REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7434 OF 2008

(Arising out of SLP (C) No.17161 of 2006)

Lalitaben Jayantilal Popat … Appellant

Versus

Pragnaben Jamnadas Kataria & Ors. … Respondents

J U D G M E N T

S.B. Sinha, J.

1.Leave granted.

2.This appeal is directed against the judgment and order dated

26.6.2006 passed in FA No.110 of 2000 and FA No.124 of 2000 by the

High Court of Gujarat at Ahmedabad dismissing appeals filed against a

common judgment and order dated 23.2.2000 passed by the learned Civil

Judge (SD) Rajkot allowing the Civil Miscellaneous Application No.25 of

1996 and dismissing the Civil Miscellaneous Application 26 of 2006.

3.One Purshottam Manji Thakrar was the owner of the property. He

purported to have executed a Will on or about 15.4.1978 in favour of the

respondents. He left behind his two sons (Jamnadas and Jayantilal) and two

daughters (Kasturben and Lalita – appellants herein).

Purshottam Manji Thakrar died on 30.11.1984. His wife had

predeceased him. Jamnadas died leaving behind his wife, Jasumati

(Respondent No.3) and two daughters, Pragna and Bina (Respondent Nos.1

and 2 respectively). Jayantilal died issueless. He was a divorcee. He

purported to have executed two Wills; one on 31.1.1995 propounded by the

appellant and the other on 18.6.1995 propounded by respondents.

Kasturben died on 19.12.1995.

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4.Respondents filed an application for grant of probate of the Will

dated 18.6.1995. On the other hand, appellant filed an application for grant

of probate in respect of the Will dated 31.1.1995.

The learned District Judge granted probate in respect of the Will

dated 18.6.1995 propounded by the respondents and dismissed the

application for grant of probate in respect of the Will dated 31.1.1995

executed by Jayantilal.

5.Two appeals were preferred thereagainst. By reason of the impugned

judgment, the High Court dismissed the said appeals.

Although all the three aforesaid Wills, i.e., one dated 15.4.1978

executed by Purshottam Manji Thakrar in favour of the respondents, as also

two Wills executed by Jayantilal dated 31.1.1995 and 18.6.1995 were in

question, this Court by an order dated 2.11.2006, issued a limited notice

directing :

“In view of the decision of this Court in Janki

Narayan Bhoir v. Narayan Namdeo Kadam, (2003

(2) SCC 91), issue notice only on the question as

to whether the Will dated 18.6.1995 was legally

proved.”

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6.Mr. Jay Savla, learned counsel appearing on behalf of appellant,

would submit that a Will, having regard to the provisions contained in

Section 63(c) of the Indian Succession Act, is required to be attested by two

or more witnesses and furthermore, although in terms of Section 68 of the

Indian Evidence Act it is permissible to examine one witness, who must

testify to prove valid execution and attestation of the Will, i.e., both the

witnesses have signed in the presence of the testator or the testator has

either signed in presence of one or acknowledged his signature before the

other. It was contended that as in this case, the said legal requirements had

not been complied with, the Will in question cannot be said to have been

proved. Strong reliance in this behalf has been placed on Janki Narayan

Bhoir (supra) and Benga Behera & Anr. v. Braja Kishore Nanda & Ors.

[2007 (7) SCALE 228].

It was urged that a large number of suspicious circumstances

surrounding the execution of the Will by the testator having not been

explained by respondent, the Will cannot be said to have been legally

proved. These, according to the learned counsel, are:

“Respondent Nos.1 and 2 had filed suit for

partition claiming 1/3

rd

share on the basis of the

Will of grand father Shri Parshottam Kataria dated

15

th

April, 1978 and in the alternative under

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succession claiming 1/9

th

share against deceased

Jayantilal Kataria being Suit No.119/1989.

Testator had opposed the suit amongst other

grounds and in the written statement of the

testator, it was averred that Parshottam Kataria had

in fact made last Will dated 19

th

November, 1983.

In the reply dated 10

th

January, 2006, to Public

Notice, no mention of Will.

In the said proceedings, on 1

st

January, 1996, in

the application for deletion of deceased,

Respondents categorically averred that such

Jayantilal Kataria had not executed any Will.

Further an application dated 4

th

March, 1996 was

filed for impleadment in the proceeding filed by

deceased Testator against the tenant for eviction, it

was reiterated that Jayantilal Kataria had not left

any Will.

In the examination-in-chief, in the Petition for

probate under Section 276 filed on 8

th

July, 1996,

no explanation about the statement made in the

earlier proceedings to the effect that Testator had

died intestate.

