1. Property succession dispute involving a contested will and an arbitration award — proceedings under the U.P. Encumbered Estates Act and a title suit. (Para 1 , 2 , 3 )
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1955 Supreme(SC) 4
SUPREME COURT OF INDIA
N.H.Bhagwati : S.R.Dass : Syed Jafar Imam
Girja Datt Singh
Versus
Gangotri Datt Singh
Case No. : 194 , 195 of 1953
Date of Decision : 1/25/55
Advocates:
H.D.SRIVASTAVA, MAHABIR PRASAD, RAJENDER NARAIN, S.P.Varma
H.D.SRIVASTAVA, MAHABIR PRASAD, RAJENDER NARAIN, S.P.Varma
A will is not proved to be duly executed if the attesting witnesses' credibility is compromised by falsehoods regarding the circumstances of execution, rendering their testimony on the actual act of attestation unreliable. Identification signatures for registration do not constitute attestation animo attestandi.
Headnote:(A) Indian Succession Act, 1925 - Section 63 - Attestation of Will - Requirement that witnesses must see the testator sign or receive personal acknowledgment and sign in the presence of the testator. (Para 14)
(B) Indian Evidence Act, 1872 - Section 68 - Proof of execution of documents - Requirement to call at least one attesting witness to prove the execution of a will. (Para 15)
(C) Credibility of Witnesses - Where attesting witnesses are found to be untruthful regarding material facts such as the venue of execution, their testimony regarding the actual act of attestation may be deemed unreliable, failing to prove the due execution of the will. (Para 14)
Facts of the case:
A dispute arose over the inheritance of a share in the property of a deceased person. One party claimed title based on a will, while the other relied on an arbitration award. The validity of the will was challenged on the grounds of improper execution and attestation. Evidence revealed discrepancies in the ink used for the will and a contemporaneous deed of waqf, as well as contradictions regarding the location where the documents were signed.
Findings of Court:
The court found that the attesting witnesses were not truthful about the location of the execution of the will. Consequently, their testimony regarding the actual attestation process—specifically whether they saw the testator sign and whether they signed in the testator's presence—could not be relied upon. The signatures of identifying witnesses at the registration office did not constitute attestation animo attestandi.
Issues: Whether the will was duly executed and attested in accordance with the requirements of Section 63 of the Indian Succession Act.
Ratio Decidendi: For a will to be validly attested, it must be proven that the witnesses saw the testator sign or received acknowledgment and signed in the testator's presence. If the witnesses' credibility is severely compromised by proven falsehoods regarding the circumstances of execution, their oral testimony cannot sustain the proof of due attestation. Furthermore, identification signatures for registration purposes do not satisfy the legal requirement of attestation unless made with the intention to attest.
Result: Appeals allowed.
Legal Category Hierarchy
- civil law
- practice and procedure
- administrative law
Table of Contents
2. Dispute over the due execution and attestation of a will — whether an arbitration award constitutes a binding family settlement. (Para 3 , 7 )
3. Material contradictions in witness testimony and ink discrepancies regarding the venue of execution render the attesting witnesses unreliable for proving the will's execution. (Para 12 , 13 , 14 )
4. Proof of a will requires reliable testimony that witnesses saw the testator sign and signed in the testator's presence per Section 63, Indian Succession Act. (Para 14 )
5. Appeals allowed — will held not duly executed and attested — objections in the Encumbered Estates case and the title suit dismissed. (Para 16 )
6. What are the requirements for the due attestation of a will under Section 63 of the Indian Succession Act?
A will must be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark, or received a personal acknowledgment of the signature, and each witness must sign the will in the presence of the testator. (Para 14 )
7. How does the credibility of attesting witnesses affect the proof of a will?
If attesting witnesses are demonstrated to have no regard for truth regarding material facts, such as the venue of execution, their oral testimony cannot be relied upon to prove that the testator signed the will in their presence. (Para 12 , 13 , 14 )
8. Can the signatures of identifiers before a Sub-Registrar be treated as attestation of a will?
No. Signatures appended to a registration endorsement by identifiers are not made animo attestandi. Under Section 68 of the Indian Evidence Act, actual attesting witnesses must be called to prove the due execution and attestation of a will. (Para 15 )
N.H.BHAGWATI, J.
