Testimony of Attesting Witness Stating That He Had Seen Testator Affix His Mark On Will Would Ensure Compliance of Section 63(c) of Indian Succession Act: SC

The Apex Court was considering an appeal against the judgment of the Punjab and Haryana High Court whereby it was held that the Will, subject matter of controversy, allegedly of one Sanjhi Ram, had not been proved, thereby finding that the Lower Appellate Court had erred in holding otherwise.

The Division Bench comprising Justice C.T. Ravikumar and Justice Sanjay Karol clarified, “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.”

AOR T. V. S. Raghavendra Sreyas represented the Appellants while AOR Abhimanyu Tewari represented the Respondents.

The main issue before the Bench was what do the words “by the direction of the testator” as they appear in Section 63 (c) of the Indian Succession Act, 1925 mean and whether the High Court was correct in agreeing with the Civil Court, that the Will, subject matter of dispute, stood not proved.

The facts of the case giving rise to the appeal were such that one Sanjhi Ram owned 1/4th share of the land in the Revenue Estate of Village Umarpur and District Gurdaspur, Punjab. The Testator had no children and resided with his nephew Gopal Krishan . He executed a Will on November 7, 2005 and passed away the next day. Having received the property by virtue of the aforesaid Will, the appellant transferred the same in favour of his four sons. The said property was sold jointly for a sum of Rs.98,000/- to Madhu Sharma and Meena Kumari, vide a Sale Deed.

The Respondents filed a Suit before the Civil Court, seeking a declaration to the effect that the plaintiffs (respondents herein) were the owners of Sanjhi Ram’s 1/4th share and the Will was forged and fabricated. The Lower Appellate Court had set aside the decree of the Civil Court which had found that the Will and the subsequent mutation of the properties enumerated therein was bad in law, as the Will was “illegal”, “null” and “void”. The High Court held 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 of the Act was not met. Aggrieved thereby, the Appellant approached the Apex Court.

The Apex Court referred to its judgment in Meena Pradhan and others v. Kamla Pradhan and Another (2023) wherein it has been held that as per section 63, 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. It has also been mentioned therein that the 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.

It was observed by the Bench 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 acknowledgement from the Testator of his signature or mark etc. 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.

“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”, it added.

It was further noticed that the testimony of DW-1 was 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”, it added.

As per the Bench, the requirement of law while undoubtedly present, was not of concern in the instant dispute. Finding the High Court to have erred in law, the Bench restored the Judgment of the First Appellant Court and consequently, the Will of Sanjhi Ram as well as subsequent Sale Deeds were held to be valid.

Cause Title: Gopal Krishan & Ors.v. Daulat Ram & Ors. (Neutral Citation: 2025 INSC 18)

Appearance:

Appellants: AOR T. V. S. Raghavendra Sreyas, Advocates Gayatri Gulati, Siddharth Vasudev

Respondents: AOR Abhimanyu Tewari, Advocates Eliza Bar, Manav Bhalla, Sidhant Awasthy, Siddhant Saroha, Praveer Singh, Abhijeet Chaudhary

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