REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICITION

CIVIL APPEAL NO.6801 OF 2003

Gopal Swaroop …Appellant

Versus

Krishna Murari Mangal & Ors. …Respondents

J U D G M E N T

T.S. THAKUR, J.

1.This appeal by special leave arises out of a judgment

and order dated 4

th

March, 2002 passed by a Division Bench

of the High Court of Madhya Pradesh at Jabalpur, Gwalior

Bench, whereby Letters Patent Appeal No.75/1994 has been

allowed in part and the judgment and decree passed by the

First Appellate Court modified.

2.The facts giving rise to the filing of a suit for partition

and separate possession by the plaintiff-respondent no.1 in

this appeal have been set out in the judgment under appeal

hence do not bear repetition. All that need be stated is that

respondent no.1 the plaintiff in the suit claimed partition of

what was described by him as joint family property with his

father Shri Panna Lal-defendant no.1 as the ‘Karta’ of the

joint family. During the pendency of the suit Shri Panna Lal

died giving rise to an additional issue as regards the

devolution of the property left behind by him including his

share in the joint family property. The appellant set up a Will

allegedly executed by Shri Panna Lal according to which the

share of the deceased testator was to devolve exclusively

upon the former. The suit filed by the respondent was

eventually decreed by the Trial Court holding plaintiff-

respondent no.1 entitled to 1/5

th

share in the joint family

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property and the goodwill of the joint family business. The

Court also found that the Will set up by the appellant herein

had been duly proved and that in terms thereof the property

left behind by Shri Panna Lal would devolve exclusively upon

the appellant.

3.Both the parties filed appeals which were heard by a

learned Single Judge of the High Court of Madhya Pradesh

who formulated the following two questions for

determination and finally dismissed the appeal by his orders

dated 26.9.1994:

(1)Whether the plaintiff took a sum of Rs.21,000/-

out of share in the capital of the defendants as

alleged or it was taken by him as his share in the

capital, house and other properties as claimed by

the defendants?

(2)Whether the plaintiff has got any share in the joint

property if any in dispute and if so to what extent?

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4.In so far as question no.1 is concerned, the learned

Single Judge affirmed the finding recorded by the Trial Court

that the plaintiff had taken his share in the capital and

interest etc. and not his share in the house and the other

properties. The finding of the Trial Court that the plaintiff

had a share in the goodwill of the family business was also

affirmed.

5.Even in regard to the second question the findings

recorded by the Trial Court was affirmed. The High Court

held that the service of a notice by the plaintiff about his

intention to separate had brought about a division in joint

family shares and that the plaintiff was entitled to have his

share in the property in the joint family ascertained and

partitioned. The High Court noted that while the plaintiff and

his brothers had 1/5

th

share each, the plaintiff’s claim for a

larger share on account of the death of his father and

devolution of the latter’s estate upon all the brothers by

succession had to be seen in the light of the Will propounded

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by defendant-appellant Gopal Swaroop. The High Court then

proceeded to discuss the evidence relating to the execution

of the Will by Shri Panna Lal including the deposition of

DW-2 Shri Vilas Tikhe in support thereof and recorded a

finding that the execution of the Will had been satisfactorily

established. The High Court also rejected the contention that

there were any suspicious circumstances surrounding the

Will which the High Court noted was a registered document.

The High Court in conclusion held that the plaintiff had 1/5

th

share in the house in question and the goodwill of the

business and affirmed the finding of the Trial Court to the

effect that the plaintiff had 1/8

th

share in the jewellery items

and the amount representing the share of Saraswatibai held

in deposit in the firm.

6.Dissatisfied with the view taken by the learned Single

Judge respondent no.1 preferred Letters Patent Appeal

No.75/1994 before a Division Bench of the High Court which

was allowed in part and the judgment and decree passed by

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the Courts below modified. The Division Bench held that the

execution of the Will by Shri Panna Lal had not been proved

in as much as the solitary witness DW-2 Vilas Tikhe did not

prove that Shri Panna Lal had signed the Will in the

presence of Manoj Kumar and that Manoj Kumar had also

singed the Will as a witness. The High Court accordingly held

that while the appellant-plaintiff and defendants 2 and 3 will

get 1/4

th

plus 1/32

nd

i.e. 9/32

nd

share each in the joint family

property the rest will go to the other legal heirs of

Ghanshyamdas and Shyam Sunder and daughters of the

deceased Panna Lal. The High Court also directed the

partition of immovable properties with 9/32

nd

share each to

the branch of Ghanshyamdas and Shyam Sunder and three

sisters of the plaintiff-appellant herein.

