Holding

The Will was duly executed and genuine, having complied with Section 63(c) of the Succession Act and Section 68 of the Evidence Act, and the High Court erred in disturbing the lower courts' factual findings.

Summary

The case concerned a Will executed by a villager, Kehar Singh, bequeathing his agricultural lands to his sons, which was challenged by his daughter Bachan Kaur on the ground that the Will was not duly executed and was surrounded by suspicious circumstances. The trial court and the first appellate court held the Will genuine, noting that it was scribed by the village Sarpanch, attested by ten witnesses (nine independent) and that the mutation of the lands was effected in 1970 without challenge. The Punjab and Haryana High Court reversed those findings, holding that the Will violated Section 63(c) of the Succession Act and was tainted by the beneficiary’s participation and the absence of the panchayat register. The Supreme Court held that the Will must be proved in accordance with Section 63(c) of the Succession Act and Section 68 of the Evidence Act, and that the High Court erred in interfering with the factual findings as no substantial question of law was involved. Consequently, the appeal was allowed and the High Court judgment set aside.

Issues considered

Whether the Will was duly proved and genuine under Section 63(c) of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872.
Whether the presence of a beneficiary among the attesting witnesses invalidates the Will.
Whether the non‑production of the panchayat register defeats proof of execution.
Whether the High Court could interfere with the concurrent findings of fact of the lower courts under Section 100 of the Code of Civil Procedure, 1908.
Whether the order of mutation passed in 1970 indicates acceptance of the Will’s validity.

Legislation cited

Subjects

Will executionSection 63Section 68Succession ActEvidence ActHigh Court jurisdictionSection 100 CPCAttesting witnessesSuspicious circumstancesMutation orderProbate

Judgment

[2009] 2 S.C.R. 106

A RUR SINGH (D) TH. LRS. & ORS.
\<:
v
BACHAN KAUR
Civil Appeal No. 941 of 2009
FEBRUARY 12, 2009
B
[S.8. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.]
Succession Act, 1925 :
-1--
s. 63(c) - Will - Execution of- Proof of- Held Execution
c of Will is required to be proved in terms of provisions of s. 63
(c) ands. 68 of Evidence Act - Villager bequeathing agricul-
tural lands in favour of sons excluding daughter - Testator in
sound disposing mind - Will scribed by Sarpanch and attested
by ten witnesses - Nine were independent witnesses and one
D was the beneficiary - Execution and attestation concluded in
one go - Order of mutation passed immediately after execu- ....
tion of Will and same not challenged - Thus, Will was genu-
ine and the statutory requirements were complied with - One
of the attesting witness being beneficiary, would not mean that
E he took active part in its execution - Concurrent findings by
court below upheld- Evidence Act, 1872 - s. 68.
The question which arose for consideration in this
appeal was whether the High Court was justified in inter- ,..
fering with the concurrent findings of fact by courts be-
F low that the Will executed by the testator-villager was
genuine and free from suspicious circumstances.
Allowing the appeal, the Court
HELD: Execution of a Will is required to be proved in
G terms of the provisions of s. 63(c) of the Succession Act, ,.
1925 and s. 68 of the Evidence Act, 1872. [Para 14] [114-G, H]
2.1 High Court while exercising its jurisdiction un-
der s. 100 of the Code of Civil Procedure, 1908 exercises
H 106
-(
RUR SINGH (0) TH. LRS. & ORS. V. 107
BACHAN KAUR
,..
a limited jurisdiction. It may interfere with a finding of fact A
~
arrived at by the trial court and/ or the first appellate court
¥
only in the event, a substantial question of law arises for
its consideration. The High Court framed only one sub-
-\ stantial question of law, viz., whether the Will had been
duly proved and/ or was otherwise genuine. It is essen- 8
tially a question of fact. The High Court essentially en-
tered into the arena of appreciation of evidence. It inter-
=(
fered with the concurrent findings of fact arrived at by the
-t courts below. [Paras 10, 11, 14] [ 112-H; 113-A, B; 114-G]
2.2 High Court unfortunately even did not choose to
c
assign any reason in support of its conclusion that the
statutory requirements contained in Section 63(c) of the
Succession Act had not been complied with. The oral evi-
dence adduced on behalf of the parties had not been dis-
D
cussed far less analysed. How and in what manner the
~
statutory requirements had not been complied with was
not stated. High Court omitted to notice that at least in'
respect of the properties situate in one village the order
of mutation was passed in the year 1970, i.e., immediately E
after the execution of the Will. High Court furthermore
failed to take into consideration that at least in regard to
the said order of mutation, the respondent did not carry
the matter to the appellate court or question the validity
~
thereof by filing a suit. [Paras 16 and 17] [ 118-A, 8, C, D] F
3.1 The Will was scribed in the house of the testator.
From the deposition of the witnesses, the trial judge as
also the first appellate court came to the conclusion that
he was in a sound disposing mind. The Will wa.s scribed
by the Sarpanch. As many as ten witnesses attested the G
Will; nine of them being independent witnesses. Execu-
~ tion of the Will as also attestation thereof by the witnesses
was concluded in one go. The testator and all the wit-
nesses were present throughout the .said transaction. It
H
108 SUPREME COURT REPORTS [2009] 2 S. C.R.

