Popat Vs. Pragnaben Jamnadas Kataria & Ors  INSC 2244 (19 December
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
S.B. Sinha, J.
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
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).
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
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.
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."
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:
Nos.1 and 2 had filed suit for partition claiming 1/3rd share on the basis of
the Will of grand father Shri Parshottam Kataria dated 15th April, 1978 and in
the alternative under 5 succession claiming 1/9th 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 19th
In the reply dated
10th January, 2006, to Public Notice, no mention of Will.
In the said
proceedings, on 1st January, 1996, in the application for deletion of deceased,
Respondents categorically averred that such Jayantilal Kataria had not executed
application dated 4th 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.
examination-in-chief, in the Petition for probate under Section 276 filed on
8th 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.
younger sister was nursing the deceased and the relationship was very
6 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].
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
law in regard to proof of a valid Will is now well settled.
7 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 :
63.--Execution of unprivileged Wills --Every testator, not being a soldier
employed in an expedition or engaged in actual warfare, 1 [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."
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.
8 What is meant by
the word `attestation' is defined in Section 3 of the Transfer of Property Act
which reads as under :
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."
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 9 Will admittedly was executed at
Jetpur. Attestation of the Will admittedly had taken place only at Jetpur.
Ranjit Singh, in his
deposition stated :
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
"I do Government
service in Gondal. I do my service in Agriculture department. I am at Gondal
10 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
Rest I do not
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 11 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."
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
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.
12 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.
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.
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
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 13 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.
"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."
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
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.
suspicious circumstances must be drawn having regard to the evidence of Ranjit
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 15 circumstances. When such
evidences are brought on record, the Court may take aid of the presumptive
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 :
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
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 16 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.
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 17 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
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 18 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 19 there will be deficiency in meeting the mandatory
requirements of Section 68 of the Evidence Act."
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 :
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 20 with a copy of the Will annexed must also
adduce evidence to the satisfaction of the court before it can be accepted as
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.
documents, even animus attestandi is a necessary ingredient for proving the
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.
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.