GOPAL SWAROOPversusKRISHNA MURARI MANGAL & ORS.

                 [2010] 14 (ADDL.) S.C.R. 211


                       GOPAL SWAROOP                                 A
                                 v.
             KRISHNA MURARI MANGAL & ORS.
               (Civil Appeal No. 6801 of 2003)
                     NOVEMBER 25, 2010
                                                                     B
       [MARKANDEY KATJU AND T.S. THAKUR, JJ.]

       Succession Act, 1925; s. 63 - Execution of Will -
  Essential requirements to prove - Discussed - In the instant
  case, deposition of the attesting witness proved that the C
  testator had executed Will in favour of the propounder and had
  signed and affixed his signature in his presence - The
  signature of the testator was appropriately placed in the Will
  - Deposition of attesting witness was that he a/ongwith the
  other attesting witness was present at the time the testator D
  affixed his signature on the Will and the two witnesses signed
  the Will in the presence of the testator:-Requirements of s. 63
  were fulfilled - Trial cowt and Single Judge of High Court had
  concurrently held that the execution of Will was satisfactorily
  proved - Division Bench of High Court erred in reversing that E
  finding - Evidence Act, 1872 - s. 68 - Will - Appeal.

       Evidence Act, 1872: s. 68 - Held: Where the document
  sought to be proved is required to be attested, the same
  cannot be let in evidence unless at/east one of the attesting
  witnesses has been called for proving the attestations, if any     F
~ such attesting witness is alive and capable of giving evidence
  - Deeds and documents - Witness - Attesting witness -
  Succession Act, 1925 - s. 63.

        Appeal: Letters Patent appeal - Power of Lett~rs Patent      G
  Bench hearing a second appeal to interfere with the order
  passed by single judge - Held: Letters Patent Bench will be
  slow in interfering with the concurrent finding of fact recorded
  by trial court and single judge in the first appeal - However,
                               211                                   H
    212    SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A   court may interfere where the finding is demonstrably
    erroneous, irrational or perverse.

       Respondent no.1 filed a suit for partition of the joint
  family property. Defendant no.1, the father of the plaintiff
  was the 'karta' of the joint family. He died during the
8 pendency of the suit. The appellant set up a Will
  purportedly executed by defendant no.1 whereby he
  devolved his share upon the appellant. The suit was
  decreed by the trial court. The trial court also found that
  the Will set up by the appellant was duly proved and that
C in terms thereof the property left by defendant no.1 would
  devolve upon the appellant.

       The Single Judge of the High Court affirmed the
  findings of the trial court. Respondent no.1 filed Letters
D Patent Appeal. The Division Bench of the High Court
  partly allowed the appeal and held that the execution of
  the Will was not proved in as much as the solitary witness
  DW-2 did not prove that the testator had signed the Will
  in the presence of the second witness and that the
E second witness had signed the Will as the attesting
  witness. The instant appeal was filed challenging the
  order of High Court.

          Allowing the appeal, the Court

F      HELD: 1. In a Letters Patent Appeal aris1:1g out of an
  order passed by a Single Judge, the Division Bench of
  the High Court hearing a civil second appeal would not
  re-appreciate the evidence to record a finding of fact. That
  is because the Single Judge cannot himself do so in the
G light of the limitations placed upon the court by Section
  100, C.P.C. That may not, however, be true when the
  Single Judge passes an order in a first appeal filed before
  him. Even when the finding of fact recorded by the Single
  Judge may affirm the finding recorded by the trial court,
H
GOPAL SWAROOP v. KRISHNA MURARI MANGAL & 213
                  ORS.
there is no express bar to the examination of any such            A
finding by the Division Bench of the High Court hearing
the Letters Patent Appeal. Even in the absence of any
legal bar to the examination of a finding of fact, a Letters
Patent Bench will be slow in interfering with the
concurrent finding of fact recorded by the trial court and        B
the Single Judge in the first appeal. The court may
interfere where the finding is demonstrably erroneous in
that it is either irrational a perverse being without any
evidence. The jurisdiction exercised by the court being
discretionary ought to be exercised along judicial lines.         c
[Para 9) [220-F-H; 221-A]

