was
delivered by
.
J
BosE J.-These are two appeals against the decision
orthe Election Tribunal at Ludhiana.
The contest was for two seats in the Punjab '
Legislative Assembly.
The constituency
1s
a double
member constituency, ·one seat being general and the
other reserved for a Scheduled Caste. The first respondent
1s Atma Ram. He was
a candidate
for the
reserved seat
but his nomination was rejected
hy
the
Returning Officer at the scrutiny stage and so he was
unable to contest the
election. The successful candidates were Rattan Anmol Singh, the ~ppellant in Civil
Appeal No. 213-A of 1953, for the general seat and
Ram Prakash, the appellant in Civil Appeal No. 213-B
.of 1953, for the reserved.
Atma Ram filed the present
election petition. The Election Tribunal decided
in
...
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s:e.R.
SUPREME COURT REPORTS
his favour
by a majority of two to one and declared
the whole election void. Rattan Anmol Singh and
Ram Prakash appeal'here.
The main question we have to decide is whether the
Returning Officer was right in rejecting the petitioner's
nomination papers. The facts which led him to do so
.are as follows. The Rules require that each nomination
paper should be "subscribed" by a proposer and a
seconder. The petitioner put in four papers. In each
case, the proposer and seconder were illiterate and so
placed a thumb-mark instead of a signature. But these
thumb-marks were not
"attested".

## Text

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S.C.R.
SUPREME COURT REPORTS
481
would be of no avail to them when the alienation is not
binding on the whole estate but only on the woman's
estate of Rashmoni."
In our opinion the view taken by the High Court is
quite proper. On this finding the security bond could
operate only on the widow's estate of Rashmoni and
it was that interest alone which passed to the purchaser
at the mortgage
sale.
The subsequent transferee
could not claim to have acquired any higher right
than what his predecessor had and it 1s immaterial
whether he bona fide paid the purchase money or took
proper legal advice. The result is that in our opinion
the decision of the High Court is right and this appeal
must stand dismissed with costs.
Appeal dismissed.
RATIAN
ANMOL
SINGH
AND
ANOTHER
ti.
ATMA RAM AND OTHERS.
[MuKHERJEA, VIVIAN BosE and
VENKATARAMA AYYAR JJ.]
Representation of the People Act, 1951 (XLill of 1951), ss. 2
(J)(k), 33(1) and (2), 36(2)(d) and (")-Representation of the People
(Conduct of Elections and Election Petitions) Rules, 1951, r. 2(2)-
Nomination paper-Subscribed by illiterate proposer and seconderContaining thumb-mark instead of signatures-No attestation thereof
-Validity
of-Attestation-Whether
a
necessary
formality-At
what stage it must exist~Whether can be validated at scrutiny .stage.
Under section 33( 1) of the Representation of the People Act,
1951, each nomination paper should be "subscribed" by a proposer
and a seconder. Where the proposer and the seconder of a nomination paper (as in the present case)
arc illiterate and so place
thumb-marks instead of signatures and those thumb-marks arc not
attested,
the nomination paper is
invalid as
attestation
in the
prescribed manner in such a case is necessary because of rule 2(2)
of the Representation of the People (Conduct of Elections and
Election Petitions) Rules, 1951, which requires it.
Signing, whenever
signature is necessary, must be
in strict
accordance with the requirements of the Act and where the signature cannot be written
it
must
be
authorised
in the manner
prescribed by the Rub.
&.a
1954
X•li1luaker Dt11
tmtl Anolher
v.
Dhirmdra Nath
Polro and Qlhus
M~ '"'·
'95+
JWj1 .. AlllflOI
Singh ~d {ftWlher
v.
Atma' Ram
and Others.
SUPREME COURT REPORTS
[1955]
Attestation is' not a mere ttchnical or
unsubstantial
requir.ement within the meaning of section 36( 4) .of the Act a11d cannot be
dispensed with.
·
The attestation and the satisfa,ction must exist at the presentation stage and a total omissiOn of
such an essential feature
cannot be subsequently validated at the scrutiny
stage any more than
the omission of a candidate to sign at all could have been.
Section· 36 of the Act is mandatory and enjoins the Returning
Officer to refuse any nomination when there has been "any failure
to comply with any of the provisions of section 33."
CiV1L
APPELLATE
JuRISDICTION:
Civil
Appeals
No" 213A and 2!3B of 1953.
Appeals by Special Leave against the Judgment
and Order dated the 24th June,
1953, of the Election
Tribunal,
Ludhiana,
m
Election
Petition
No.
153
of 1952.
C.
K.
Daphtary,
Solicitor-General
for
lndia.
(Harbans Singh Doabia and Rajinder Narain, with
himJ for the appellant in Civil Appeal No. 213A.
