REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   941             OF 2009 [Arising out of SLP (Civil) No. 6118 of 2007]

Rur Singh (D) Th. LRS. & Ors.      …Appellants

Versus

Bachan Kaur      …Respondent

J U D G M E N T  

S.B. SINHA, J :

1. Leave granted.

2. This appeal is directed against a judgment and order dated 11.07.2006

passed by a learned Single Judge of the Punjab and Haryana High Court

whereby and whereunder a judgment and order dated 18.11.1998 passed by

the  Additional  District  Judge,  Mansa  in  Civil  Appeal  No.  59  of  1996,

dismissing the appeal preferred by the respondent herein from a judgment

and decree dated 12.02.1996 passed by the Civil Judge (Junior Division),

Mansa in Civil Suit No. 341 of 1983.

3. The basic fact of the matter is not in dispute.

One Kehar Singh was the owner of the property.  The parties hereto

are his children.  He is said to have executed a Will on or about 14.05.1969

in terms whereof he bequeathed all the agricultural properties in favour of

his sons.  The said Will is said to have been scribed by the Sarpanch of the

village and attested by ten witnesses.  He expired on 5.10.1969.  Mutation in

respect of the properties situate in the village Lohgarh in favour of his sons

was allowed by an order dated 4.02.1970.  Allegedly, order of the mutation

in respect of the properties situated in the village Jhunir was passed in the

year 1979.

4. Respondent  herein filed  a suit  in  the Court  of  Civil  Judge  (Junior

Division), Mansa praying inter alia for a decree of possession contending

that  the  said  Kehar Singh died intestate.   Appellants,  on the other  hand,

claimed their right, title and interest in the suit property by reason of the

said Will executed by Kehar Singh.   

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The learned Trial Judge in view of the rival contentions of the parties

inter alia framed the following issues:

“1-C. Whether the suit property developed (sic for devolved  upon)  against  heirs  of  Kehar  Singh  as mentioned  in  para  no.  4  of  amended  written statement?”

5. The learned Trial  Judge,  keeping in  view the  order  of  mutation  in

respect of the properties in favour of the appellants herein which took place

in the year 1970, the validity whereof was not challenged, and on the basis

of  the  other  materials  brought  on  record,  held  the  said  Will  dated

14.05.1969  to  be genuine  and,  thus,  dismissed  the said  suit.   An appeal

preferred thereagainst by the respondent was also dismissed.

6. Respondent herein preferred a second appeal thereagainst.  A learned

Single  Judge  of  the  High  Court  formulated  the  following  substantial

question of law for consideration:

“Whether  in  the  facts  and  circumstances  of  the case, the Will allegedly executed by Kehar Singh was  free  from all  suspicious  circumstances  and whether the same conformed to the provisions of Section 63 of the Act?”

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7. The concurrent findings of the Trial Court as also the first Appellate

Court were reversed by the learned Single Judge of the High Court, stating:

(i) As mutation of the properties had been ordered on 28.08.1979 in

presence of the parties whereagainst no challenge was thrown, had

the Will  been in  existence in 1969,  the  same should have been

produced in the mutation proceedings.

(ii) The  Will  is  surrounded  by  suspicious  circumstances  as  all  the

beneficiaries had a role to play in execution thereof.

(iii) The Will has been scribed by Gurbachan Singh, Sarpanch in Urdu

although he had chosen to sign in English at more than one place.   

(iv) The  Will  although  was  stated  to  be  recorded  in  the  panchayat

register but the same was not produced.

As regards the question as to whether the Will has been proved in

terms of Section 63 of the Indian Succession Act, the High Court held:

“Section 63 of the Act lays down the manner in which  a  Will  is  to  be  executed.   The  Will  in question which is  Ex. D-1 dated 14.5.1969 is an unregistered Will.   A perusal  of the same shows

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that there is complete violation of Section 63 (c) of the Act.  Kehar Singh, who was the testator, died on  5.10.1969.   Cumulatively  taken  together,  all these factors cast a dark shadow on the execution of the Will.”

8. Mr.  Narender  Yadav,  learned  counsel  appearing  on  behalf  of  the

appellants, would submit that the High Court committed a serious error in

interfering with the concurrent findings of fact in exercise of its jurisdiction

under Section 100 of the Code of Civil Procedure.

The  learned  counsel  would  draw our  attention  to  the  fact  that  the

order of mutation was passed in the year 1970, as has been found by the

learned Trial Judge, and thus, the High Court committed a serious error in

opining that the order of mutation was passed in the year 1979.  

