A) ABSTRACT / HEADNOTE

The dispute concerns the validity of a Will dated 7 November 2005 executed by Sanjhi Ram (the Testator) who died on 8 November 2005. The Testator, owner of a one-fourth share in a parcel of land, left the share in favour of his nephew Gopal Krishan by the Will; thereafter Gopal Krishan conveyed the property to his sons and later sold it. Respondent-claimants challenged the Will as forged and fabricated, and sought declaration that the subsequent mutations and sale were void. The trial court rejected the Will; the lower appellate court reversed and held the Will genuine; the High Court in second appeal set aside that verdict, holding that the attesting witness’ deposition did not establish that the thumb-impression was affixed “by the direction of the testator” as required (per the High Court’s reading) under Section 63(c) of the Indian Succession Act, 1925.

The Supreme Court examined the statutory text and precedents, emphasising the disjunctive quality of “or” in Section 63(c) and the settled rule that a witness who has seen the testator sign or affix his mark satisfies the statutory attestation requirement. The Court held that the testimony of the attesting witness (DW-1) that he saw the deceased affix his mark complied with Section 63(c) and therefore reinstated the lower appellate court’s decision validating the Will and upholding subsequent transactions. The judgment clarifies that the phrase “by the direction of the testator” applies where an attestor sees some other person sign the Will; it need not be read as an independent additional requirement where the witness directly sees the testator sign or affix his mark.

Keywords: Will; Section 63; Attesting witness; Direction of the testator; Thumb impression; Proof of execution.

B) CASE DETAILS

C) INTRODUCTION AND BACKGROUND OF JUDGMENT

The case arises from a civil suit challenging a Will executed on 7 November 2005 and its consequent mutation and transfers. The Testator, Sanjhi Ram, held 10 canals and 1 marla (one-fourth of the larger holding) and, being issueless and resident with his nephew Gopal Krishan, executed the Will in question. After the Testator’s death on 8 November 2005, the propounder received the estate under the Will, transferred it to his sons and sold it. The plaintiffs (respondents here) instituted Suit No. 282 of 2006 alleging that the Will was forged, that mutation was consequent to a void instrument, and that they retained title.

The trial court found the Will suspicious and unreliable because of circumstances such as the Testator’s illness, anomalous spacing on the single-page Will and the thumb impression and scribe’s adjustments; it therefore declared the Will invalid. The lower appellate court reversed, relying on authority that illness does not ipso facto negate testamentary capacity and that close spacing at page end is not fatal to genuineness. The High Court in second appeal, however, granted allowance to respondent‐plaintiffs by reading Section 63(c) strictly: it concluded the attesting witness had not expressly stated that the affixing of his thumb impression occurred “by the direction of the testator”, invoking precedents to set aside the lower appellate court.

The Supreme Court framed the pivotal question as the meaning and reach of “by the direction of the testator” in Section 63(c) and whether the High Court correctly held the Will unproved. The analysis required textual construction of the disjunctive statutory language, assessment of the attestor’s testimony, and application of settled principles on proof of Wills, judicial conscience and suspicious circumstances.

D) FACTS OF THE CASE

Sanjhi Ram owned a one-fourth share in agricultural land situate at Village Umarpura, Tehsil Gurdaspur; he had no heirs issue and lived with his nephew Gopal Krishan. On 7 November 2005 a Will (single page) was executed, and the Testator died the next day on 8 November 2005; the death certificate bears 19 November 2005. The Will purportedly bequeathed the Testator’s share to Gopal Krishan. After probate was not obtained but the propounder acted on the Will, Gopal Krishan conveyed the property to his four sons by sale deed dated 16 January 2006, and the property was further sold on 3 February 2006 for Rs. 98,000/-.

Respondent-plaintiffs filed suit alleging forgery and fraudulent mutation and sought declaration of title. At trial the plaintiffs relied upon suspicious circumstances:

(a) the Testator’s ill health on the date;

(b) variations in spacing on the single page Will tightening of lines toward the end;

(c) alleged irregularity in the scribe’s adjustment of seal and thumb impression;

(d) lack of contemporaneous registration.

The attesting witness Janak Raj (DW-1) stated he saw the Testator admit contents and affix his thumb impression, the scribe read and explained the Will, and thereafter the attesting witnesses affixed their thumb impressions and signatures. The trial court found suspicion warranted and rejected the Will; the first appellate court accepted the attestor’s testimony and upheld the Will; the High Court reversed on the narrow ground that the attestor did not depose that his impression was affixed “on the direction of the testator”, invoking earlier authority. The Supreme Court re-examined whether the statutory text required such an express direction where the attestor himself saw the testator sign or mark.

E) LEGAL ISSUES RAISED

i. Whether the words “by the direction of the testator” in Section 63(c) of the Indian Succession Act, 1925 must be read as an independent requirement even when an attesting witness has seen the testator sign or affix his mark?
ii. Whether the testimony of an attesting witness who saw the testator affix his mark satisfies Section 63(c) and dispels suspicious circumstances?
iii. What is the role of the test of judicial conscience and the onus on the propounder when suspicious circumstances surround execution of a Will?

F) PETITIONER / APPELLANT’S ARGUMENTS

The counsel for appellants contended that the attesting witness’ clear deposition that he saw the Testator append his thumb impression after the scribe read and explained the instrument satisfied Section 63(c) which disjunctively requires that an attestor has seen the testator sign or affix his mark. It was urged that the High Court erred in reading “or” as “and” and in importing an extra statutory requirement of an express direction where no third-person signing was involved. Reliance was placed on the settled principle that the ordinary grammatical meaning of statutory words should be respected and that the propounder had discharged the burden by producing an attesting witness alive and available to testify to the testator’s signature/mark.