Tilak Raj Bhasin and Harbans Singh for respondent No. 2 in Civil Appeal No. 213A and the appellant
in Civil Appeal No. 213B.
N aunit Lal for respondents Nos. 3 and 19 in both
the appeals.
.
r
1954. May 21. The Judgment of the Court was
delivered by
.
J
BosE J.-These are two appeals against the decision
orthe Election Tribunal at Ludhiana.
The contest was for two seats in the Punjab '
Legislative Assembly.
The constituency
1s
a double
member constituency, ·one seat being general and the
other reserved for a Scheduled Caste. The first respondent
1s Atma Ram. He was
a candidate
for the
reserved seat
but his nomination was rejected
hy
the
Returning Officer at the scrutiny stage and so he was
unable to contest the
election. The successful candidates were Rattan Anmol Singh, the ~ppellant in Civil
Appeal No. 213-A of 1953, for the general seat and
Ram Prakash, the appellant in Civil Appeal No. 213-B
.of 1953, for the reserved.
Atma Ram filed the present
election petition. The Election Tribunal decided
in
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s:e.R.
SUPREME COURT REPORTS
his favour
by a majority of two to one and declared
the whole election void. Rattan Anmol Singh and
Ram Prakash appeal'here.
The main question we have to decide is whether the
Returning Officer was right in rejecting the petitioner's
nomination papers. The facts which led him to do so
.are as follows. The Rules require that each nomination
paper should be "subscribed" by a proposer and a
seconder. The petitioner put in four papers. In each
case, the proposer and seconder were illiterate and so
placed a thumb-mark instead of a signature. But these
thumb-marks were not
"attested". The
Returning
·Officer held that without "attestation" they are invalid
and so rejected them. The main question is whether
he was right in so ho1ding. A subsidiary question also
.arises, namely, whether, assuming attestation to be
necessary under the Rules, an omission to obtain the
required attestation amounts to a technical
defect of
an unsubstantial character which the Returning Officer
was bound to disregard under section 36( 4) of the
Representation of the People Act,
1951
(XLIII of
1951).
Section 33 ( 1) of the Act requires each candidate to
"deliver to the Retur:ning Officer ...... a nomination
paper completed in the prescribed form and subscribed
by the candidate himself as assen'.ting to the nomina-
·tion and by two persons referred to in sub-section (2)
as proposer and seconder."
Sub-section (2) says that-
. · "~y person whose name is registered etc.. . . • . . may
·subscribe as proposer or seconder as many nomination
papers as there are vacancies to be filled ...... "
The controversy centres on the word "subscribed"
·which has not been defined in the Act.
The prescribed nomination form referred to in subsection ( 1) of section 33 is to be found in
Schedul~ II.
ln this form we have the following :-
"9. Name of the proposer
... ,,,, ............ t•••·········
12. Signature of the proposer
t~
~1 .. Airmol
Sinth 11nd ,'111DI~
v.
AllM &Ill
and Otkrs.
•
Bose :f·
484
SUPREME COURT REPORTS
[1955l
•95{
13. Name of the seconder
R.in ..1-i
Sirt1h """ "1Ndtlr
••
Alma Rm
1-4 Ol/wr1,
s.,, J.
.......... "'" ...................... .
16. Signature of the seconder."
The Oxford English Dictionary sets out thirteen
shades of meaning to the word "subscribe", most of
them either obsolete or now rarely used. The only two·
which can have any real relation to the present matter
are the following :
I. "To write (one's name or mark) on, originally
at the bottom of a document, especially as a witness.
or contesting party ; to sign one's name to."
This meaning is described as "rare."
2. "To sign one's name to ; to signify assent oradhesion to
by
signing one's
name ; to attest by
. . "
stgnmg.
This appears to be its modern meaning, and is.
also one ·of the meanings given to the word "sign",
namely "to attest or confirm by adding one's signature ;:
to affix one's name to (a document) etc."
One also finds the following in Stround's Judicial:
Dictionary, 3rd edition :
"Subscribe. ( 1) 'Subscribe' means to write under·
something in accordance with
prescribed regulations
where any such qist ............ But though this is thestrict primary meaning of the word, it may sometimes,
e.g., in the attestation of a will, be construed as 'to·
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give assent to, or to attest or written upon ........... .
. "(3) 'Subscription is a method of signing; it is not
the only method' ; a stamped, or other mechanical
impression · of a signature is good, in the case of·
I .
.
"
\
e ecttoneenng papers ....... .
It is clear that the word can be used in various
senses to indicate different ·modes of signing and that
it includes the placing of a mark. The General Clauses
Act -also says that-
'". '
. h
f
h .
sign ........ wit
re erence to a person
w o ts .
unable to write his name, includes 'mark' ".
