Supreme Court Holds Attestation Requirement in Section 63(c) Is Disjunctive; Restores Lower Appellate Finding Upholding Will

A bench of Justices C.T. Ravikumar and Sanjay Karol heard an appeal arising from competing claims to a one‑fourth share in agricultural land and examined whether the phrase “by the direction of the testator” in Section 63(c) of the Indian Succession Act, 1925 required a strict or liberal construction and whether the Will in question was duly proved.

The Court allowed the civil appeal, set aside the Punjab and Haryana High Court judgment and restored the decision of the Lower Appellate Court which had upheld the Will and consequent transfers. The Court held that the language of Section 63(c) was disjunctive and that proof that an attesting witness saw the testator sign or affix his mark satisfied the statutory requirement; the qualifier “direction of the testator” applied only where a witness saw some other person sign the Will. The Court, in its reasoning, observed: “The language of Section 63(c) of the Act uses the word ‘OR’. It states that each Will shall be attested by two or more witnesses who have 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… That being the case, there is no reason why the ‘or’ employed therein, should be read as ‘and’… the ordinary, grammatical meaning displayed by the words of the statute should be given effect to unless the same leads to ambiguity, uncertainty or absurdity. None of these requirements… are present.” The Court concluded that the attestation evidence before it met Section 63(c) and therefore the Will and subsequent sale deeds were valid.

Background

The dispute concerned a Will dated 7 November 2005 executed by Sanjhi Ram, who died on 8 November 2005. The testator owned a one‑fourth share (10 canals 1 marla) in land in Village Umarpura, Gurdaspur. The testator resided with his nephew Gopal Krishan, who was named beneficiary. Gopal Krishan transferred the inherited share to his sons and those sons executed a further sale of the property in February 2006. Respondents (plaintiffs in the trial) filed Suit No. 282 of 2006 seeking declaration that they were owners of the 1/4th share, that the Will of 7 November 2005 was “forged and fabricated”, and that subsequent mutation and sale were illegal.

The trial court found the Will suspicious on account of spacing and alleged irregularities in the page and attestation, and it held the Will and mutation bad in law. On first appeal, the Additional District Judge (Fast Track Court) set aside the trial decree, accepting the view that spacing variations and the testator’s illness did not alone vitiate the Will and that there was no evidence of impaired mental faculties. The High Court in RSA No. 1935 of 2015 reversed that decision: it found “glaring illegality and perversity” in ignoring reduced spacing, and stressed that an attesting witness (DW‑1, Janak Raj) had not stated that he appended his thumb impression “upon the direction of the Testator,” relying on precedents including Janki Narayan Bhoir and Kanwaljit Kaur. DW‑1 had deposed: “Sh. Sanjhi Ram … appended his thumb impression in my presence and as well as in the presence of other attesting witness Sh. Tarsem Lal and thereafter I and other attesting witness put my thumb impression and signature respectively.”

Before the Supreme Court the central question was statutory interpretation of Section 63(c) and whether the High Court was correct to require the word “or” to be read as “and.” The Court examined the statutory text and precedent, including Pankajakshi (Constitution Bench) and recent authorities on proving wills, and observed that the disjunctive construction permitted compliance by evidence that a witness saw the testator sign or affix his mark. Applying that principle to the record, the Court held that the attestation evidence satisfied Section 63(c). The Supreme Court allowed the appeal, set aside the High Court judgment, restored the first appellate judgment, and held: “Consequently, the Will of Sanjhi Ram is valid and so are the subsequent Sale Deeds executed by Gopal Krishan.” Pending applications stood disposed of.

Case Details: Case No.: Civil Appeal No. 13192 of 2024 (Arising out of SLP(C) No.25645 of 2018) Case Title: Gopal Krishan & Ors. v. Daulat Ram & Ors. Appearances: For the Petitioner(s): [Advocates not indicated in the reported judgment] For the Respondent(s): [Advocates not indicated in the reported judgment]