G) RESPONDENT’S ARGUMENTS

The counsel for respondents emphasized surrounding suspicious circumstances testator’s illness, compressed spacing on the single-page Will, and historical irregularities—and relied on authority which in their submission required attestation evidence to specify that the act of affixing signatures or marks occurred by the direction of the testator. The High Court’s approach was invoked: in cases where attestors did not depose that the signature/mark was placed on the testator’s direction, the statutory requirement (as read in those precedents) remained unfulfilled and the Will could not be proved. The respondents urged that the trial court’s findings of suspicion warranted rejection of the instrument.

H) RELATED LEGAL PROVISIONS 

i. Section 63, Indian Succession Act, 1925 — procedure for execution and attestation of unprivileged wills; disjunctive requirements under Section 63(c).
ii. Principles on proof of Wills and test of judicial conscience as summarized in Meena Pradhan v. Kamla Pradhan and Shivakumar v. Sharanabasappa — burden on propounder and standards where suspicious circumstances exist.

I) JUDGMENT 

The Supreme Court held that the High Court misread Section 63(c) by treating the word “or” as if it were “and”, thereby importing an unnecessary requirement. The Court explained that Section 63(c) sets out three alternative modes to satisfy attestation: (1) witness having seen the testator sign or affix his mark; (2) witness having seen some other person sign the Will in the presence and by the direction of the testator; or (3) witness having received a personal acknowledgment from the testator of his signature or mark. The Court reasoned that the phrase “by the direction of the testator” is relevant only to the second alternative (i.e., where some other person signs) and is not an independent overlay on the first alternative.

The Supreme Court scrutinised DW-1’s deposition wherein he stated that the Deed Writer scribed at the instance of Sanjhi Ram, read and explained the contents, the Testator admitted the contents and appended his thumb impression in the presence of the attesting witness and another attestor, and thereafter the attesting witness put his thumb impression and signature. On that basis the Court held statutory compliance established. The Court also surveyed jurisprudence on the proof of Wills, including the doctrine that the propounder must dispel real and germane suspicious circumstances; but found that the present evidence met the statutory touchstone. Consequently, the Supreme Court set aside the High Court’s order, restored the lower appellate court’s decree validating the Will and upheld the subsequent sale deeds executed by Gopal Krishan. The appeal was allowed.

a. RATIO DECIDENDI

The dispositive ratio is that Section 63(c) is to be read disjunctively: an attesting witness who has seen the testator sign or affix his mark satisfies the statutory attestation requirement and there is no legal necessity to establish that an affixing of mark was done “by the direction of the testator” unless the evidence involves some other person signing on the testator’s behalf. The statutory grammar and ordinary meaning of “or” preclude reading the provision conjunctively. This textualist approach, coupled with the witness’ direct testimony of seeing the Testator affix his mark, sufficed to prove execution.

b. OBITER DICTA 

The Court reiterated settled principles: the test of judicial conscience governs acceptance of Wills touched by suspicious circumstances; the propounder’s onus rises where suspicion exists; but suspicions must be real, germane and valid, not fanciful. The Court clarified the limited role of the phrase “direction of the testator” and cautioned against over-literal or strained constructions that would import additional burdens not contemplated by the statute. The decision also re-affirmed the rule that where one attesting witness is alive and capable, his evidence may suffice to prove a Will.

c. GUIDELINES 

i. Read Section 63(c) disjunctively; do not convert “or” into “and” unless legislative intent or absurdity compels.
ii. Where attesting witness testifies to seeing the testator sign/mark, proof of execution is achieved even if witness does not state an express “direction” by the testator.
iii. If attestation involves another person signing on testator’s behalf, then evidence must show that such signing occurred in the presence and by the direction of the testator.
iv. Where suspicious circumstances exist, propounder must present cogent explanation to dispel legitimate doubts; the judicial conscience test remains applicable.

J) CONCLUSION & COMMENTS

The Supreme Court’s decision restores a pragmatic balance between strict formalism and common-sense proof of testamentary acts. By insisting on the plain disjunctive reading of Section 63(c), the Court prevents conversion of procedural alternatives into cumulative hurdles that would unduly impede recognition of genuine testamentary instruments. The judgment underscores two complementary truths: first, statutory grammar matters “or” carries operative meaning and second, fact-sensitive scrutiny of evidence remains essential where suspicion lingers. For practitioners, the case reinforces the centrality of live attesting witness evidence and the need for the propounder to eliminate real and germane suspicious circumstances by adducing convincing facts. In legacy litigation, careful attention to the precise wording of witness depositions (to show the testator’s act) will often determine outcomes rather than formalistic invocations of the phrase “by the direction of the testator”.

K) REFERENCES

a. Important Cases Referred

1. Meena Pradhan & Ors. v. Kamla Pradhan & Anr., (2023) 9 SCC 734.

2. Shivakumar & Ors. v. Sharanabasappa & Ors., [2020] 6 SCR 666 : (2021) 11 SCC 277.

3. Janki Narayan Bhoir v. Narayan Mandeo Kadam, [2002] Supp. 5 SCR 175 : (2003) 2 SCC 91.

4. Pankajakshi (Dead) through LRs v. Chandrika & Ors., [2016] 3 SCR 1018 : (2016) 6 SCC 157.

b. Important Statutes Referred

1. Indian Succession Act, 1925, Section 63 (Execution of unprivileged Wills).