TaxTMI 
TaxTMI 
2025 (1) TMI 1849
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....id Lower Appellate Court had set aside the decree of the Civil Court [Civil Suit No. 282 of 2006, judgment dated 24th February 2011 delivered by Civil Judge, Senior Division, Gurdaspur] which had found that the Will and the subsequent mutation of the properties enumerated therein was bad in law, as the Will was "illegal", "null" and "void". The question that falls for our consideration is- "What do the words "by the direction of the testator" as they appear in Section 63 (c) of the Indian Succession Act, 1925 mean? Is the term to be interpreted liberally or strictly? Consequently, was the High Court correct in holding, in agreement with the Civil Court, that the Will, subject matter of dispute, stood not proved?" 2. Facts, shorn of unnecessary details, as they appear from the record are as follows: - 2.1 Sanjhi Ram [Testator], was the owner of 1/4th share of land measuring 40 canals, 3 marlas, comprised in Khewat no.7, Khatauni no.9, Rett no. 9, Kila no. 9/8 situated in the Revenue Estate of Village Umarpura, Khurd, Tehsil and District Gurdaspur, Punjab. His share in the aforesaid property was to the extent of 10 canals and 1 marla [Suit property]. 2.2....
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....in the left margin and further the place the thumb mark alleged to be of Sanjhi Ram make the will suspicious which cannot be relied on." 4. On appeal the Lower Appellate Court relied on a judgment returned by a Division Bench of the High Court of Judicature at Allahabad and one judgment of the Rajasthan High Court to hold that even if the Testator was ill, so long as his mental faculties were not affected, no inference could be drawn that he was not of sound state of mind or that he could not execute a Will. In the facts of the instant case, it was observed that nowhere did the case record reflect that Sanjhi Ram's mental faculties were in any way questionable nor was he disoriented or affected by illness. In regard to other observations of the Civil Court reproduced (supra) the Lower Appellate Court held as under:- "16. As noted above, learned Lower Court had found the Will Ex.D1 suspicious also for the reason that the spacing in between last lines in this Will was narrower than the space available between lines in remaining upper part of this Will. In this context learned counsel for the appellants has relied upon Judgment Bahadur Singh versus Poonam Sin h & Ors, (Sup....
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.... (a) The testator shall sign or shall affix his mark to the Will, 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 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 the presence and by the direction of the testator, or has received from the testator a personal acknowledgement 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 more than one witness be present at the same time, and no particular form of attestation shall be necessary." (emphasis supplied) As seen above, Section 63(c) enumerates five distinct situations: A is the testator of the Will in question. B and C have signed the Will. For B and C to qualify as attestors,- Situation 1: Each of them has to have seen....
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....xecution of the will, at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined; 10.5. The attesting witness should speak not only about the testator's signatures but also that each of the witnesses had signed the will in the presence of the testator; 10.6. If one attesting witness can prove the execution of the will, the examination of other attesting witnesses can be dispensed with; 10.7. Where one attesting witness examined to prove the will fails to prove its due execution, then the other available attesting witness has to be called to supplement his evidence; 10.8. Whenever there exists any suspicion as to the execution of the will, it is the responsibility of the propounder to remove all legitimate suspicions before it can be accepted as the testator's last will. In such cases, the initial onus on the propounder becomes heavier; 10.9. The test of judicial conscience has been evolved for dealing with those cases where the execution of the will is surrounded by suspicious circumstances. It requires to consider factors such as awareness of the testator as to the co....
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.... of our Village. He was residing at Gopal Krishan. Sanjhi Ram died issueless. His wife is predeceased him. Gopal Krishan used to serve deceased Sanjhi Ram and was looking after him. Shri Sanjhi Ram who was real uncle of Gopal Krishan, while possessed of sound disposing mind, executed a valid Will on 7.1.2005 in favour of Gopal Krishan. I have seen the original WILL which bears my thumb impression. The WILL is Ex.D.1. The same was scribed by the Deed Writer at the instance of Shri Sanjhi Ram. He further scribing the same, read over and explained the contents of the WILL Ex.D1. Sh. Sanjhi Ram after admitting the contents of the WILL, appended his thumb impression in my presence and as well as in the presence of other attesting witness Sh. Tarsem Lal and thereafter I and other attesting witness put my thumb impression and signature respectively. On the basis of WILL Ex.D.1 Shri Gopal Krishan defendant is owner in possession of the land of the land of Shri Sanjhi Ram. The Plaintiffs have got no right, title or interest in the land let by Shri Sanjhi Ram. ..." (emphasis supplied) 13. The language of Section 63(c)of the Act uses the word 'OR'. It states that each Will shall be atte....