(1) THESE two appeals by special leave arise out of two separate proceedings, one under the U. P. Encumbered Estates Act, E. E. Act Case No. 11 of 1936 and the other a title suit, being Regular Suit No. 71 of 1938 in the court of the Civil Judge, Gonda in relation to a 10 annas share in the property left by one Bhaiya Baleshwar Datt Singh hereinafter referred to as the deceased.
(2) THE deceased died on 15/5/1933 leaving him surviving Bhaiya Girja Datt Singh, hereinafter referred to as Girja, the original Appellant, as his nearest collateral and heir. Bhaiya Gangotri Datt Singh, hereinafter referred to as Gangotri, was a remoter heir but claimed to succeed to the estate of the deceased under the terms of a will alleged to have been made and published by the deceased on 17/3/1928. Girja filed 29 applications for mutation of his name in place of that of the deceased in the Revenue courts in respect of the properties left by the deceased. Gangotri contested these applications on the basis of the said alleged will. All these cases were consolidated and the case with respect to the village Nagwa was treated as the main case. On 14/11/1933 three applications were made to the Revenue court for reference to arbitration of the disputes between Girja and Gangotri: (1) Application Ex. 58 by Gangotri under S. 203. U. P. Land Revenue Act (2) Application Ex. 57 by Girja under S. 203 of the U. P. Land Revenue Act and (3) Joint application Ex. 59 by Girja and Gangotri. stating that they had appointed Bhaiya Raghuraj Singh and Bhaiya Lot Baksh Singh, Taluqdars of Majhgawan as arbitrators and that whatever award would be given by the said arbitrators in respect of the property left by the deceased would be accepted by the parties and both the parties would abide by the same and that mutation might also be made according to the award. By an order dated 15/11/1933 the Revenue court referred the matters to the arbitration of the said arbitrators. Gangotri tried to resile from the reference but ultimately the Board of Revenue held him bound by the reference. The arbitrators published their award on 17/1/1934 in the terms following:
"WE decide that out of the entire property of Baleshwar Datt Singh, only ten annas share out of the entire villages be given to Bhaiya Girja Dutt Singh and six annas to Bhaiya Gangotri Datt Singh. The waqf property shall remain as such and Bhaiya Girja Datt Singh shall continue to be its mutwalli. The parties, their heirs and representatives shall be bound by the award generation after generation, The said award shall be binding on the parties in the revenue and civil courts."
GANGOTRI filed objections to the said award contending that the reference was not made by him by free consent, that the arbitrators had exceeded their powers and that the arbitrators were guilty of misconduct. By its judgment dated 18/1/1935 the Revenue court rejected the objections and ordered mutations in terms of the award. An appeal by Gangotri against this order and judgment was dismissed on 14/5/1935.
(3) ON 11/4/1936 Girja filed an application under S. 4, U. P. Encumbered Estates Act. E. E. Act Case No. 11 of 1936 for the liquidation of his debts. In the written statement dated 21/5/1936 filed under S. 8 of the Act the ten annas share in the properties left by the deceased was shown as belonging to Girja and as liable for the satisfaction of his debts On 22/5/1937 Gangotri filed objections under S. 11 of the Act claiming the said properties as his own under the will dated 17/3/1928, alleged to have been executed by the deceased in his favour. On 18/5/1937 Gangotri filed Regular Suit No. 71 of 1938 in the court of the Civil Judge, Gonda against Girja for recovery of possession of the 10 annas share of the properties left by the deceased and held by Girja under the terms of the award. Gangotri based his claim on the terms of the said will and contended that he was entitled to all the properties left