By the alleged Will, the entire property has been

bequeathed to Respondents who are not Class-I

legal heirs to the exclusion of Petitioner, Smt.

Lalitaben Popat.

Deceased is resident of Rajkot whereas

Respondents were residing at Mumbai.

Petitioner being younger sister was nursing the

deceased and the relationship was very cordial.”

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It was contended that the District Judge as also the High Court having

failed and/or neglected to deal therewith, the impugned judgment cannot be

sustained. Strong reliance in this behalf has been placed on Ram Piari v.

Bhagwant & Ors. [(1990) 1 SCR 813]; Smt. Guro v. Atma Singh & Ors.

[(1992) 2 SCR 30]; Rambai Padmakar Patil (dead) v. Rukminibai Vishnu

Vekhande & Ors. [(2003) 8 SCC 537]; B. Venkatamjni v. Ayodhya Ram

Singh & Ors. [2006 (11) SCALE 148].

7.Mr. Adarsh Priyadarshi, learned counsel appearing on behalf of

respondent, on the other hand, would contend:

(a)Law does not require that a Will must be proved by two attesting

witnesses.

(b)In ascertaining the genuineness of the Will, the only requirement

being that the Court must satisfy its conscience and as in this case all

the courts have arrived at a concurrent finding of fact, this Court

should not exercise its discretionary jurisdiction under Article 136 of

the Constitution of India.

(c)Section 63(c) of the Indian Succession Act does not envisage direct

proof of execution of the Will.

8.The law in regard to proof of a valid Will is now well settled.

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It has to be proved not only by proving the signature of the executor

but it should be found to be free from any suspicious circumstances.

Section 63(c) of the Indian Succession Act reads as under :

“Section 63.—Execution of unprivileged Wills

—Every testator, not being a soldier employed in

an expedition or engaged in actual warfare,

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[or

an airman so employed or engaged,] or a mariner

at sea, shall execute his Will according to the

following rules :-

(a) and (b)…

(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 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.”

9.Indisputably, the said provision is mandatory in nature. A Will is

required to be attested by two or more witnesses.

Section 68 of the Evidence Act provides that the propounder must

prove execution and attestation of the Will by examining at least one of the

attesting witnesses.

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What is meant by the word ‘attestation’ is defined in Section 3 of the

Transfer of Property Act which reads as under :

Section 3.—Interpretation-clause—In this Act,

unless there is something repugnant in the subject

or context,-

XXX XXX XXX

"attested", in relation to an instrument, means and

shall be deemed always to have meant attested by

two or more witnesses each of whom has seen the

executant sign or affix his mark to the instrument,

or has seen some other person sign the instrument

in the presence and by the direction of the

executant, or has received from the executant a

personal acknowledgment of his signature or

mark, or of the signature of such other person, and

each of whom has signed the instrument in the

presence of the executant; but it shall not be

necessary that more than one of such witnesses

shall have been present at the same time, and no

particular form of attestation shall be necessary.”

10.Indisputably, the Will in question was marked as Exhibit 44. It bears

the signature of one Mavaji Viraji in Gujrati language and one Ranjit Singh

in English. Respondents, in order to prove execution of the Will, examined

Ranjit Singh alone. He was working in the agricultural Department of the

State at Gondal in the District of Rajkot. On the date of execution of the

Will, he was at his place of work. The testator was a resident of Jetpur. The

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Will admittedly was executed at Jetpur. Attestation of the Will admittedly

had taken place only at Jetpur.

Ranjit Singh, in his deposition stated :

“I know Janyatilal Purshottam Kataria. I also

know Purshottam Manaji Kataria and Jamandas

Purshottam Kataria. Jamnadas and Jayantilal are

sons of Purshottam Majaji. I have relation with

whole family for the last many years. I used to go

to ask for the health, if any member is sick.

The said Will mark 42/1 is the original Will

executed by Jayantilal Purshottam Kataria.

Original Will is executed upon the stamp paper

worth of Rs.10/-. The name of Jayantilal

Purshotam is upon the stamp paper as purchaser. I

am shown the signature of Jayantilal Purshottam

in the Will. I identify that this signature is of

Jayantilal Purshottam himself. This signature is

put in my presence, the signature of two witnesses

are also there in the Will dated 18.5.95. From

those one signature is of Mavnjibhai Virjibhai and

other is of myself i.e. Ranjit Singh. I produced the

said Will which is produced at exhibit-44.

Jayantilal had called me at the time of Will which

is of movable and immoveable properties. At the

time of the execution of this Will, Jayantibhai was

conscious and well position. He executed this

Will by his wish, not under the pressure of any.”

