Rur Singh (D) Th. LRS.
& Ors. Vs. Bachan Kaur  INSC 303 (12 February 2009)
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
S.B. SINHA, J :
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 2 and decree dated
12.02.1996 passed by the Civil Judge (Junior Division), Mansa in Civil Suit No.
341 of 1983.
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.
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
3 The learned Trial
Judge in view of the rival contentions of the parties inter alia framed the
the suit property developed (sic for devolved upon) against heirs of Kehar
Singh as mentioned in para no. 4 of amended written statement?"
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.
herein preferred a second appeal thereagainst. A learned Single Judge of the
High Court formulated the following substantial question of law for
"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?"
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
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 5 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
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
Furthermore, as the
testator was living jointly with the legatees, their 6 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
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
(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.
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.
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.
learned Trial Judge as also the first Appellate Court also took into
consideration the fact that the villagers in great numbers were present at 8
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.
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
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 9 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
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.
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.
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.
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 11 witnesses has to sign the Will in the presence of the
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 12 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
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 :
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
[See also Lalitaben
Jayantilal Popat v. Pragnaben Jamnadas Kataria & Ors. 2009 (1) SCALE 328].
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 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.
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
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.
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.
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
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.
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 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
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.
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.
[Dr. Mukundakam Sharma]