7.We have heard learned counsel for the parties at

considerable length. The only question that was debated

before us is whether execution of the Will propounded by the

defendant-appellant before the Trial Court had been

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satisfactorily proved. On behalf of the appellant it was

contended that the Division Bench was in error in reversing

the concurrent findings of fact recorded by the Trial Court

and the Single Judge to the effect that the execution of the

Will stood satisfactorily proved. Reliance was also placed by

learned counsel for the appellant upon the testimony of

DW-2 Vilas Tikhe one of the attesting witnesses to the Will

to contend that the deposition of the said witness had

sufficiently proved the execution of the Will in question in

compliance with the provisions of Section 63 of the Indian

Succession Act. It was argued that the deposition of DW-2

Vilas Tikhe had not been properly appreciated by the High

Court in the Letters Patent Appeal and a hyper technical

view taken while holding that the said deposition was

insufficient to prove the execution of the Will in accordance

with law.

8.Mr. Sushil Kumar Jain, counsel appearing for the

respondent contended that proof of a document purporting

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to be a Will had to satisfy the requirements of Section 63 of

the Indian Succession Act and Section 68 of the Indian

Evidence Act which requirements had not, according to the

learned counsel been satisfied in the instant case. It was

contended by the learned counsel that the mere fact that

the Will was a registered document did not mean that proof

regarding its execution in accordance with the provisions of

law could be dispensed with.

9.In a Letters Patent Appeal arising out of an order

passed by a Single Judge hearing a civil second appeal the

Division Bench of the High Court would not re-appreciate the

evidence to record a finding of fact. That is because the

Single Judge cannot himself do so in the light of the

limitations placed upon the Court by Section 100 of the

C.P.C. That may not, however, be true when the Single

Judge passes an order in a First Appeal filed before him.

Even when the finding of fact recorded by the Single Judge

may affirm the finding recorded by the Trial Court, there is

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no express bar to the examination of any such finding by the

Division Bench of the High Court hearing the Letters Patent

Appeal. Having said so, we must hasten to add that even in

the absence of any legal bar to the examination of a finding

of fact, a Letters Patent Bench will be slow in interfering with

the concurrent finding of fact recorded by the Trial Court and

the Single Judge in the first appeal. The Court may interfere

where the finding is demonstrably erroneous in that it is

either irrational or perverse being without any evidence.

The jurisdiction exercised by the Court being discretionary

ought to be exercised along judicial lines. (See Smt. Asha

Devi v. Dukhi Sao and Anr. 1974 (2) SCC 492 and B.

Venkatamuni v. C.J. Ayodhya Ram Singh and Ors.

(2006) 13 SCC 449.

10.The Trial Court and the Single Judge of the High Court

had, in the present case, concurrently held the execution of

the Will to have been satisfactorily proved. The Letters

Patent Bench has, however, reversed that finding primarily

9

on the ground that the execution of the Will is not proved in

terms of Section 68 of the Evidence Act read with Section 63

of the Indian Succession Act. Section 68 of the Evidence Act

reads as under:

“68. Proof of execution of document

required by law to be attested - If a

document is required by law to be attested, it

shall not be used as evidence until one

attesting witness at least has been called for

the purpose of proving its execution, if there

be an attesting witness alive, and subject to

the process of the Court and capable of giving

evidence:

Provided that it shall not be necessary

to call an attesting witness in proof of the

execution of any document, not being a will,

which has been registered in accordance with

the provisions of the Indian Registration Act,

1908 (16 of 1908), unless its execution by

the person by whom it purports to have been

executed is specially denied.”

11.It is evident that in cases where the document sought

to be proved is required by law to be attested, the same

cannot let be in evidence unless at least one of the attesting

witnesses has been called for the purpose of proving the

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attestation, if any such attesting witness is alive and capable

of giving evidence and is subject to the process of the Court.

Section 63 of the Indian Succession Act deals with execution

of unprivileged Wills and, inter alia, provides that every

Testator except those mentioned in the said provision shall

execute his Will according to the rules stipulated therein. It

reads:

“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

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testator, or has received from the testator a

personal acknowledgment 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.”

12.From a conjoint reading of the two provisions extracted

above it is evident that a Will is required to be attested by

two or more witnesses each of whom has seen the Testator

signing or affixing his mark on the Will or has seen some

other person signing the Will in the presence and by the

direction of the Testator or has received from the Testator a

personal acknowledgment of the signature or mark or his

signature or the signature of such other person and that

each of the witnesses has signed the Will in the presence of

the Testator. Section 68 of the Evidence Act is against the

use of a Will in evidence unless one attesting witness has

been examined to prove the execution.

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13.The question, however, is whether the Will propounded

by the appellant and purporting to have been attested by

two witnesses, namely, Manoj Kumar and Vilas Tikhe has

been validly proved. It is not disputed that one of the said

witnesses namely, Vilas Tikhe has been summoned and

examined as a witness. What is to be seen is whether the

examination of the said witness satisfies the requirements of

Section 63 of the Evidence Act (supra). A careful analysis of

the provisions of Section 63 would show that proof of

execution of a Will would require the following aspects to be

proved:

(1)That the Testator has signed or affixed his mark to the

Will or the Will has been signed by some other person in the

presence and under the direction of the Testator.

(2)The signature or mark of the Testator or the signature

of the persons signing for him is so placed has to appear

that the same was intended thereby to give effect to the

writing as a Will.