A ;is in the said situation, the first appellate court arrived at a
·categorical finding of fact that the statutory requirements "'
had been complied with as more than one witness had
attested the execution of the Will not only in presence of
·the testator but also in presence of each other. [Para 15]
B ["117.:.F, G, H]
3.2 The suit was filed in the year 1983. It was also not
the case of the respondent that she had been getting share
of the yields from the said agricultural properties. Only
because one of the beneficiaries attested the Will, the +:--
C same would not mean that he had taken active part in it.
In any event, the trial judge as also the first appellate court
found sufficient explanation therefor holding that as the
Will was executed in testator's house and he had been
living jointly with his sons, their presence in the house
D was natural. [Para 18] [ 118-E, F]
3.3 The Will was attested by nine independent per- ,._
sons. Three of them in fact had been examined. The High
Court while holding that a doubt is cast on its validity by
reason of active participation of one of the sons, failed to
E notice that nine other independent witnesses attested the
Will. Importance cannot be attached to the fact that al-
though the Sarpanch scribed the Will in Urdu, he at more
than one place signed in English. In a village, a person
may be more proficient in the vernacular language than ~
F English although he may be able to sign his name in En-
glish. If the Will was otherwise proved to be genuine and
the statutory requirements therefor were satisfied, only
because the panchayat register was not produced, the
same by itself-would not lead to the conclusion that the
G Will would be held to have not been executed, particu-
larly when two courts competent to arrive at findings of •
fact held it otherwise. [Paras 19 and 20] [118-G, H; 119-A, B]
Janki Narayan Bhoir v. Narayan Namdeo Kadam 2003
H (2) SCC 91; Benga Behera and Anr. v. Braja Kishore Nanda
RUR SINGH (D) TH. LRS. & ORS. V. 109

• BACHAN KAUR

and Ors. 2007 (7) SCALE 228; Anil Kak v. Kumari Sharada A
Raje and Ors. 2008 (6) SCALE 597; Lalitaben Jayantilal Popat
Cf
v. Pragnaben Jamnadas Kataria and Ors. 2009 (1) SCALE
328 - referred to.
Case Law Reference
B
2003 (2) sec 91 Referred to. Para 14

2007 (7) SCALE 228 Referred to. Para 14

"f 2008 (6) SCALE 597 Referred to. Para 14
t
_,,,
2009 (1) SCALE 328 Referred to. Para 14 c
CIVILAPPELLATE JURISDICTION : Civil Appeal No. 941
of 2009
From the Judgement and Order dated 11.07.2006 of the
High Court of Pubjab and Haryana at Chandigarh in RSA No D
2453 of 1999
Narender Yadav, Rameshwar Prasad Goyal, for the Peti-
tioner

. Ram Lal Gupta, Vikas Mahajan, Vishal Mahajan, Dharam
Bir Raj Vohra, for the Respondent.
E

The Judgement of the Court was delivered by
... S.8. SINHA, J :
"''"
F
1. Leave granted.