    Smt. Asha Devi v. Dukhi Sao and Anr. 1974 (2) SCC
492; B. Venkatamuni v. C.J. Ayodhya Ram Singh and Ors.
(2006) 13 sec 449 • relied on.
                                                                  D
     2.1. The trial court and the Single Judge of the High
Court had, in the instant case, concurrently held that the
execution of the Will was satisfactorily proved. The
Letters Patent Bench had, however, reversed that finding
primarily on the ground that the execution of the Will was        E
not proved in terms of Section 68 of the Evidence Act read
with Section 63 of the Indian Succession Act. It is evident
that in cases where the document sought to be proved
is required by law to be attested, the same cannot be let
in evidence unless at least one of the attesting witnesses        F
has been called for the purpose of proving the attestation,
if any such attesting witness is alive and capable of
giving evidence and is subject to the process of the
Court. Section 63 of the Indian Succession Act deals with
execution of unprivileged Wills and, inter alia, provides         G
that every testator except those mentioned in the said
provision shall execute his will according the rules
stipulated therein. From a conjoint reading of the two
provision, it is evident that a Will is required to be attested
                                                                  H
    214   SUPREME COURT REPORTS [l2010] 14 (ADDL.) S.C.R.


A by two or more witnesses each of whom has seen the
  testator signing or affixing his mark on ,the Will or has
  been other person signing the Will in the presence and
  by the testator or has received from the testator 'a.
  personal acknowledgment of the signature or mark or his
B signature or the signature of such other person and that
  each of the witnesses has signed the Will in the presence
  of the testator. Section 68 of the Evidence Act is against
  the use of a Will in evidence unless one attesting witness
  has been examined to prove the execution. A careful
c analysis of the provisions of Section 63 would show that
  proof of execution of a Will would require four aspects
  to be proved; (1) The testator has signed or affixed his
  mark to the Will or the Will has been signed by some
  other person in the presence and under the direction of
0 the testator. (2) The signature or mark of the testator or
  the signature of the persons signing for him is so placed
  as to appear that the same was intended thereby to give
  effect to the writing as a Will (3) The Will has been attested
  by two or more witnesses each one of whom has signed
  or affixed his mark to the Will or has been seen by some
E other person signing the Will in the presence and by the
  direction of the testator of has received from testator a
  personal acknowledgement of the signature of mark or
  the signature of each other person. (4) Each of the
  witnesses has signed the Will in the presence of the
F Testator. [Paras 10-13) [221-C-G-H; 222-A-G-H; 223-A-G]

      Bhagwan Kaur W/o Bachan Singh v. Kartar Kaur Wlo
  Bachan Singh & Ors. 1994 (5) SCC 135; Seth Chand (since
  dead) now by L.Rs. v. Smt. Kam/a Kunwar and Ors. 1976 (4)
G SCC 554; Janki Narayan Bhoir v. Narayan Namdeo Kadam
  2003 (2) sec 91; Gurdev Kaur and Ors. v. Kaki and Ors.
  2007 (1) SCC 546; Yumnam Ongbi Tampha lbema Devi v.
  Yumnam Joykumar Singh and Ors. 2009 (4) SCC 780; Rur
  Singh (dead) Through LRs. and Ors. v. Bachan Kaur 2009
H
GOPAL SWAROOP v. KRISHNA MURARI MANGAL & 215
                  ORS.
(11) SCC 1; Anil Kak v. Kumari Sharada Raje and Ors. 2008      A
(7) sec 695, relied on .