The learned counsel  would  further  submit  that  out  of  ten attesting

witnesses,  only one of  them being the beneficiary and nine others  being

independent  witnesses  and  the  Will  having  been  proved  by  three

independent  witnesses,  the  impugned  judgment  cannot  be  sustained.

Furthermore,  as  the  testator  was  living  jointly  with  the  legatees,  their

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presence  at  the  time  of  execution  of  the  Will  was  natural  and  not

uncommon.

The learned counsel would further submit that the witnesses having

proved  due  execution  of  the  Will  both  in  terms of  Section  63(c)  of  the

Indian Succession Act and Section 68 of the Indian Evidence Act, the High

Court must have committed a serious error in opining contra.

9. Mr.  Vishal  Mahajan,  learned  counsel  appearing  on  behalf  of  the

respondent, on the other hand, would contend:

(i) Kehar Singh being 80 years old and having executed the Will four

months prior  to  his  death,  it  must  be held  to  be surrounded  by

suspicious circumstances.   

(ii) Had the Will been genuine, the same would have been produced

before the Revenue Court in the mutation proceeding.

(iii) The village panchayat record wherein the factum of the execution

of the Will has been registered having not been produced, the Will

cannot be said to be genuine.

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10. The High Court while exercising its jurisdiction under Section 100 of

the Code of Civil Procedure exercises a limited jurisdiction.  It may interfere

with a finding of fact arrived at by the Trial Court and/ or the first Appellate

Court  only  in  the  event,  a  substantial  question  of  law  arises  for  its

consideration.

11. The High Court  framed only one substantial  question  of  law, viz.,

whether the Will had been duly proved and/ or was otherwise genuine.  

It is essentially a question of fact.  The learned Trial Judge as also the

first  Appellate Court  in opining that the Will  was genuine and free from

suspicious  circumstances  inter  alia  took  into  consideration  the  existing

materials on record, viz., the parties ordinarily do not want their agricultural

land to go out from the family and in that view of the matter if Kehar Singh

had  bequeathed  his  agricultural  land  only  in  favour  of   his  sons  and

excluding  the  daughters  from inheritance,  no  exception  thereto  could  be

taken.

12. The learned Trial  Judge as also the first  Appellate Court  also took

into consideration the fact that the villagers in great numbers were present at

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the time of execution of the Will and in fact Sarpanch himself scribed the

same.  Furthermore, the fact that at least in respect of the properties situate

in village Lohgarh the order of mutation was passed in favour of the sons in

the  year  1970  and  the  same  was  not  challenged,  also  was  taken  into

consideration that the Will must be held to be genuine.   

13. As regards proof of Will, as statutorily required in terms of Section

63 (c) of the Indian Succession Act, it was categorically held by the learned

first Appellate Court:

“…The  execution  of  the  Will  Ex.  D-1,  dated 14.5.1969,  was  proved  by  Rur  Singh,  DW-1, Kapoor  Singh,  DW-2,  and  Hema  Ram,  DW-3, attesting witnesses thereof.  Their evidence goes to prove  that  the  Will  was  scribed  by  Gurbachan Singh, Sarpanch, at  the instance of Kehar Singh. After scribing the Will, the contents thereof were read  over  and  explained  to  Kehar  Singh,  who admitted  the  same  to  be  correct,  and  thumb marked  the  same,  in  the presence  of  Rur Singh, DW-1 & Kapoor  Singh  DW-2,  Hem Raj  DW-3, Prem Chand,  Gurbachan  Singh and Piara  Singh, attesting witnesses.  It is further proved from the evidence  of  Rur  Singh,  DW-1,  Kapoor  Singh, DW-2 and Hema Ram (DW-3) that Kehar Singh thumb marked the Will, in token of its correctness, in  their  presence  and  in  the  presence  of  other witnesses, whereas they signed and thumb marked the same, in the presence of the testator.  It is also proved from the evidence of these witnesses, that Kehar Singh, was in sound disposing mind, at the

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time of execution of the Will dated 14.5.1969 Ex. D-1.   In  fact,  the  perusal  of  the  Will,  Ex.  D-1, reveals that it was executed by Kehar Singh, in the presence of the entire Panchayat of the village.  No doubt,  Rur  Singh,  DW-1,  is  the  son  of  Kehar Singh,  and  is  one  of  the  beneficiaries,  residing with  him,  in  the  same  house  and  serving  him throughout his lifetime.  That, however, does not make  his  evidence  unbelievable.   Since,  he  was residing, in the same house, with Kehar Singh, and was serving him, his  presence at  the time of the execution  of  the  Will  was  natural  and probable, and  that  was  why  he  signed  the  same,  as  an attesting witness…”   

As Bachan Kaur, respondent herein was comfortably married, if the

testator  thought  it  proper  to  exclude  her  from  his  agricultural  property

bequeathing the same in favour of his sons, as has been stated in the Will,

no exception thereto could be taken.   