2. This appeal is directed against a judgment and order
dated 11.07.2006 passed by a learned Single Judge of the
Punjab and Haryana High Court whereby and whereunder a
judgment and order dated 18.11.1998 passed by the Additional G
~
District Judge, Mansa in Civil Appeal No. 59 of 1996, dismiss-
ing the appeal preferred by the respondent herein from a judg-
ment and decree dated 12.02.1996 passed by the Civil Judge
(Junior Division), Mansa in Civil Suit No. 341 of 1983.
H
r-

110 SUPREME COURT REPORTS [2009] 2 S.C.R.
~
)

A 3. The basic fact of the matter is not in dispute. "
One Kehar Singh was the owner of the property. The par- '>· >
ties hereto are his children. He is said to have executed a Will )

on or about 14.05.1969 in terms whereof he bequeathed all the F
agricultural properties in favour of his sons. The said Will is said
B to have been scribed by the Sarpanch of the village and at-
tested by ten witnesses. He expired on 5.10.1969. Mutation in
respect of the properties situate in the village Lohgarh in favour
of his sons was allowed by an order dated 4.02.1970. Alleg-
edly, order of the mutation in respect of the properties situated t'
c in the village Jhunir was passed in the year 1979.
,,.
4. Respond~:mt herein filed a suit in the Court of Civil Judge
(Junior Division), Mansa praying inter alia for a decree of pos-
session contending that the said Kehar Singh died intestate.
Appellants, on the other hand, claimed their right, title and inter-
D , __
est in the suit property by reason of the said Will executed by
'
'r
Kehar Singh. j-

The learned Trial Judge in view of the rival contentions of
the parties inter alia framed the following issues:
E "1-C. Whether the suit property developed (sic for devolved
upon) against heirs of Kehar Singh as mentioned in para
no. 4 of amended written statement?"
f
i--
'
,
5. The learned Trial Judge, keeping in view the order of ;. ~

F mutation in respect of the properties in favour of the appellants
herein which took place i_n the year 1970, the validity whereof
was not challenged, and on the basis of the other materials
brought on record, held the said Will dated 14.05.1969 to be
genuine and, thus, dismissed the said suit.An appeal preferred
thereagainst by the respondent was also dismissed.
G
6. Respondent herein preferred a second appeal there- 'f
,~

against. A learned Single Judge of the High Court formulated .,..
the following substantial question of law for consideration:
"Whether in the facts and circumstances of the case, the
H
RUR SINGH (D) TH. LRS. & ORS. V. 111
BACHAN KAUR [S.S. SINHA, J.]
Will allegedly executed by Kehar Singh was free from all A
-Y suspicious circumstances and whether the same
conformed to the provisions of Section 63 of the Ac:t?"
7. The concurrent findings of the Trial Court as also the
first Appellate Court were reversed by the learned Single Judge
of the High Court, stating: B

(i) As mutation of the properties had been ordered on
28.08.1979 in presence of the parties whereagainst
l
'. ·• no challenge was thrown, had the Will been in
existence in 1969, the same should have been c
produced in the mutation proceedings.
~ (ii) The Will is surrounded by suspicious circumstances
as all the beneficiaries had a role to play in execution
thereof.
.
"·1 D
(iii) The Will has been scribed by Gurbachan Singh,
Sarpanch in Urdu although he had chosen to sign in
English at more than one place.
(iv) The Will although was stated to be recorded in the
•' panchayat register but the same was not produced . E
As regards the question as to whether the Will has been
proved in terms of Section 63 of the Indian Succession Act, the
High Court held:
"Section 63 of the Act lays down the manner in which a F
Will is to be executed. The Will in question which is Ex. D-
1 dated 14.5.1969 is an unregistered Will. A perusal of
the same shows that there is complete violation of Section
63 (c) of the Act. Kehar Singh, who was the testator, died
on 5.10.1969. Cumulatively taken together, all these G
factors cast a dark shadow on the execution of the Will."
8. Mr. Narender Yadav, learned counsel appearing on be-
half of the appellants, would submit that the High Court commit-
ted a serious error in interfering with the concurrent findings of
H
112 SUPREME COURT REPORTS [2009] 2 S.C.R.