    . 2.2. The requirements stipulated in Section 63 were
satisfied in the instant case by the appellant-propounder
of the Will. It is not disputed that one of the witnesses
                                                               B
DW-2 was summoned and examined as witness. The
deposition of DW-2 clearly proved that the testator had
executed a Will in favour of the appellant and had signed
and affixed his signature in his presence. The trial court
and the single Judge of the High Cburt had concurrently        C
held that the Will had been signed by the testator in the
presence of the attesting witnesses. The signature of the
testator appeared at the right hand bottom part of the Will.
The placement of the signature on the document was,
therefore, appropriate and clearly suggestive of the fact
that the document was intended to be given effect to as        D
a Will. DW-2 had in clear and unambiguous stated that not
only he but the other attesting witness to the Will was
also present at the time the testator affixed his signature
on the Will. The said statement was not questioned in
cross-examination nor was any suggestion made to the           E
effect that while DW-2 was present, the second attesting
witnesses was not so present at the time the Will was
signed by the testator. As a matter of fact, the witness
made a categoric statement that the second witness met
the testator in the court and was taken along and that not     F
only at the time of signing of the Will by the testator, but
even before the Registrar, the second witness was
present in person. A careful and proper reading of the
deposition of DW-2 showed that the two attesting
witnesses had seen the testator signing or affixing his        G
mark on the Will and the attesting witnesses also signed
the Will in the presence of the testator. Thus, all the four
requirements prescribed in Section 63 of the Indian
Succession Act stood firmly established. In that view of
the matter, the Division Bench of the High Court fell in       H
    216    SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A error in holding that the requirement of Section 63 of the
  Indian Succession Act was not satisfied in the instant
  case. In the matter of proof of documents as in the case
  of the proof of Wills, it is idle to expect proof with
  mathematical certainty. The test to be applied always is
B the test of satisfaction of a prudent mind in such matters.
  Applying that test to the case at hand, there is no doubt
  that the Will in question was a duly registered document
  and was not surrounded by any suspicious
  circumstances of any kind and in proved to have been
c duly and properly executed. [Paras 13-17] (223-B; 224-E-
  F; 225-A-D; 225-E-H]
        H. Venkatacha/a Iyengar v. B.N. Thimmajamma AIR
    1959 SC 443 relied on.

D                        Case Law Reference:
          1974 (2) sec 492       relied on          Para 9
          (2006) 13 sec 449      relied on          Para 9
          1994 (5) sec 135       relied on          Para 14
E
          1976 (4) sec 554       relied on          Para 14
          2003 (2) sec 91        relied on          Para 14
          2001 (1) sec 546       relied on          Para 14
F
          2009 (4) sec 780       relied on          Para 14
          2009 (11) sec 1        relied on          Para 14
          2008 (7) sec 695       relied on          Para 14
G         AIR 1959 SC 443        relied on          Para 17
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    6801 of 2003.

          From the Judgment & Order dated 4.3.2002 of the High
H
GOPAL SWAROOP v. KRISHNA MURARI MANGAL & 217
                  ORS.
Court of Madhya Pradesh, Jabalpur, Bench at Gwalior Letters             A
Patent Appeal No. 75 of 1994.

   S.K. Dubey, Niraj Sharma, Vikrant Singh Bais, Sumit
Kumar Sharma for the Appellant.

    Sushi! Kumar Jain, Puneet Jain, Pratibha Jain, Shankar              B
Divate for the Respondents.

     The Judgment of the Court was delivered by

     T.S. THAKUR, J. 1. This appeal by special leave arises             c
out of a judgment and order dated 4th March, 2002 passed by
a Division Bench of the High Court of Madhya Pradesh at
Jabalpur, Gwalior Bench, whereby Letters Patent Appeal
No.75/1994 has been allowed in part and the judgment and
decree passed by the First Appellate Court modified.
                                                                        D
      2. The facts giving rise to the filing of a suit for partition
and separate possession by the plaintiff-respondent no.1 in this
appeal have been set out in the judgment under appeal hence
do not bear repetition. All that need be stated is that
respondent no.1 the plaintiff in the suit claimed partition of what     E
was described by him as joint family property with his father
Shri Panna Lal-defendant no.1 as the 'Karta' of the joint family.
During the pendency of the suit Shri Panna Lal died giving rise
to an additional issue as regards the devolution of the property
left behind by him including his share in the joint family property.    F
The appellant set up a Will allegedly executed by Shri Panna
Lal according to which the share of the deceased testator was
to devolve exclusively upon the former. The suit filed by the
respondent was eventually decreed by the Trial Court holding
plaintiff-respondent no.1 entitled to 1/5th share in the joint family   G
property and the goodwill of the joint family business. The Court
also found that the Will set up by the appellant herein had been
duly proved and that in terms thereof the property left behind
by Shri Panna Lal would devolve exclusively upon the appellant.

