In RSA-2954-2011 (O&M)-PUNJ HC- Section 63 (c) of Indian Succession Act, 1925 recognizes that both attesting witnesses are not required to be present at same time: P&H HC Justice Anil Kshetarpal [20-04-2022]

Read Order: Gadhori Devi and Others v. Naraini Devi and Others

Monika Rahar

Chandigarh, May 19,2022: The Punjab and Haryana High Court has recently held that in ordinary parlance the attestation of a document by a witness means that he has either seen the testator sign or thumb mark the Will or has received his personal acknowledgement and he himself signs or thumb marked the Will, in the presence of the testator. 

The Bench of Justice Anil Kshetarpal added, “Section 63 (c) of the [Indian Succession Act, 1925] recognizes that both the attesting witnesses are not required to be present at the same time.”

While assailing the concurrent findings of facts arrived at by the courts below, the first plaintiff filed the instant Regular Second Appeal. 

Initially, a suit was filed by the plaintiffs for the grant of a declaration that the plaintiffs, defendants and proforma defendants were joint owners in possession of the land left by Sh. Shish Ram and the registered Will (first Will) of 1992 was null and void. This suit was dismissed. 

The plaintiffs claim that the registered Will of 1992 was never executed by their father Shish Ram who died in May of 2002. The plaintiffs claimed that the mutation entered by the revenue authorities on the basis of the registered Will was wrong and late Sh. Shish Ram was more than 80 years of age, besides being infirm and of unsound mind. It was further claimed that the Will was executed by playing undue influence and pressure and Sh. Shish Ram had no reason to disinherit the plaintiffs and the proforma defendants.

The suit was contested by the first defendant asserting that Sh. Shish executed the Will of his free will and volition and he was a vigilant person, who made efforts to protect his property. It was also asserted that the first defendant along with her children used to reside with Sh. Shish Ram and in proof of that the ration card etc. were produced. It was her defence that Sh. Shish Ram executed the Will in her favour as she and her children served him for quite some time and she along with her children was in the cultivating possession of the land.

The first defendant, in support of her case, examined the scribe and the attesting witness of the Will. The Will was attested by two attesting witnesses.  At the time of registration, Sh. Shish Ram put his left thumb impression whereas both the witnesses put their thumb impressions respectively. 

Before the High Court, the Counsel representing the appellants contended that the only one of the attesting witnesses of the alleged Will was examined and he failed to prove the execution and attestation of the Will in accordance with Section 63 (C) of the Indian Succession Act, 1925 (‘the 1925 Act’). While elaborating, he submitted that Section 68 permits the propounder to examine one attesting witness out of more than one but he is required to prove not only the execution of the Will but also attestation of the Will in terms of Section 63 (C) of the 1925 Act, failing which the propounder fails to prove the Will, in accordance with the law.

Per contra, the first respondent contended that one of the attesting witnesses, while deposing in court, fulfilled the requirement of Section 63 (C) of the 1925 Act. He submitted that the executant, as well as both the attesting witnesses, were present at the time of execution and registration of the Will and they signed the Will in the presence of each other. He submitted that therefore, a hyper-technical view should not be taken.

After considering these submissions, the Court perused the deposition of Ram Kishan, Nambardar of the village wherein he stated that the Will was scribed on the instructions of Sh. Shish Ram and the scribe, after scribing the Will, read over the Will clearly and made everyone understand the Will. After admitting its contents to be correct, Sh. Shish Ram put his thumb impression and he and Baru also put their respective thumb impressions. 

He further emphasized that all the witnesses put their thumb impression then and there. He further stated that at the time of registration, the Tehsildar read over the Will and they thumb marked the Will in the presence of the Registrar. He further deposed three persons, apart from the scribe, were present at the time of the execution of the Will before the Registrar. He also stated that he thumb marked the Will twice, once in the presence of the scribe and second before the Registrar, at the time of its registration.

Further, the Court added that in the considered view of the Court, a registered Will executed by the testator is a solemn document and a registered document has the presumption of correctness. 

Coming back to the present case, the Court opined that out of the six daughters, Shish Ram only gave the property to the beneficiary of the Will, along with her children, who used to stay with Shish Ram. The Court further noted that Shish Ram remained alive for a period of more than 10 years after the Will was allegedly executed. Further, the Court noted that no evidence was produced to prove that the Will was not thumb marked by Shish Ram and that there was also no evidence to prove that the Will was a result of undue influence or pressure. 

In light of the above, the Court opined, on repeatedly reading the deposition of one of the attesting witnesses, that he fulfilled the requirements of not only Section 63 (C) of the 1925 Act but also proved the Will in accordance with Section 68 of the Indian Evidence Act, 1872. 

Additionally, on a careful reading of Section 68 of the 1872 Act, the Court added that it is not only required to prove the execution of the document but also its attestation. The last part of Section 63 clearly provides that the Will shall not be required to be attested in any particular form of attestation, asserted Justice Kshetarpal. 

In ordinary parlance, the Court added, the attestation of a document by a witness means that he has either seen the testator sign or thumb mark the Will or has received his personal acknowledgement and he himself signs or thumb marked the Will, in the presence of the testator. Section 63 (c) of the 1925 Act recognizes that both the attesting witnesses are not required to be present at the same time, held the Court. 

In the present case, the Court noted that the executant, as well as both the attesting witnesses, were present not only at the time of execution of the Will by the scribe but they were also present at the time of its registration. 

It was also observed that Sh. Ram Kishan, Nambardar, specifically stated that Sh. Shish Ram put his thumb impression after the scribe read over the Will in their presence. Thereafter, they put their respective thumb impressions. Also, Justice Kshetarpal added that in cross-examination, he clarified that at the time of execution and registration of the Will, all the three, namely the executant and both the attesting witnesses along with the scribe, were present at the time of registration. 

“Obviously, they have thumb marked the Will in the presence of each other. In such circumstances, the Court cannot be expected to be oblivious of the fact that once all the three are present at one point in time and had thumb marked the Will in the presence of each other, then each of them, has seen the other to thumb mark the Will.

In this light, it was held,

“Once they were present at one point of time and had thumb marked the Will in the presence of each other, then the attestation of the Will by both the witnesses is proved, particularly, when no particular form of attestation is required.”

Therefore, finding no merit, the Regular Second Appeal was dismissed.