A fact in exercise of its jurisdiction under Section 100 of the Code
of Civil Procedure.
The learned counsel would draw our attention to the fact
that the order of mutation was passed in the year 1970, as has
been found by the learned Trial Judge, and thus, the High Court
8 committed a serious error in opining that the order of mutation
was passed in the year 1979.
The learned counsel would further submit that out of ten
attesting witnesses, only one of them being the beneficiary and
c nine others being independent witnesses and the Will having
been proved by three independent witnesses, the impugned
Judgment cannot be sustained. Furthermore, as the testator was
living jointly with the legatees, their presence at the time of ex-
ecution of the Will was natural and not uncommon.
D The learned counsel would further submit that the witnesses
having proved due execution of the w·ill both in terms of Section
63(c) of the Indian Succession Act and Section 68 of the Indian
Evidence Act, the High Court must have committed a serious
error in opining contra.
E
9. Mr. Vishal Mahajan, learned counsel appearing on be-
half of the respondent, on the other hand, would c:ontend:

(i) Kehar Singh being 80 years old and having executed
the Will four months prior to his death, it must be held !-c
F to be surrounded by suspicious circumstances.
(ii) Had the Will been genuine, the same would have
been produced before the Revenue Court in the
mutation proceeding.
G (iii) The village panchayat record wherein the factum of
the execution of the Will has been registered having f
not been produced, the Will cannot be said to be
genuine.

H 1O. T~e High Court while exercising its jurisdiction under
RUR SINGH (D) TH. LRS. & ORS. V. 113
BACHAN KAUR [S.8. SINHA, J.]

Section 100 of the Code of Civil Procedure exercises a limited A
-~ jurisdiction. It may interfere with a finding of fact arrived at by
the Trial Court and/ or the first Appellate Court only in the event,
a substantial question of law arises for its consideration.
11. The High Court framed only one substantial question
of law, viz., whether the Will had been i:luly proved and/ or was 8
otherwise genuine.
It is essentially a question offact. The learned Trial Judge
..:+ as also the first Appellate Court in opining that the Will was genu-
ine and free from suspicious circumstances inter alia took into
consideration the existing materials on record, viz., the parties
c
ordinarily do not want their agricultural land to go out from the
family and in that view of the matter if Kehar Singh had be-
queathed his agricultural land only in favour of his sons and ex- ,
eluding the daughters from inheritance, no exception thereto
D
. could be taken.
12. The learned Trial Judge as also the first Appellate Court
also took into consideration the fact that the villagers in great
numbers were present at the time of execution of the Will and in
fact Sarpanch himself scribed the same. Furthermore, the fact E
that at least in respect of the properties situate in village Lohgarh
the order of mutation was passed in favour of the sons in the
year 1970 and the same was not challenged, also was taken
into consideration that the Will must be held to be ·genuine.
13. As regards proof of Will, as statutorily required in terms F
of Section 63 (c) of the Indian Succession Act, it was categori-
cally held by the learned first Appellate Court:
• ... The execution of the Will Ex. D-1, dated 14.5.1969,
was proved by Rur Singh, DW-1, Kapoor Singh, DW-2,
G
and Hema Ram, DW-3, attesting witnesses thereof. Their .
1 evidence goes to prove that the Will was scribed by
Gurbachan Singh, Sarpanch, at the instance of Kehar
Singh. After scribing the Will, the contents thereof were
read over and explained to Kehar Singh, who admitted
H
114 SUPREME COURT REPORTS [2009] 2 s. c. R.

A the same to be correct, and thumb marked the same, In
tha presence of Rur Singh, DW-1 & Kapoor Sing ti DW-2,
Hem Raj DW-3, Prem Chand, Gurbachan Singh and Piara
Singh, attesting witnesses. It is further proved from the
evidence of Rur Singh, DW-1, Kapoor Singh, DW-2 and
8 Hema Ram (DW-3) that Kehar Singh thumb marked the
Will, In token of its correctness, in their presence and in
the presence of other witnesses, whereas they signed
· and thumb marked the same, lri the presence of the .
testator. It is also proved from the evidence of these
witnesses, that Kehar Singh, was in sound disposing mind,
c
at the time of execution of the Will dated 14.5.1969 Ex. D-
1. lri fact; the perusal of the Will, Ex. D-1, reveals that it
was executed by Kehar Singh, in the presence of the entire
Panchayat of the village. No doubt, Rur Singh, DW-1, is
the son of Kehar Singh, and is one of the beneficiaries,
D
residing with him, in the ·same house and serving him
throughout his lifetime. That, however, does not make his
evidence unbelievable. Since, he was residing, in the same
house, with Kehar Singh, and was serving him, his
presence at the time of the execution of the Will was natural
·E and probable, and that was why he signed the same, as
an attesting witness .. ."
As Bachan Kaur, respondent tierein was comfortably mar-
ried, if the testator thought it proper to exclude her from his ag-
F ricultural property bequeathing the same in favour of his sons,
as has been stated in the Will, no exception thereto could be
taken.
14. The High Court essentially entered into the arena of
appreciation of evidence. It interfered with the concurrent find-
G ings of fact_arrived at by the courts below.
: Execution of a Will is required to be proved in terms of the
provisions of Section 63(c). of the Indian Succession Act and
Section 68 of the Indian Evidence Act.
H The statutory requirements to prove a Will in terms of the
RUR SINGH (D) TH. LRS. & ORS. V. 115
BACHAN KAUR [S.S. SINHA, J.]