But this is subject to there being nothing repugnant
m the subject or context· of. the- Act, . fo. ·our- opinion,
the crux of the matter lies there. We have to see-
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S.C.R.
SUPREME COURT REPORTS
485
from the Act itself whether "sign" and "subscribe"
mean the same thing and whether they can be taken
to include the placing of a mark. The majority decision of the Tribunal holds that "sign" and "subscribe"
are not used in the same sense in the Act because a
special meaning has been given to the word "sign" and
none to the word "subscribe", therefore, we must use
"subscribe"
in its ordinary meaning ; and its
ordinary
meaning is to "sign" but not to "sign" in the special
way prescribed by the Act but in the ordinary way ;
therefore we must look to the General Clauses Act for
its ordinary meaning and that shows that when it is
used in its ordinary sense it includes the making of a
mark.
We agree with the learned Chairman of the Tribunal
that this is fallacious reasoning. The General Clauses
Act does not define the word "subscribe" any more
than the Representation of the People Act, and if it is
improper to exclude the special meaning given to
"sign" in the Representation of the People Act because
the word "sign" is defined and not "subscribe," it is
equally improper to import the special definition of
"sign" in the General Clauses Act because that also
defines only "sign" and not "subscribe," and
also
because
the "subject" and "context" of the Representation of the People Act show that the writing of
a signature and the making of a mark are to be treated
differently.
The learned counsel for the respondent analysed the
Act for us and pointed out that the word "subscribe"
is only used in Chapter I of Part V dealing with the
Nomination of Candidates while in every other place
the word "sign" is used. We do not know why this
should be unless, as was
suggested by the
learned
Solicitor-General, the Legislature wished to underline
the fact that the proposer and seconder arc not merely
signing by way of attesting the candidate's signature
to the nomination form but are actually themselves
putting the man forward
as a suitable candidate for
election and as a person for whom they are prepared
to
vouch, also that the candidate's signature imports
more than a mere vouching for the accuracy of the
195+
Reitan Anmol
·SU.th nd Anoth11
Y.
Alma Ram
a1td Others
BOSI}.
Rattan AnmOl
Sl•th and AnQlh1t
v.
Atma Ram
and Olhl".
BoJ' ].
~86
SUPREME COUR'P REPORTS
[1955]
facts entered in the form. It imports assent to his
nomination. We think· the
learned Solicitor-General
is probably right because section 33 speaks of
"a nomination paper completed in the prescribed
form and subscribed by the candidate himself as assenting to the nomination."
But however that may be, it is evident from the form
that "signatures" are required. It is also evident from
the definition of "sign" that the
Legislature attached
special importarice to the fact that in the case of
illiterate persons unable to write their names it is
necessary to guard against misrepresentation and fraud
by requiring that their signatures should be formally
authenticated in a particular way. A special statutory
cloak of protection is thrown around them just as the
9rdinary law clothes pardanishin women and illiterate
and ignorant persons and others likely to be imposed
on, with special protective covering.
Now it is to be observed that section 2 calls itself an
"interpretation" section. It says-
" (I) In this Act, unless
the
context otherwise
requires
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.,,.
(k) 'sign' in relation to a person who ts unable
to write his name means authenticate in such manner
:is may be prescribed."
It is evident then that wherever the element
of
"signing" has to be incorporated into any provision
of the · Act it must · be construed in the sense set out
above.
Therefore, whether "subscribe"
1s
a synonym
for ''sign" or whether it means "sign" plus something
else, namely a particular assent, the element of "sign4f
ing"
haS" to be present: the schedule
places
that
beyond doubt because it requires certain "signatures."
We are consequently
of opinion
that the
"signing,"
whenever a "signature" is
necesary, must be in strict
accordance with the requirements of the Act and that
where the signature cannot be written it must be
authorised in
the manner
prescribed by the Rules.
Whether this attaches exaggerated importance to the
authorisation is not for us to decide. · What is beyond
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S.C.R.
SUPREME COURT REPORTS
487
dispute is that this is regarded as a matter of special
moment and that special prov1S1on has been made to
meet such cases. We are therefore bound to give full
effect to this policy.
Now if "subscribe" can mean both signing, properly
so called, and the placing of a mark (and it is clear that
the word can be used in both senses), then we feel that
we must give effect to the general policy of the Act by
drawing the same distinction between signing and the
making of a mark as. the Act itself does in the definition
of "sign." It is true the
word "subscribe" is not
defined but it is equally clear, when the Act is read as
a whole along with the form in the second schedule,
that "subscribe"
can only
be used
in the sense
of
making a signature and as the Act tells us quite clearly
how the different types of "signature" are to be made,
we are bound to give effect to it. In the case of a person
who is unable to write his name his "signature" must
be authenticated in "such manner as may be prescribed." The prescribed manner is to be found in
rule 2(2) of the Representation of the People (Conduct
of Elections and Election Petitions)
Rules, 1951. It
runs as follows :
"For the purposes of the Act or these rules, a
person who is unable to write
hi~ name shall, unless
otherwise expressly provided in these rules, be deemed
to have signed an instrument or other paper if he has
placed a mark on such instrument or other paper m
the presence of the Returning Officer or the presiding
officer or such other officer as may be specified in this
behalf by the Election Commission and such officer on
·being satisfied as to his identity has attested the mark as
being the mark of such person."