In cross-examination, he stated:

“I do Government service in Gondal. I do my

service in Agriculture department. I am at Gondal

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for the last 4 years. On 9.5.1996, I was at Gondal.

It is not true that my signature is obtained in

Gondal. When I went to Jetpur, I have signed in

the Will at Jetpur. On that day I went Jetpur after

putting my report for leave. I was called at Jetpur.

First I was informed therefore I went prior to the

week of the execution of Will. I was informed. I

directly went to Jayantibhai. It is true that this

original Will was already prepared in that Will I

signed. Jayantibhai had also signed in my

presence, when I signed. At that time we two and

one old man was there to whom I know by face.

Rest I do not know.”

11.The Will was in Gujarati. It was typed one. Who scribed the Will is

not known. Who typed the same is also not known. Signature of Ranjit

Singh is at Serial No.2 of the column of the witnesses. Paragraph 8 of the

Will makes an interesting reading which is reproduced hereinbelow :

“At Jetpur my trusted Vaisnav friend Mavaji

Virjabhai whose support I have received in my

religious life, I have trusted upon him. Therefore,

his signature as witness is done and he has to see

that my heirs may receive my property according

to Will.”

This Will or ‘vasihat nama’ is my last Will and I

have not executed any Will or ‘vasihat nama’

except this. If it is, it is to be considered as

cancelled. In this way if my life may complete,

this Will be considered the last Will.

I have executed this Will or vasihat nama with my

pleasure, keeping the life permanent, good health,

after realize and thinking, according to the voice

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of my soul and I have signed before two witnesses.

For that I have signed under this and both

witnesses have put their own signature.”

12.A perusal of the Will shows that the said Mavajibhai Virajibhai was

made an executor of the Will. The Will, however, has been produced from

the custody of Ranjit Singh. How he came in custody of Will has not been

explained. The recital that no other Will had been executed appears to have

been made as if the executor was not sure thereabout. The Will is supposed

to have been executed in presence of both the witnesses. A declaration is

made by the testator that he had signed before both the witnesses and only

before him both the witnesses had put their signatures.

Ranjit Singh does not say so. He was alone with the testator.

According to him, the testator had already put his signature. Jayantilal, the

testator of the said Will had signed in his presence. It is, thus, evident that

at that point of time Mavajibhai Virajibhai had not put his signature on the

Will as an attesting witness. Still his name appears at Serial No.1. An old

man only according to the said witness was present when the testator

executed the Will. Who was that old man is not known. Certainly he is not

Mavajibhai Virajibhai.

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It has, therefore, not been proved that both the attesting witnesses

either attested the Will in presence of each other or the testator had

acknowledged his signature in presence of the other witnesses.

13.The learned counsel, however, has drawn our attention to the

statement made in the counter affidavit that the said Mavajibhai Virajibhai

had expired on 2.5.1996. It was, however, very fairly stated that the said

fact had not been brought on record before the courts below. We, therefore,

are not in a position to accept the said contention raised before us for the

first time.

14.Mr. Priyadarshi has drawn our attention to a decision of this Court in

Joyce Primrose Prestor (Mrs) (Nee Vas) v. Vera Marie Vas (Ms) & Ors.

[(1996) 9 SCC 324]. In that case, the Will was a ‘Holograph Will’. The

writings of the testatrix was proved.

The question which arose for consideration therein before this Court

was as to whether the Will was surrounded by suspicious circumstances.

This Court noticed a passage from the ‘Laws of Will in India and

Pakistan, by Mantha Ramamurthi, at pages 81-82, which reads as under :

“If a will appears on the face of it to have been

duly executed and attested in accordance with the

requirements of the Act, the maxim "omni a proe

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sumuntur rite esse acta," applies, unless it is

clearly proved by the attesting witnesses that the

Will is not in fact duly executed. The Court of

Probate has long been accustomed to give great

weight to the presumption of due execution arising

from the regularity ex facie of the testamentary

paper produced where no suspicion of fraud has

occurred.

The maxim "omni a Proe sumuntur rite esse acta"

is an expression in a short form, of a reasonable

probability, and of the propriety in point of law on

acting on such probability. The maxim expresses

an inference which may reasonably be drawn

when an intention to do some formal act is

established. In Blake v. Knight Sir Herbert Jenner

Fusty observed Is it absolutely necessary to have

positive affirmative testimony by the subscribed

witnesses that the Will was actually signed in their

presence, or actually acknowledged in their

presence? Is it absolutely necessary, under all

circumstances that the witnesses should concur in

stating that these acts took place? Or is it

absolutely necessary, where the witnesses will not

swear positively, that the Court should pronounce

against the validity of the will. I think these are not

absolute requisites to the validity of the will.