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(3)That the Will has been attested by two or more

witnesses each one of whom has signed or affixed his mark

to the Will or has been seen by some other person signing

the Will in the presence and by the direction of the Testator

or has received from Testator a personal acknowledgement

of the signature or mark or the signature of each other

person.

(4)That each of the witnesses has singed the Will in the

presence of the Testator.

14.The decisions of this Court in Bhagwan Kaur W/o

Bachan Singh v. Kartar Kaur W/o Bachan Singh & Ors.

1994 (5) SCC 135, Seth Beni Chand (since dead) now

by L.Rs. v. Smt. Kamla Kunwar and Ors. 1976 (4) SCC

554, Janki Narayan Bhoir v. Narayan Namdeo Kadam

2003 (2) SCC 91, Gurdev Kaur and Ors. v. Kaki and Ors.

2007 (1) SCC 546, Yumnam Ongbi Tampha Ibema Devi

v. Yumnam Joykumar Singh and Ors., 2009 (4) SCC

780, Rur Singh (dead) Through LRs. and Ors. v.

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Bachan Kaur, 2009 (11) SCC 1 and Anil Kak v. Kumari

Sharada Raje and Ors. 2008 (7) SCC 695 recognize and

reiterate the requirements enumerated above to be essential

for the proof of execution of an unprivileged Will like the one

at hand. It is, therefore, not necessary to burden this

judgment by a detailed reference of the facts relevant to

each one of these pronouncements and the precise

contention that was urged and determined in those cases.

All that needs to be examined is whether the requirements

stipulated in Section 63 and distinctively enumerated above

have been satisfied in the instant case by the appellant

propounder of the Will. Our answer to that question is in the

affirmative. The deposition of Shri Vilas Tikhe clearly proves

that Panna Lal had executed a Will in favour of the

appellant, Gopal Swaroop and had signed and affixed his

signature in his presence. The Trial Court and the High Court

have concurrently held that the Will had been signed by the

Testator in the presence of the attesting witnesses. First and

the foremost requirement prescribed under Section 63 of the

15

Indian Succession Act, 1925 is, therefore, clearly satisfied.

15.Coming then to the second requirement namely, the

placement of the signature of the Testator on the Will, we

find that the signature of the Testator appear at the right

hand bottom part of the Will. The placement of the signature

on the document is, therefore, appropriate and clearly

suggestive of the fact that the document was intended to be

given effect to as a Will. We must also mention that no

argument was advanced by learned counsel for the

respondent on the requirement of an appropriate placement

of the signature of the Testator on the document.

16.That brings us to the third requirement, namely, that

the Will must be attested by two or more witnesses each of

whom has seen the Testator signing and affixing his mark to

the Will or has seen some other person signing in the

presence and by the direction of the Testator. The deposition

of Shri Vilas Tikhe in our opinion satisfies this requirement

16

also in as much as the witness has in clear and unambiguous

terms stated that not only he but Shri Manoj, the other

attesting witness to the Will was also present at the time the

Testator affixed his signature on the Will. It is noteworthy

that, the above statement has not been questioned in cross-

examination nor any suggestion made to the effect that

while Shri Vilas Tikhe, the witness may have been present,

Manoj was not so present at the time the Will was signed by

the Testator. As a matter of fact, the witness has made a

categoric statement that Manoj met the Testator in the

Court and was taken along and that not only at the time of

signing of the Will by the Testator, but even before the

Registrar, Manoj Kumar was present in person. The witness

has while answering a question in cross-examination

specifically stated that Manoj was present even at the time

the witness signed the Will in question.

17.On a careful and proper reading of the deposition of

Shri Vilas Tikhe DW-2, we are satisfied that the requirement

17

of attestation of the Will by two witnesses each of whom has

seen the Testator signing or affixing his mark has been

satisfied in the present case. So also the fourth requirement

that the attesting witnesses sign the Will in the presence of

the Testator stands firmly established. In that view of the

matter, the Division Bench of the High Court fell in error in

holding that the requirement of Section 63 of the Indian

Succession Act had not been satisfied in the instant case. As

was observed by this Court in H. Venkatachala Iyengar v.

B.N. Thimmajamma AIR 1959 SC 443, in the matter of

proof of documents as in the case of the proof of Wills, it is

idle to expect proof with mathematical certainty. The test to

be applied always is the test of satisfaction of a prudent

mind in such matters. Applying that test to the case at hand

we have no manner of doubt that the Will executed by Shri

Panna Lal which is a duly registered document is not

surrounded by any suspicious circumstances of any kind and

is proved to have been duly and properly executed.

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18.In the result, this appeal succeeds and is hereby

allowed. The impugned judgment and order passed by the

Division Bench of the High Court of Madhya Pradesh at

Jabalpur, Gwalior Bench, is set aside and the judgment and

order passed by the learned Single Judge of that Court is

restored. The parties shall bear their own costs.

………… ……………… …J.

(MARKANDEY KATJU)

………… ……………… …J.

New Delhi (T.S. THAKUR)

November 25, 2010

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