In view of this we are clear that attestation m the
prescribed manner is required in the case of proposers
and seconders who are not able to write their names.
The four nomination papers we are concerned with
were not "signed" by the proposers and seconders m
the usual way by writing their names, and as their
marks are not attested it is evident that they have not
oJ"~
been "signed" m the special way which the Act
'9.5+
Rdllaff Anmol
Sin1h and Affolh "
\'.
Atma R11m
11nd Othm.
Bo11 J.
195•
Rattan .A.nm•l
·Singh an.d .Anotlur
v.
Atam Ram}
. and Oth111.
• Bos1J.
488
SUPREME COURT REPORTS
[1955]
requires in such cases. If they are not "signed" either
in one way or the other, then it is clear that they have
not been
"subscribed"
because
"subscribing"
imports
a "signature" and as the Act sets out the only kinds
of "signatures"
which it will
recognise
as "signing"
for the purposes of the Act, we are left with the position
that there are no valid signatures of either a
proposer or a seconder in any one of the four nomina-
.tion papers. The Returning Officer was therefore bound
.to reject them under section 36(2)(d) of the Act because
there was a failure to comply with section 33, unless he
could and should have had resort to section 36(4).
That sub-section is as follows :
"The Returning Officer shall not reject any nomination paper on the ground of any technical defect which
is not of a substantial character."
..__
The question therefore is whether attestation is a
mere technical or unsubstantial requirement. We are
not able to regard it in that light. When the law
enjoins
the observance of a particular formality
it
cannot be disregarded and the substance of the thing
must be there. The substance of the matter here is the
satisfaction of the
Returning Officer
at a particular
moment of time about the identity
of the person
making a mark in place of writing a signature. If the
Returning Officer had omitted the attestation because
of some slip on his part and it could be proved that he
was satisfied at the proper time, the matter might be
different because the element of his satisfaction at the
proper time, which is of the substance, would be there,
and the omission formally to record the satisfaction
could probably, in a case like that, be regarded as in
unsubstantial technicality. But we find
it impossible
to say that when the law requires the satisfaction of a
·particular officer at a particular time his satisfaction
can be dispensed with altogether. In our opinion, this
provision is as necessary and as substantial as attestation in the cases of a will or a mortgage and is on the
same footing as the "subscribing" required in the case
of the candidate himself. If there is no signature and
: no mark the form would have to be rejected and their
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S.C.R.
SUPREME COURT REPORTS
489
absence could not be dismissed as technical and unsubstantial. The "satisfaction"
of
the
Returning Officer
which the rules require
is not, in our opinion, any the
less important and imperative.
The next question is whether the attestation can be
compelled by the persons concerned at the scrutiny
stage. It must be accepted that no attempt was made
at the presentation stage
to satisfy
the
Returning
Officer about the identity of these persons but evidence
was led to show that this was attempted at the scrutiny
stage. The Returning Officer denies this, but even if
the identities could have been proved to his satisfaction
at that stage it would have been too late because the
attestation
and
the
satisfaction
must
exist
at
the
presentation stage and a total omission of such an
essential feature cannot be subsequently validated any
more than the omission of a candidate to sign at all
<::ould have been. Section 36 is mandatory and enjoins
the Returning Officer to refuse any nomination when
there has been
"any failure to comply with any of the provisions
of section 33 ........ " The on! y jurisdiction the Returning Officer has at the scrutiny stage is to see whether
the nominations are in order and to hear and decide
objections. He cannot at that stage remedy essential
defects or permit them to be remedied. It is true he is
not to reject any nomination paper on the ground of
any technical defect which is not of a substantial
character but he cannot remedy the defect.
He must
leave it as it is. If it is technical and unsubstantial it
will not matter. If it is not, it cannot be set right.
We agree with the Chairman of the Election Tribunal
that the Returning Officer rightly rejected these nomination papers. The appeals are allowed with costs and
the order of the Election Tribunal declaring the elections
of the two successful candidates to be wholly void is
set aside. The election petition is dismissed, also with
costs.
Appeals allowed.
195+
Rattan Anmol
Sinth and .A.nath<r
v.
Alma Ram
and Olh<rs.
Bose J.