Succession Act, 1925 – s.63 – SR-Testator was the owner of 1/4th share of a land – The Testator had no children and resided with his nephew appellant-GK – He executed a Will on 07.11.2005 and passed away the next day on 08.11.2005 – Having received the said land/property by the virtue of the said Will, the appellant transferred the same in favour of his four sons – Thereafter, the said property was sold jointly – Respondent nos.1 to 7 herein filed a suit seeking declaration to the effect inter alia that the Will dated 07.11.2005 was forged and fabricated – Trial Court held that the Will cannot be relied on – The Will was held to be valid and genuine by the Lower Appellate Court, so also it was held that the consequent sale deeds cannot be held invalid – However, the High Court held that the Will had not been proved – Correctness: Held: The view taken by the High Court is that the attesting witness, in his deposition, did not state that the act of affixing his thumb impression on the Will subject matter of dispute was at the direction of the Testator and, therefore, the requirement stipulated u/s. 63 of the Act was not met – 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 on the Will OR has seen some other persons sign the Will in the presence and by the direction of the Testator OR has received a personal acknowledgment from the Testator of his signature or mark etc – What flows therefrom is that the witnesses who have attested the Will ought to have seen the Testator sign or attest his mark OR have seen some other persons sign the Will in the presence of and on the direction of the Testator – In the instant case, the testimony of DW-1 is clear that he had seen the deceased affix his mark on the Will – That alone would ensure compliance of Section 63(c) – The part of the Section that employs the term ‘direction’ would come into play only when the attestor to the Will would have to see some other person signing the Will – Such signing would explicitly have to be in the presence and upon the direction of the Testator – The requirement of law while undoubtedly present, was not of concern in the instant dispute – On that count, the High Court to have erred in law – As such the impugned judgment of the High Court is set aside – The Judgment of the First Appellant Court stand restored – Consequently, the Will of SR is valid and so are the subsequent Sale Deeds executed by GK. [Paras 11, 13, 14, 15]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Ankit Gyan. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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