2025 INSC 18
SUPREME COURT OF INDIA
(HON’BLE C.T. RAVIKUMAR, J. AND
HON’BLE SANJAY KAROL, JJ.)
GOPAL KRISHAN
Petitioner
VERSUS
DAULAT RAM
Respondent
Civil
Appeal No(S) 13192 OF 2024 (Arising out of Special Leave Petition (Civil)
No.25645 of 2018)-Decided on 02-01-2025
Family
Indian Succession Act, 1925,
Section 63(c) – Will – Suspicious circumstance – Proof of execution - Words ‘direction of the testator’ -
View taken by the High Court is that the attesting witness, in his deposition,
did not state that the act of affixing his thumb impression on the Will
subject matter of dispute was at the direction of the Testator and, therefore,
the requirement stipulated u/s 63 If the Act was not met – Held that the
language of Section 63(c) of the Act uses the word ‘OR’ - It states that
each Will shall be attested by two or more witnesses who have seen the Testator
sign or affix his mark on the Will OR has seen some other persons sign the Will
in the presence and by the direction of the Testator OR has received a personal
acknowledgment from the Testator of his signature or mark etc.- What flows
therefrom is that the witnesses who have attested the Will ought to have seen
the Testator sign or attest his mark OR have seen some other persons sign the
Will in the presence of and on the direction of the Testator -Testimony of DW-1
is clear that he had seen the deceased affix his mark on the Will - That alone
would ensure compliance of Section 63(c) - The part of the Section that
employs the term ‘direction’ would come into play only when the attester to the
Will would have to see some other person signing the Will - Such signing
would explicitly have to be in the presence and upon the direction of the
Testator - High Court erred in law and as such the impugned judgment of the
High Court with the particulars as described in para 1 liable to be set aside -
The Judgment of the First Appellant Court stand restored - Consequently, the
Will of ‘S’ held to be valid and so are the subsequent Sale Deeds executed by
appellant.
(Para
13 to 15)
JUDGMENT
Sanjay Karol J. :- Impugned in this appeal is the
judgment and order of the Punjab and Haryana High Court in RSA No. 1935 of 2015
dated 26th March 2018 whereby it has been held that the Will, subject matter of
controversy, allegedly of one Sanjhi Ram, had not been proved, thereby finding
that the Lower Appellate Court[Civil Suit
No. 282 of 2006, judgment dated 24 th February 2011 delivered by Civil Judge,
Senior Division, Gurdaspur.] had
erred in holding otherwise. The said Lower Appellate Court had set aside the
decree of the Civil Court[Civil Suit No.
282 of 2006, judgment dated 24th February 2011 delivered by Civil Judge, Senior
Division, Gurdaspur.] which had found that the Will and the
subsequent Civil Appeal No. 27 of 2011, judgment dated 5th September 2014
delivered by The Court of Additional District Judge (Adhoc), Fast Track Court,
Gurdaspur. mutation of the properties
enumerated therein was bad in law, as the Will was “illegal”, “null” and
“void”. The question that falls for our consideration is-
“What do the words “by the
direction of the testator” as they appear in Section 63 (c) of the
Indian Succession Act, 1925 mean? Is the term to be interpreted liberally or
strictly? Consequently, was the High Court correct in holding, in agreement
with the Civil Court, that the Will, subject matter of dispute, stood not
proved?”
2.
Facts, shorn of unnecessary details, as they appear from the record are as
follows: -
2.1
Sanjhi Ram[Testator] , was the
owner of 1/4th share of land measuring 40 canals, 3 marlas, comprised in Khewat
no.7, Khatauni no.9, Rett no. 9, Kila no. 9/8 situated in the Revenue Estate of
Village Umarpura, Khurd, Tehsil and District Gurdaspur, Punjab. His share in
the aforesaid property was to the extent of 10 canals and 1 marla[Suit property] .
2.2
The Testator had no children and resided with his nephew Gopal Krishan[Hereafter appellant no.1] . He
executed a Will on 7th November 2005 and passed away the next day on 8th
November 2005. The death certificate issued by the competent authority is dated
19th November 2005.
2.3
Having received the property by virtue of the aforesaid Will, the appellant
transferred the same in favour of his four sons viz., Ravinder Kumar; Rajinder
Kumar; Satish Kumar and Roop Lal vide Sale Deed dated 16th January 2006. The
said property was sold jointly for a sum of Rs.98,000/- to Madhu Sharma and
Meena Kumari, vide Sale Deed dated 3rd February 2006.