     3. Both the parties filed appeals which were heard by a            H
    218    SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A   learned Single Judge of the High Court of Madhya Pradesh who
    formulated the following two questions for determination and
    finally dismissed the appeal by his orders dated 26.9.1994:

          (1)    Whether the plaintiff took a sum of Rs.21,000/- out
B                of share in the capital of the defendants as alleged
                 or it was taken by him as his share in the capital,
                 house and other properties as claimed by the
                 defendants?

           (2)   Whether the plaintiff has got any share in the joint
C                property if any in dispute and if so to what extent?


         4. In so far as question no.1 is concerned, the learned
    Single Judge affirmed the finding recorded by the Trial Court
0   that the plaintiff had taken his share in the capital and interest
    etc. and not his share in the house and the other properties.
    The finding of the Trial Court that the plaintiff had a share in the
    goodwill of the family business was also affirmed.

          5. Even in regard to the second question the findings
E   recorded by the Trial Court was affirmed. The High Court held
    that the service of a notice by the plaintiff about his intention to
    separate had brought about a division in joint family shares and
    that the plaintiff was entitled to have his share in the property
    in the joint family ascertained and partitioned. The High Court
F   noted that while the plaintiff and his brothers had 1/5th share
    each, the plaintiff's claim for a larger share on account of the
    death of his father and devolution of the latter's estate upon all
    the brothers by succession had to be seen in the light of the
    Will propounded by defendant-appellant Gopal Swaroop. The
G   High Court then proceeded to discuss the evidence relating to
    the execution of the Will by Shri Panna Lal including the
    deposition of DW-2 Shri Vilas Tikhe in support thereof and
    recorded a finding that the execution of the Will had been
    satisfactorily established. The High Court also rejected the
H   contention that there were any suspicious circumstances
GOPAL SWAROOP v. KRISHNA MURARI MANGAL & 219
          ORS. [T.S. THAKUR, J.]
surrounding the 1 Will which the High Court noted was a                A
registered document. The High Court in conclusion held that the
plaintiff had 1/5th share in the house in question and the goodwill
of the business and affirmed the finding of the Trial Court to the
effect that the plaintiff had 1/8th share in the jewellery items and
the amount representing the share of Saraswatibai held in              B
deposit in the firm.

      6. Dissatisfied with the view taken by the learned Single
Judge respondent no.1 preferred Letters Patent Appeal No.75/
1994 before a Division Bench of the High Court which was               C
allowed in part and the judgment and decree passed by the
Courts below modified. The Division Bench held that the
execution of the Will by Shri Panna Lal had not been proved in
as much as the solitary witness DW-2 Vilas Tikhe did not prove
that Shri Panna Lal had signed the Will in the presence of Manoj
Kumar and that Manoj Kumar had also singed/the Will as a               D
witness. The High Court accordingly held that while the
appellant-plaintiff and defendants 2 and 3 will get 1/4th plus 1I
32nd i.e. 9/32nd share each in the joint family property the rest
will go to the other legal heirs of Ghanshyamdas and Shyam
Sunder and daughters of the deceased Panna Lal. The High               E
Court also directed the partition of immovable properties with
9/32nd share each to the branch of Ghanshyamdas and Shyam
Sunder and three sisters of the plaintiff-appellant herein.