Consequently, "where the evidence of attesting

witnesses is vague or doubtful or even conflicting

the Court may take into consideration the

circumstances of the case and judge from them

collectively whether the requirements of the

Statute were complied with; in other words the

Court may, on consideration of other evidence or

of the whole circumstances of the case, come to

the conclusion that their recollection is at fault,

that their evidence is of a suspicious character, or

that they were willfully misleading the Court, and

accordingly disregard their testimony and

pronounce in favour of the will.”

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(Emphasis supplied)

This Court held that a greater degree of presumption arises in the case

of ‘holograph Wills’ The said finding was arrived at as the writing of the

Will and signature of the testator were admitted; there was also due and

proper attestation in accordance with the relevant statutory provisions. This

Court held that no suspicious circumstances appeared on the face of the

instrument and it was found to be moderate and rational.

Whether a Will is surrounded by suspicious circumstances or not is

essentially a question of fact.

We have noticed hereinbefore that there was a large number of

suspicious circumstances in the instant case. We have also pointed out that

suspicious circumstances appear on the face of the Will.

Inferences of suspicious circumstances must be drawn having regard

to the evidence of Ranjit Singh.

Even the statutory requirements for proof of the Will have not been

complied with. It is a trite law that execution of a Will must be held to have

been proved not only when the statutory requirements for proving the Will

are satisfied but the Will is also found to be ordinarily free from suspicious

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circumstances. When such evidences are brought on record, the Court may

take aid of the presumptive evidences also.

15.Reliance has also been placed by Mr. Priyadarshi on a decision of this

Court in Ramabai Padmakar Patil (Dead) through LRs. & Ors. v.

Rukminibai Vishnu Vekhande & Ors. [(2003) 8 SCC 537]. In that case

itself, this Court held :

“Before we advert to the submissions made by the

learned counsel for the parties, it will be useful to

briefly notice the legal position regarding

acceptance and proof of a Will. Section 63 of the

Indian Succession Act deals with execution of

unprivileged Wills. It lays down that 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. It further lays down

that the Will shall be attested by two or more

witnesses, each of whom has seen the testator

signing or affixing his mark to the Will or has seen

some other person sign the Will, in the presence

and on the direction of the testator and each of the

witnesses shall sign the Will in the presence of the

testator. Section 68 of the Evidence Act mandates

examination of one attesting witness in proof of a

Will, whether registered or not.”

It was furthermore held :

“In P.P.K. Gopalan Nambiar v. P.P.K.

Balakrishnan Nambiar it has been held that it is

the duty of the propounder of the Will to remove

15

all the suspected features, but there must be real,

germane and valid suspicious features and not

fantasy of the doubting mind.”

The said decision, therefore, is of no assistance to us.

16.The question which, thus, arises for consideration is as to whether

execution of the Will has been proved. In our opinion, it has not been.

The requirements for proving a Will have been laid down in a large

number of decisions. We would, however, refer to only a few of them.

In Janki Narayan Bhoir (supra), while dealing with the question

elaborately, this Court held :

“8. To say will has been duly executed the

requirement mentioned in Clauses (a), (b) and (c)

of Section 63 of the Succession Act are to be

complied with i.e., (a) the testator has to sign or

affix his mark to the will, or it has got to be signed

by some other person in his presence and by his

direction; (b) that the signature or mark of the

testator, or the signature of the person signing at

his direction, has to appear at a place form which

it could appear that by that mark or signature the

document is intended to have effect as a will; (c)

the most important point with which we are

presently concerned in this appeal, is that the will

has to be attested by two or more witnesses and

each of these witnesses must have seen the testator

sign or affix his mark to the Will, or must have

seen some other person sign the Will in the

presence and by the direction of the testator, or

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must have received from the testator a personal

acknowledgement of signature or mark, or of the

signature of such other person, and each of the

witnesses has to sign the Will in the presence of

the testator.

9. It is thus clear that one of the requirements of

due execution of will is its attestation by two or

more witnesses which is mandatory.