2.4
Respondent nos.1 to 7 herein filed a Suit bearing No. 282 of 2006 before the
Civil Court, seeking declaration to the effect inter alia (i) that the
plaintiffs (respondents herein) were the owners of Sanjhi Ram’s 1/4 th share;
(ii) that the Will dated 7th November 2005 was forged and fabricated; and (iii)
that the mutation carried out subsequent to the execution of such a Will is
illegal and not binding on the plaintiffs. 2.5 By way of written statement
dated 24th April 2006 the contentions made in the plaint were denied.
3.
The Trial Court framed seven issues primarily pertaining to, (a) validity of
the Will subject matter of the present lis; (b) whether the plaintiffs are
estopped by their act and conduct from filing the suit; and (c) whether the
plaintiffs have the locus standi to file the suit and whether the same is
maintainable, within limitation and filed with sufficient court fees, being
affixed thereto.
3.1
Of primary importance to the present adjudication is the findings qua issue
no.1. The relevant extracts from the judgment of the Civil Court are as below:-
“10. On going through the file I
find it has been admitted by the witnesses of the defendants that Sanjhi Ram
remained ill. The claim of the Plaintiffs is that he died on 7.11.2005 and the
claim of the Defendants that the died on 8.11.2005. The defendants did not
being the death certificate of Shri Sanjhi Ram on the file and thus failed to
rebut the contention of the Plaintiffs. The visit of Sanjhi Ram at Tehsil
Gurdaspur on 7.11.2005 and then executing the Will on the said day without any
registration of the same and adjustment of lines on the page in the lower
portion and further adjusting the seal by the scribe in the left margin and
further the place the thumb mark alleged to be of Sanjhi Ram make the will
suspicious which cannot be relied on.”
4.
On appeal the Lower Appellate Court relied on a judgment returned by a Division
Bench of the High Court of Judicature at Allahabad and one judgment of the
Rajasthan High Court to hold that even if the Testator was ill, so long as his
mental faculties were not affected, no inference could be drawn that he was not
of sound state of mind or that he could not execute a Will. In the facts of the
instant case, it was observed that nowhere did the case record reflect that
Sanjhi Ram’s mental faculties were in any way questionable nor was he
disoriented or affected by illness. In regard to other observations of the
Civil Court reproduced (supra) the Lower Appellate Court held as under:-
“16. As noted above, learned
Lower Court had found the Will Ex.D1 suspicious also for the reason that the
spacing in between last lines in this Will was narrower than the space
available between lines in remaining upper part of this Will. In this
context learned counsel for the appellants has relied upon Judgment
Bahadur Singh versus Poonam Sin h & Ors, (Supra) which applies to the
facts of the case in hand. Vide it Hon’ble High Court categorically observed
that merely because the spacing of last two three lines is less than the
earlier lines it cannot be said that the Will is not genuine. To accommodate
writing in one page, sometimes last lines are written closely and therefore
such circumstances should not be considered as adverse circumstances. In the
case in hand also Will Ex.P1 is on a single page. Moreover, the lines on more
than two third of this page have equal spacing between them. It is in the last
1/3rd part of the page of Will that spacing goes on narrowing. When the Will is
on a single page only narrowing of space towards end of the writing has to be
taken as a natural phenomenon.” Having observed as above, the Will was held to
be valid and genuine, so also it was held that the consequent sale deeds cannot
be held invalid. The judgment of the lower Court was set aside.
5.
In second appeal the High Court found that: -
(A) The reduction of space while
concluding the Will had “totally escaped the notice of the Court’s below”, and
that this was a glaring illegality and perversity. The attesting witness, Janak
Raj (DW-1) had not stated in his examination that his thumb print had been
appended to the Will upon the direction of the Testator which is a requirement
in law. For such a conclusion, reliance was placed on Janki Narayan Bhoir v.
Narayan Mandeo Kadam6 and the Judgment of the Division Bench of the High
Court titled Kanwaljit Kaur v. Joginder Singh Badwal (deceased
through LRs)7.
(B) Placing reliance on the
Constitution Bench Judgment of this Court in Pankajakshi (Dead)
through LRs v. Chandrika and Ors., the Court without framing substantial
questions of law set aside the judgment of the Lower Appellate Court. The
appeal preferred by the present respondents was thus allowed.
6.
Having traversed the Courts below as aforesaid, the dispute stands before us.
We have heard the learned counsel for the parties.