     7. We have heard learned counsel for the parties at               F
considerable length. The only question that was debated before
us is whether execution of the Will propounded by the
defendant-appellant before the Trial Court had been
satisfactorily proved. On behalf of the appellant it was
contended that the Division Bench was in error in reversing the        G
concurrent findings of fact recorded by the Trial Court and the
Single Judge to the effect that the execution of the Will stood
satisfactorily proved. Reliance was also placed by learned
counsel for the appellant upon the testimony of DW-2 Vilas
Tikhe one of the attesting witnesses to the Will to contend that
                                                                       H
    220 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A the deposition of the said witness had sufficiently proved the
   execution of the Will in question in compliance with the
   provisions of Section 63 of the Indian Succession Act. It was
   argued that the deposition of DW-2 Vilas Tikhe had not been
   properly appreciated by the High Court in the Letters Patent
B ·Appeal and a hyper technical view taken while holding that the
   said deposition was insufficient to prove the execution of the
   Will in accordance with law.

       8. Mr. Sushil Kumar Jain, counsel appearing for the
  respondent contended that proof of a document purporting to
C be a Will had to satisfy the requirements of Section 63 of the
  Indian Succession Act and Section 68 of the Indian Evidence
  Act which requirements had not, according to the learned
  counsel been satisfied in the instant case, It was contended by
  the learned counsel that the mere fact that the Will was a
D registered document did not mean that proof regarding its
  execution in accordance with the provisions of law could be
  dispensed with.

       9. In a Letters Patent Appeal arising out of an order
E passed by a Single Judge hearing a civil second appeal the
  Division Bench of the High Court would not re-appreciate the
  evidence to record a finding of fact. That is because the Single
  Judge cannot himself do so in the light of the limitations placed
  upon the Court by Section 100 of the C.P.C. That may not,
F however, be true when the Single Judge passes an order in a
  First Appeal filed before him. Even when the finding of fact
  recorded by the Single Judge may affirm the finding recorded
  by the Trial Court, there is no express bar to the examination
  of any such finding by the Division Bench of the High Court
G hearing the Letters Patent Appeal. Having said so, we must
  hasten to add that even in the absence of any legal bar to the
  examination of a finding of fact, a Letters Patent Bench will be
  slow in interfering with the concurrent finding of fact recorded
  by the Trial Court and the Single Judge in the first appeal. The
  Court may interfere where the finding is demonstrably
H
GOPAL SWAROOP v. KRISHNA MURARI MANGAL & 221
        I
        , ORS. [T.S. THAKUR, J.]

erroneous in that it is either irrational or perverse being without   A
any evidence. The jurisdiction exercised by the Court being
discretionary ought to be exercised along judicial lines. (See
Smt. Asha Devi v. Dukhi Sao and Anr. 1974 (2) sec 492 and
B. Venkatamuni v. C.J. Ayodhya Ram Singh and Ors. (2006)
13 sec 449.                                                           s
     10. The Trial Court and the Single Judge of the High Court
had, in the present case, concurrently held the execution of the
Will to have been satisfactorily proved. The Letters Patent
Bench has, however, reversed that finding primarily on the            C
ground that the execution of the Will is not proved in terms of
Section 68 of the Evidence Act read with Section 63 of the
Indian Succession Act. Section 68 of the Evidence Act reads
as under:

    "68. Proof of execution of document required by law to            D
    be attested - If a document is required by law to be
    attested, it 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         E
    evidence:

           Provided that it shall not be necessary to call an
    attesting witness in proof of the execution of any document,
    not being a will, which has been registered in accordance
    with the provisions of the Indian Registration Act, 1908 (16
                                                                      F
    of 1908), unless its execution by the person by whom it
    purports to have been executed is specially denied."