aforementioned provisions have been laid down in a large num- A
.r ber of decisions. We may notice a few of them.
In Janki Narayan Bhoirv. Narayan Namdeo Kadam, [(2003)
2 SCC 91), while dealing with the question elaborately, this Court
held:
B
"8. To say will has been duly executed the requirement
mentioned in Clauses (a), (b) and (c) of Section 63 of the
Succession Act are to _tie _complied with i.e:, (a) the testator
c, has to sign or affix his mark to the will, or it has got to be
signed by some other person in his presence and by his c
direction; (b) that the signature or mark of the testator, or
the signature of the person signing at his direction, has to
appear at a place form which it could appear that py that
mark or signature the document is intended to have effect '
- as a will; (c) the most important point with which we are
0
presently concerned in this appeal, is that the will has to
,.; be attested by two or more witnesses and each of these
witnesses must have seen the testator sign or affix his
mark to the Will, or must have seen some other person
sign the Will in the_ presence and by the direction of the
testator, or must have received from the testator a personal E
acknowledgement of signature or mark, or of the signature
of such other person, and each of the witnesses has to
sign the Will in the presence of the testator."
· As regards compliance of the provision of Section 68 of F
the Evidence Act, it was opined :-
"In a way, Section 68 gives a concession to those who
want to prove and establish a will in a Court of law by
exalJiinin!J at_ least one attesting witness even though will
,.; hlls to be· attested at least by two witnesses mandatorily G
1 under Section 63 cif the Succession Act. But what is
significant and to be noted is that that one attesting witness
· examined·snould be in a position to prove the execution
of a will. to put in other words. if one attesting witness can
prove execution of the will in terms of Clause (c) of Section H
116 SUPREME COURT REPORTS [2009] 2 S.C.R.

A 63, viz., attestation by two attesting witnesses in the manner
)'.
contemglated therein, the examination of other attesting
witness can be dis12ensed with. The one attesting witness
examined, in his evidence has to satisfv the attestation of
a will by him and the other attesting witness in order to
8 grove there was due execution of the will. If the attesting
witness examined besides his attestation does not, in his
evidence, satisfy the requirements of attention of the will
by other witness also it falls short of attestation of wBI at
l-
least by two witnesses for the simple reason that the ,·

execution of the will does not merely mean the signing of
c it by the testator but it means .fulfilling and proof of all the
formalities required under Section 63 of the Succession
Act. Where one attesting witness examined to prove the
will under Section 68 of the Evidence Act fails to prove the
due execution of the will then the other available attesting
D
witness has to be called to supplement his evidence to
make it complete in all respects. Where one attesting
witness is examined and he fails to prove the attestation
of the will by the other witness there will be deficiency in
meeting the mandatory requirements of Section 68 of the
E Evidence Act."
(Emphasis supplied)
Following the said decision, as also the other decisions in
Benga Behera & Anr. v. Braja Kishore Nanda & Ors. [2007 (7)
F SCALE 228], this Court held:
" ... Execution of a Will must conform to the requirement of
., Section 63 of the Succession Act, in terms whereof a Will
must be attested by two or more witnesses. Execution of
f
a Will, however, can only be proved in terms of Section 68
G
of the Indian Evidence Act. In terms of said provision, at -f
least one attesting witness has to be examined to prove
execution of a Will."
Yet again, recently in Anil Kak v. Kumari Sharada Raje &
H Ors. [(2008) 6 SCALE 597], it was opined :
RUR SINGH (D) TH. LRS. & ORS. V. 117
BACHAN KAUR [S.B. SINHA, J.]