7. Section
63 of the Indian Succession Act, 1925 runs thus:-
“63. Execution of unprivileged
Wills.— Every testator, not being a soldier employed in an expedition or
engaged in actual warfare, or an airman so employed or engaged, or a mariner at
sea, shall execute his Will according to the following rules:—
(a) The testator shall sign or
shall affix his mark to the Will, or it shall be signed by some other person in
his presence and by his direction.
(b) The signature or mark of the
testator, or the signature of the person signing for him, shall be so placed
that it shall appear that it was intended thereby to give effect to the writing
as a Will.
(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 acknowledgement of his signature or mark, or 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.”
(emphasis
supplied)
As seen above, Section
63(c) enumerates five distinct situations:
A is the testator of the Will in
question. B and C have signed the Will. For B and C to qualify as attestors,-
Situation 1:
Each of them has to have seen A
sign the will or put his mark on it;
OR Situation 2:
They should have seen some other
person, let’s say D sign the will in the presence of and on the direction of A;
OR
Situation 3:
They ought to have received a
personal acknowledgment from A to the effect that A had signed the Will or has
affixed his mark thereon; With the use of the conjunctive, ‘and’ one further
stipulation has been provided: B, C, D or any other witness is required to sign
the Will in the presence of A however it is not necessitated that more than one
witness be present at the same time.
The statutory language also
clarifies that B and C, the attestors, are not required to follow any
particular prescribed format.
8.
The requisites for proving of a Will are well established. They were recently
reiterated in a Judgment of this Court in Meena Pradhan and others
v. Kamla Pradhan and Another. See also Shivakumar and Others v.
Sharanabasappa and Others. The principles as summarised by the former are
reproduced as below:-
“…10.1. The court has to consider
two aspects : firstly, that the will is executed by the testator, and secondly,
that it was the last will executed by him;
10.2. It is not required to be
proved with mathematical accuracy, but the test of satisfaction of the prudent
mind has to be applied. 10.3. A will is required to fulfil all the formalities
required under Section 63 of the Succession Act, that is to say:
(a) The testator shall sign or
affix his mark to the will or it shall be signed by some other person in his
presence and by his direction and the said signature or affixation shall show
that it was intended to give effect to the writing as a will;
(b) It is mandatory to get it
attested by two or more witnesses, though no particular form of attestation is
necessary;
(c) Each of the attesting
witnesses must have 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
such signatures;
(d) Each of the attesting
witnesses shall sign the will in the presence of the testator, however, the
presence of all witnesses at the same time is not required;
10.4. For the purpose of proving
the execution of the will, at least one of the attesting witnesses, who is
alive, subject to the process of court, and capable of giving evidence, shall
be examined; 10.5. The attesting witness should speak not only about the
testator’s signatures but also that each of the witnesses had signed the will
in the presence of the testator;
10.6. If one attesting witness
can prove the execution of the will, the examination of other attesting
witnesses can be dispensed with; 10.7. Where one attesting witness examined to
prove the will fails to prove its due execution, then the other available
attesting witness has to be called to supplement his evidence;
10.8. Whenever there exists any
suspicion as to the execution of the will, it is the responsibility of the
propounder to remove all legitimate suspicions before it can be accepted as the
testator’s last will. In such cases, the initial onus on the propounder becomes
heavier;
10.9. The test of judicial
conscience has been evolved for dealing with those cases where the execution of
the will is surrounded by suspicious circumstances. It requires to consider
factors such as awareness of the testator as to the content as well as the
consequences, nature and effect of the dispositions in the will; sound, certain
and disposing state of mind and memory of the testator at the time of
execution; testator executed the will while acting on his own free will;
10.10. One who alleges fraud,
fabrication, undue influence et cetera has to prove the same. However, even in
the absence of such allegations, if there are circumstances giving rise to
doubt, then it becomes the duty of the propounder to dispel such suspicious
circumstances by giving a cogent and convincing explanation;
10.11. Suspicious circumstances
must be “real, germane and valid” and not merely “the fantasy of the doubting
mind [Shivakumar v. Sharanabasappa,
”. Whether a particular feature
would qualify as “suspicious” would depend on the facts and circumstances of
each case. Any circumstance raising suspicion legitimate in nature would
qualify as a suspicious circumstance, for example, a shaky signature, a feeble
mind, an unfair and unjust disposition of property, the propounder himself
taking a leading part in the making of the will under which he receives a
substantial benefit, etc.”
9.
This case raises the question whether the third requirement u/s 63 of
the Act stands met in the present case particularly as to the contours of the
meaning of the phrase ‘direction of the testator’.
10.