      11. It is evident that in cases where the document sought
to be proved is required by law to be attested, the same cannot       G
let be in evidence unless at least one of the attesting witnesses
has been called for the purpose of proving the attestation, if any
such attesting witness is alive and capable of giving evidence
and is subject to the process of the Court. Section 63 of the
Indian Succession Act deals with execution of unprivileged            H
                                                                             I




    222     SUPREME COURT REPORTS (2010] 14 (ADDL.) S.C.R.


A Wills and, inter alia, provides that every Testator except those
  mentioned in the said provision shall execute his Will according
  to the rules stipulated therein. It reads:

          "63. Execution of unprivileged wills.- Every testator, not
B         being a soldier employed in an expedition or engaged in
          actual warfare, or an airman so employed or engaged, or
          a mariner at sea, shall execute his will according to the
          following rules:-

          (a) The testator shall sign or shall affix his mark to the will,
c         or it shall be signed by some other person in his presence
          and by his direction.

          (b) The signature or mark of the testator, or the signature
          of the person signing for him, shall be so placed that it shall
D         appear that it was intended thereby to give effect to the
          writing as a will.

          (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
E         the presence and by the direction of the testator, or has
          received from the testator a personal acknowledgment of
          his signature or mark, or 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
F         more than one witness be present at the same time, and
          no particular form of attestation shall be necessary."

        12. From a conjoint reading of the two provisions extracted
  above it is evident that a Will is required to be attested by two
G or more witnesses each of whom has seen the Testator signing
  or affixing his mark on the Will or has seen some other person
  signing the Will in the presence and by the direction of the
  Testator or has received from the Testator a personal
  acknowledgment of the signature or mark or his signature or
H the signature of such other person and that each of the
GOPAL SWAROOP v. KRISHNA MURARI MANGAL & 223
          ORS. [T.S. THAKUR, J.]
witnesses has signed the Will in the presence of the Testator.      A
Section 68 of the Evidence Act is against the use of a Will in
evidence unless one attesting witness has been examined to
prove the ex~cution.

     13. The question, however, is whether the Will propounded
                                                                    B
by the appellant and purporting to have been attested by two
witnesses, namely, Manoj Kumar and Vilas Tikhe has been
validly proved. It is not disputed that one of the said witnesses
namely, Vilas Tikhe has been summoned and examined as a
witness. What is to be seen is whether the examination of the
said witness satisfies the requirements of Section 63 of the        C
Succession Act (supra). A careful analysis of the provisions
of Section 63 would show that proof of execution of a Will would
require the following aspects to be proved:

    (1) That the Testator has signed or affixed his mark to the     D
    Will or the Will has been signed by some pther person in
    the presence and under the direction of the Testator.

    (2) The signature or mark of the Testator or the signature
    of the persons signing for him is so placed has to appear       E
    that the same was intended thereby to give effect to the
    writing as a Will.

    (3) That the Will has been attested by two or more
    witnesses each one of whom has signed or affixed his
    mark to the Will or has been seen by some other person          F
    signing the Will in the presence and by the direction of the
    Testator or has received from Testator a personal
    acknowledgement of the signature or mark or the signature
    of each other person.
                                                                    G
    (4) That each of the witnesses has singed the Will in the
    presence of the Testator.

     14. The decisions of this Court in Bhagwan Kaur Wlo
Bachan Singh v. Kartar Kaur W/o Bachan Singh & Ors. 1994
(5) SCC 135, Seth Beni Chand (since dead) now by L.Rs. v.           H
                                                                          I




    224    SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A Smt. Kam/a Kunwar and Ors. 1976 (4) SCC 554, Janki
  Narayan Bhoir v. Narayan Namdeo Kadam 2003 (2) SCC 91,
  Gurdev Kaur and Ors. v. Kaki and Ors. 2007 (1) SCC 546,
  Yumnam Ongbi Tampha lbema Devi v. Yumnam Joykumar
  Singh and Ors., 2009 (4) SCC 780, Rur Singh (dead) Through
B LRs. and Ors. v. Bachan Kaur, 2009 ( 11) SCC 1 and Anil Kak
  v. Kumari Sharada Raje and Ors. 2008 (7) SCC 695
    recognize and reiterate the requirements enumerated above to
    be essential for the proof of execution of an unprivileged Will
    like the one at hand. It is, therefore, not necessary to burden
c   this judgment by a detailed reference of the facts relevant to
    each one of these pronouncements and the precise contention
    that was urged and determined in those cases. All that needs
    to be examined is whether the requirements stipulated in
    Section 63 and distinctively enumerated above have been
    satisfied in the instant case by the appellant propounder of the
0
    Will. Our answer to that question is in the affirmative. The
    deposition of Shri Vilas Tikhe clearly proves that Panna Lal had
    executed a Will in favour of the appellant, Gopal Swaroop and
    had signed and affixed his signature in his presence. The Trial
    Court and the High Court have concurrently held that the Will
E   had been signed by the Testator in the presence of the attesting
    witnesses. First and the foremost requirement prescribed under
    Section 63 of the Indian Succession Act, 1925 is, therefore,
    clearly satisfied.

