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 4th 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 1/5th 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 1/5th 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 1/5th  

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 1/8th 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 1/4th plus 1/32nd i.e. 9/32nd 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 9/32nd 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  

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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  

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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  

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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  

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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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