The word ‘direction’, as discussed in the Cambridge Dictionary, can be employed
in various contexts – (a) giving instructions to someone to find a particular
place or location; (b) looking to an area or position where someone is placed;
(c) a sense of direction i.e., the ability to find or locate a particular
place;
(d)
control or instruction; and (e) information or orders telling somebody how or
what to do.
11.
The present case concerns (d) and/or (e) as above. The view taken by the High
Court is that the attesting witness, in his deposition, did not state that the
act of affixing his thumb impression on the Will subject matter of dispute
was at the direction of the Testator and, therefore, the requirement stipulated
u/s 63 Iof the Act was not met.
12.
The abovesaid conclusion of the High Court is based on the testimony of Janak
Raj, who is DW-1. His testimony reads as under:-
“1. That I know both the parties.
I also knew Sanjhi Ram, Son of Shri Tulsi Ram, who was a resident of our
Village. He was residing at Gopal Krishan. Sanjhi Ram died issueless. His wife
is predeceased him. Gopal Krishan used to serve deceased Sanjhi Ram and was
looking after him. Shri Sanjhi Ram who was real uncle of Gopal Krishan, while
possessed of sound disposing mind, executed a valid Will on 7.1.2005 in favour
of Gopal Krishan. I have seen the original WILL which bears my thumb
impression. The WILL is Ex.D.1. The same was scribed by the Deed Writer at the
instance of Shri Sanjhi Ram. He further scribing the same, read over and
explained the contents of the WILL Ex.D1. Sh. Sanjhi Ram after admitting the
contents of the WILL, appended his thumb impression in my presence and as well
as in the presence of other attesting witness Sh. Tarsem Lal and thereafter I
and other attesting witness put my thumb impression and signature respectively.
On the basis of WILL Ex.D.1 Shri Gopal Krishan defendant is owner in possession
of the land of the land of Shri Sanjhi Ram. The Plaintiffs have got no right,
title or interest in the land let by Shri Sanjhi Ram. …”
(emphasis
supplied)
13.
The language of Section 63(c)of the Act uses the word ‘OR’. It states that
each Will shall be attested by two or more witnesses who have seen the Testator
sign or affix his mark on the Will OR has seen some other persons sign the Will
in the presence and by the direction of the Testator OR has received a personal
acknowledgment from the Testator of his signature or mark etc. What flows
therefrom is that the witnesses who have attested the Will ought to have seen
the Testator sign or attest his mark OR have seen some other persons sign the
Will in the presence of and on the direction of the Testator. The judgment
relied on by the learned Single Judge in the impugned judgment,
i.e., Kanwaljit Kaur (supra) holds that the deposition of the
attesting witness in the said case had not deposed in accordance with Section
63(c) of the Act, where two persons had undoubtedly attested the Will, but
the aspect of the ‘direction of the testator’ was absent from such deposition.
In the considered view of this Court, the Learned Single Judge fell in error in
arriving at such a finding for the words used in the Section, which already
stands extracted earlier, read -“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…”. That being the case, there is no reason why the ‘or’ employed
therein, should be read as ‘and’. After all, it is well settled that one should
not read ‘and’ as ‘or’ or vice-versa unless one is obliged to do so by
discernible legislative intent. Justice G.P Singh’s treatise, ‘Principles of
Statutory Interpretation’ tells us that the word “or” is normally disjunctive
while the word “and” is normally conjunctive. Further, it is equally well
settled as a proposition of law that the ordinary, grammatical meaning
displayed by the words of the statute should be given effect to unless the same
leads to ambiguity, uncertainty or absurdity. None of these requirements, to
read a word is which is normally disjunctive, as conjunctive herein, are
present.
14.
In the present case the testimony of DW-1 is clear that he had seen the
deceased affix his mark on the Will. That alone would ensure compliance
of Section 63(c). The part of the Section that employs the term
‘direction’ would come into play only when the attestor to the Will would have
to see some other
person
signing the Will. Such signing would explicitly have to be in the presence and
upon the direction of the Testator.
15.
The requirement of law while undoubtedly present, was not of concern in the
instant dispute. On that count, we find the High Court to have erred in law. As
such the impugned judgment of the High Court with the particulars as described
in para 1 is set aside. The Judgment of the First Appellant Court stand
restored. Consequently, the Will of Sanjhi Ram is valid and so are the
subsequent Sale Deeds executed by Gopal Krishan.
Appeal
is allowed in the aforesaid terms. Pending application(s) if any shall stand
disposed of.
------