10. Section 68 of the Evidence Act speaks of as to

now a document required by law to be attested can

be proved. According to the said Section, a

document required by law to be attested 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 an evidence. It flows from this Section

that if there be an attesting witness alive capable

of giving evidence and subject to the process of

the Court, has to be necessarily examined before

the document required by law to be attested can be

used in an evidence. On a combined reading of

Section 63 of the Succession Act with Section 68

of the Evidence Act, it appears that a person

propounding the will has got to prove that the will

was duly and validly executed. That cannot be

done by simply proving that the signature on the

will was that of the testator but must also prove

that attestations were also made properly as

required by Clause (c) of Section 63 of the

Succession Act. It is true that Section 68 of

Evidence Act does not say that both or all the

attesting witnesses must be examined. But at least

one attesting witness has to be called for proving

due execution of the Will as envisaged in Section

63. Although Section 63 of the Succession Act

requires that a will has to be attested at least by

two witnesses, Section 68 of the Evidence Act

provides that a document, which is required by

17

law to be attested, shall not be used as evidence

until one attesting witness at least has been

examined for the purpose of proving its due

execution if such witness is alive and capable of

giving evidence and subject to the process of the

Court. In a way, Section 68 gives a concession to

those who want to prove and establish a will in a

Court of law by examining at least one attesting

witness even though will has to be attested at least

by two witnesses mandatorily under Section 63 of

the Succession Act. But what is significant and to

be noted is that that one attesting witness

examined should be in a position to prove the

execution of a will. to put in other words, if one

attesting witness can prove execution of the will in

terms of Clause (c) of Section 63, viz., attestation

by two attesting witnesses in the manner

contemplated therein, the examination of other

attesting witness can be dispensed with. The one

attesting witness examined, in his evidence has to

satisfy the attestation of a will by him and the

other attesting witness in order to prove there was

due execution of the will. If the attesting witness

examined besides his attestation does not, in his

evidence, satisfy the requirements of attention of

the will by other witness also it falls short of

attestation of will at least by two witnesses for the

simple reason that the execution of the will does

not merely mean the signing of it by the testator

but it means fulfilling and proof of all the

formalities required under Section 63 of the

Succession Act. Where one attesting witness

examined to prove the will under Section 68 of the

Evidence Act fails to prove the due execution of

the will then the other available attesting witness

has to be called to supplement his evidence to

make it complete in all respects. Where one

attesting witness is examined and he fails to prove

the attestation of the will by the other witness

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there will be deficiency in meeting the mandatory

requirements of Section 68 of the Evidence Act.”

(Emphasis supplied)

Following the said decision, as also the other decisions in Benga

Behera (Supra), this Court held:

“21. It was also not necessary for the appellants to

confront him with his signature in the Xeroxed

copy of the Will, inasmuch as the same had not

appeared in the certified copy. Execution of a Will

must conform to the requirement of Section 63 of

the Succession Act, in terms whereof a Will must

be attested by two or more witnesses. Execution of

a Will, therefore, can only be proved in terms of

clause (c) of Section 63 when at least one of the

two witnesses proves the attestation. A Will is

required to be attested by two or more witnesses,

each of whom has seen the testator sign or affix

his mark to the Will. Section 68 of the Evidence

Act provides for the requirements for proof of

execution of the Will. In terms of said provision,

at least one attesting witness has to be examined to

prove execution of a Will.”

Yet again, recently in Anil Kak v. Kumari Sharada Raje & Ors.

[(2008) 6 SCALE 597], it was opined :

“40. Whereas execution of any other document

can be proved by proving the writings of the

document or the contents of it as also the

execution thereof, in the event there exists

suspicious circumstances the party seeking to

obtain probate and/ or letters of administration

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with a copy of the Will annexed must also adduce

evidence to the satisfaction of the court before it

can be accepted as genuine.

41. As an order granting probate is a judgment in

rem, the court must also satisfy its conscience

before it passes an order.

It may be true that deprivation of a due share by

the natural heir by itself may not be held to be a

suspicious circumstance but it is one of the factors

which is taken into consideration by the courts

before granting probate of a Will.

Unlike other documents, even animus attestandi is

a necessary ingredient for proving the attestation.”

In Babu Singh & Ors. v. Ram Sahai @ Ram Singh [2008 (7) SCALE

743], this Court, inter alia, referring to Apoline D’Souza v. John D’Souza

[(2007) 7 SCC 225] and B. Venkatamuni v. C.J. Ayodhya Ram Singh &

Ors. [(2006) 13 SCC 249] held that the question as to whether due

attestation has been established or not will depend upon the fact situation in

each case.

17.For the reasons aforementioned, the impugned judgment cannot be

sustained. It is set aside accordingly. The appeal is allowed. However, in

the facts and circumstances of this case, there shall be no order as to costs.

..………………………J.

[S.B. Sinha]

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..………………………J.

[Cyriac Joseph]

New Delhi;

December 19, 2008

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