14. The High Court essentially entered into the arena of appreciation of

evidence.  It interfered with the concurrent findings of fact arrived at by the

courts below.

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Execution of a Will is required to be proved in terms of the provisions

of Section 63(c) of the Indian Succession Act and Section 68 of the Indian

Evidence Act.   

The  statutory  requirements  to  prove  a  Will  in  terms  of  the

aforementioned  provisions  have  been  laid  down  in  a  large  number  of

decisions.  We may notice a few of them.

In Janki Narayan Bhoir v.  Narayan Namdeo Kadam, [(2003) 2 SCC

91], 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 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

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witnesses has to sign the Will  in the presence of the testator.”

As regards compliance of the provision of Section 68 of the Evidence

Act, it was opined :-

“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

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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  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 & Anr. v. Braja Kishore Nanda & Ors. [2007 (7) SCALE 228], this

Court held:

“…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, however, can only be proved in terms of Section 68 of the Indian Evidence Act. 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 :

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“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 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.”

[See also Lalitaben Jayantilal Popat v. Pragnaben Jamnadas Kataria &

Ors. 2009 (1) SCALE 328].   

15. The  Will  was  scribed  in  the  house  of  the  testator.   From  the

deposition  of  the  witnesses,  the  learned  Trial  Judge  as  also  the  first

Appellate Court came to the conclusion that he was in a sound disposing

mind.  The Will was scribed by the Sarpanch.  As many as ten witnesses

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attested the Will; nine of them  being independent witnesses.  Execution of

the Will as also attestation thereof by the witnesses was concluded in one

go.   The testator  and all  the  witnesses  were  present  throughout  the  said

transaction.  It is in the aforementioned situation, the learned first Appellate

Court  had  arrived  at  a  categorical  finding  of  fact  that  the  statutory

requirements had been complied with as more than one witness had attested

the execution of the Will  not  only in presence of the testator but  also in

presence of each other.

16. The  High  Court  unfortunately  even  did  not  choose  to  assign  any

reason in support of its conclusion that the statutory requirements contained

in Section 63(c) of the Indian Succession Act had not been complied with.

The oral evidence adduced on behalf of the parties had not been discussed

far less analysed.   How and in what manner the statutory requirements had

not been complied with was not stated.

17. The  High  Court  omitted  to  notice  that  at  least  in  respect  of  the

properties situate in one village the order of mutation was passed in the year

1970, i.e., immediately after the execution of the Will.

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The High Court furthermore failed to take into consideration that at

least in regard to the said order of mutation, the respondent did not carry the

matter to the appellate court or question the validity thereof by filing a suit.

18. The suit was filed in the year 1983.  It was also not the case of the

respondent  that  she  had  been  getting  share  of  the  yields  from the  said

agricultural properties.

Only  because  one  of  the  beneficiaries  attested  the  Will,  the  same

would not mean that he had taken active part in it.  In any event, the learned

Trial Judge as  also the first  Appellate Court  found sufficient  explanation

therefor holding that as the Will was executed in testator’s house and he had

been living jointly with his sons, their presence in the house was natural.

19. We have  noticed  hereinbefore  that  the  Will  was  attested  by  nine

independent persons.  Three of them in fact had been examined.  The High

Court while holding that a doubt is cast on its validity by reason of active

participation of one of the sons, failed to notice that nine other independent

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witnesses attested the Will.  We, therefore, fail to attach much importance to

the fact that although Gurbachan Singh, Sarpanch scribed the Will in Urdu,

he at more than one place signed in English.  In a village, a person may be

more proficient in the vernacular language than English although he may be

able to sign his name in English.

20. If  the  Will  was  otherwise  proved  to  be  genuine  and  the  statutory

requirements  therefor  were  satisfied,  in  our  opinion,  only  because  the

panchayat register was not produced, the same by itself would not lead to

the  conclusion  that  the  Will  would  be  held  to  have  not  been  executed,

particularly when two courts competent to arrive at findings of fact held it

otherwise.

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

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

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

………………………….J. [S.B. Sinha]

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..…………………………J.     [Dr. Mukundakam Sharma]

New Delhi; February 12, 2009  

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