1. Disputed grant of probate of a Will — whether execution and attestation under Section 63 of the Indian Succession Act were duly complied with. (Para 2 , 3 , 4 , 5 )
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2008 Supreme(SC) 1920
2009(1) Supreme 339
SUPREME COURT OF INDIA
(From Gujarat High Court)
S.B. Sinha and Cyriac Joseph, JJ.
Lalitaben Jayantilal Popat — Appellant
versus
Pragnaben Jamnadas Kataria & Ors. — Respondents
Civil Appeal No. 7434 of 2008
(Arising out of SLP (C) No.17161 of 2006)
Decided on : 19-12-2008
Advocates appeared:
For the Appellant :Jay Savla, Ms. Meenakshi Ogra and Ms. Arundhati Das, Advocates.
For the Respondents:Adarsh Priyadarshi and Ms. Sumita Hazarika, Advocates.
For the Appellant :Jay Savla, Ms. Meenakshi Ogra and Ms. Arundhati Das, Advocates.
For the Respondents:Adarsh Priyadarshi and Ms. Sumita Hazarika, Advocates.
IMPORTANT POINT
Statutory requirements for proving of Will must be satisfied.
Headnote:(a) Indian Succession Act, 1925 – Section 63(c) – The provision being mandatory in nature, a Will is required to be attested by two or more witnesses. (Para 9)
(b) Indian Evidence Act, 1872 – Section 68 – The propounder must prove execution and attestation of the Will by examining at least one of the attesting witnesses. (Para 9)
(c) Indian Succession Act, 1925 – Section 63(c) – It has 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 – Will is not proved. (Para 12)
(2003)2 SCC 91; 2007 (7) SCALE 228; 2008 (6) SCALE 597; 2008 (7) SCALE 743; (2007) 7 SCC 225; (2006) 13 SCC 249 – Relied upon.
(1990) 1 SCR 813; (1992) 2 SCR 30 – Referred.
(2003) 8 SCC 537 – Distinguished.
(d) Holograph Will – A greater degree of presumption arises in the case of ‘holograph Wills’. (Para 14)
(1996) 9 SCC 324 – Relied upon.
Facts of the case :
1. One Purshottam Manji Thakrar was the owner of the property. He died on 30.11.1984. He is 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).
2. 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 is 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 19.12.1995.
3. Respondents 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.
4. 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.
5. Two appeals were preferred thereagainst. By reason of the impugned judgment, the High Court dismissed the said appeals.
Finding of the Court :
Impugned judgment cannot be sustained.
Result : Appeal allowed.
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2. Appellant contends Will was not duly attested by two witnesses and is surrounded by suspicious circumstances; respondent contends attestation requirements were satisfied and no suspicious circumstances exist. (Para 6 , 7 )
3. Appeal allowed; impugned judgment set aside; probate of the Will refused as execution and attestation requirements were not met. (Para 1 , 17 )
4. Does Section 63(c) of the Indian Succession Act mandatorily require attestation of a Will by two or more witnesses?
Yes, attestation by two or more witnesses is mandatory under Section 63(c). Each witness must have seen the testator sign or received personal acknowledgement of the signature, and each must sign the Will in the presence of the testator. (Para 8 , 9 )
5. Under Section 68 of the Evidence Act, must at least one attesting witness be examined to prove due execution of a Will?
Yes, at least one attesting witness must be called and examined to prove due execution of a Will. If the examined witness fails to prove attestation by the other witness, the remaining attesting witness must also be called to supplement the evidence. (Para 16 )
6. Can a Will be granted probate if it is surrounded by suspicious circumstances that have not been removed by the propounder?
No. Execution of a Will must be free from suspicious circumstances. Where suspicious circumstances appear on the face of the instrument or in evidence, the propounder must remove them; otherwise the Will cannot be proved valid. (Para 12 , 14 , 15 )
7. Was the Will in question duly proved given the deficiencies in attestation evidence and unresolved suspicious circumstances?
No. The sole examined attesting witness failed to prove that both witnesses signed in the testator's presence. The second witness was not examined, the Will was found surrounded by suspicious circumstances, and the statutory requirements for proof under Section 63 and Section 68 were not satisfied. (Para 10 , 11 , 12 , 13 , 16 )
JUDGMENT
S.B. Sinha, J. —
1. Leave granted.
2. This 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 of 2006.
3. One 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).
Purshottam Manji 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 19.12.1995.
4. Respondents 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.
5. Two 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,1 (2003 (2) SCC 91), issue notice only on the question as to whether the Will dated 18.6.1995 was legally proved.”
6. Mr. 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.2 [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:
“Respondent 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 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 November, 1983. 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, Re