"40. Whereas execution of any other document can be A
proved by proving the writings of the document or the
contents of it as also the execution thereof, in the event
there exists suspicious circumstances the party seeking
to obtain probate and/ or letters of administration with a
c0py of the Will annexed must also adduce evidence to B
the satisfaction of the court before it _can be accepted as
genuine.

41. As an order granting probate is a judgment in rem, the
court must also satisfy its conscience before it passes an C
order.

It may be true that deprivation of a due share by the natural
heir by itself may not be held to be a suspicious
circumstance but it is one of the factors which is taken into
consideration by the courts before granting probate of a D
Will.
Unlike other documents, even animus attestandi is a
necessary ingredient for proving the attestation."

[See also Lalitaben Jayantilal Popat v. Pragnaben E
Jamnadas Kataria & Ors. 2009 (1) SCALE 328].

15. The Will was scribed in the house of the testator. From
the deposition of the witnesses, the learned Trial Judge as also
the first Appellate Court came to the conclusion that he was in a F
sound disposing mind. The Will was scribed by the Sarpanch.
As many as ten witnesses attested the Will; nine of them being
independent witnesses. Execution of the Will as also attesta-
tion thereof by the witnesses was concluded in one go. The tes-
tator and all the witnesses were present throughout the said G
transaction. It is in the aforementioned situation, the learned first
Appellate Court had arrived at a categorical finding of fact that
the statutory requirements had been complied with as more than
one witness had attested the execution of the Will not only in
presence of the testator but also in presence of each other. H
118 SUPREME COURT REPORTS [2009] 2 S.C.R.

A 16. The High Court unfortunately even did not choose to
assign any reason In support of Its conclusion that the statutory
requirements contained In Section 63(c) of the Indian Succes-
slon Act had not been complied with. The oral evidence ad-
duced on behalf of the parties had not been discussed far less
B analysed. How and In what manner the ~tatutory requirements
had not been complied with was not stated.
17. The High Court omitted to notice that at least In re-
~
spect of the properties situate In one village the order of muta-
c tlon was passed in the year 1970, I.e., Immediately after the
execution of the Will.
The High Court furthermore failed to take into consider-
atlon that at least In regard to the said order of mutation, the
respondent did not carry the matter to the appellate court or
D question the validity thereof by filing a suit.
,__

18. The suit was filed in the year 1983. It was also not the
case of the respondent that she had been getting share of the
yields from the said agricultural properties.
E Only because one of the beneficiaries attested the Wiii, ~
'
the same would not mean that he had taken active part In It. In
any event, the learned Trial Judge as also the first Appellate
Court found sufficient explanation therefor holding that as the ).

Will was executed In testator's house and he had been llvlng
F Jointly with his sons, their presence In the house was natural.
19. We have noticed herelnbefore that the Wiii was at-
tested by nine Independent persons. Three of them In fact had
been examined. The High Court whlle holding that a doubt Is
G cast on Its valldlty by reason of active participation of 01ie of the
sons, failed to notice that nine other Independent witnesses at-
tested the Wiii. We, therefore, fall to attach much Importance to
the fact that although Gurbachan Singh, Sarpanch scribed the
Wiii in Urdu, he at more than one place signed In English. In a
H village, a person may be more proficient In the vernacular Ian-
RUR SINGH (D) TH. LRS. & ORS. V. 119
BACHAN KAUR [S.B. SINHA, J.J
guage than Engllsh although he may be able to sign his name A
.X
In English.
20. If the Wiii was otherwise proved to be genuine and the
statutory requirements therefor were satisfied, in our opinion,
only because the panchayat register was not produced, the
same by Itself would not lead to the conclusion that the Wiii would B
be held to have not been executed, particularly when two courts
competent to arrive at findings of fact held It otherwise.
21. For the reasons aforementioned, the impugned judg·
ment cannot be sustained and Is set aside accordingly. The c
appeal Is allowed. However, In the facts and circumstances of
the case, there shall be no order as to costs.
N.J. Appeal allowed.