F       15. Coming then to the second requirement namely, the
  placement of the signature of the Testator on the Will, we find
  that the signature of the Testator appear at the right hand bottom
  part of the Will. The placement of the signature on the document
  is, therefore, appropriate and clearly suggestive of the fact that
G the document was intended to be given effect to as a Will. We
  must also mention that no argument was advanced by learned
  counsel for the respondent on the requirement of an appropriate
  placement of the signature of the Testator on the document.

          16. That brings us to the third requirement, namely, that the
H
GOPAL SWAROOP v. KRISHNA MURARI MANGAL & 225
          ORS. [T.S. THAKUR, J.]
Will must be attested by two or more witnesses each of whom            A
has seen the Testator signing and affixing his mark to the Will
or has seen some other person signing in the presence and
by the direction of the Testator. The deposition of Shri Vilas
Tikhe in our opinion satisfies this requirement also in as much
as the witness has in clear and unambiguous terms stated that          B ·
not only he but Shri Manoj, the other attesting witness to the
Will was also present at the time the Testator affixed his
signature on the Will. It is noteworthy that, the above statement
has not been questioned in cross-examination nor any
suggestion made to the effect that while Shri Vilas Tikhe, the         c
witness may have been present, Manoj was not so present at
the time the Will was signed by the Testator. As a matter of fact,
the witness has made a categoric statement that Manoj met
the Testator in the Court and was taken along and that not only
at the time of signing of the Will by the Testator, but even before    0
the Registrar, Manoj Kumar was present in person. The witness
has while answering a question in cross-examination
specifically stated that Manoj was present even at the time the
witness signed the Will in question.

       17. On a careful and proper reading of the deposition of        E
·Shri Vilas Tikhe DW-2, we are satisfied that the requirement
 of attestation of the Will by two witnesses each of whom has
·seen the Testator signing or affixing his mark has been satisfied
 in the present case. So also the fourth requirement that the
 attesting witnesses sign the Will in the presence of the Testator     F
 stands firmly established. In that view of the matter, the Division
 Bench of the High Court fell in error in holding that the
 requirement of Section 63 of the Indian Succession Act had not
 been satisfied in the instant case. As was observed by this
 Court in H. Venkatachala Iyengar v. B.N. Thimmajamma AIR              G
 1959 SC 443, in the matter of proof of documents as in the
 case of the proof of Wills, it is idle to expect proof with
 mathematical certainty. The test to be applied always is the test
 of satisfaction of a prudent mind in such matters. Applying that
 test to the case at hand we have no manner of doubt that the          H
    226    SUPREME COURT REPORTS [201-0] 14 (ADDL.) $.C.R.


A Will executed by Shri Panna Lal which is a duly registered
  document is not surrounded by any suspicious circumstances
  of any kind and is proved to have been duly and properly
  executed.

B      18. In the result, this appeal succeeds and is hereby
  allowed. The impugned judgment and order passed by the
  Division Bench of the High Court of Madhya Pradesh at
  Jabalpur, Gwalior Bench, is set aside and the judgment and
  order passed by the learned Single Judge of that Court is
C restored. The parties shall bear their own costs.
    D.G.                                   Appeals allowed.