BHAGAT RAM AND ANR. versus SURESH AND ORS.

Citation: [2003] SUPP. 6 S.C.R. 216 · Decided: 25-11-2003 · Supreme Court of India · Bench: R.C. LAHOTI · Disposal: Dismissed
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Judgment (excerpt)

A 
BHAGAT RAM AND ANR. 
V. 
SURESH AND ORS. 
NOVEMBER 25, 2003 
B 
[R.C. LAHOTI AND ASHOK BHAN, JJ.] 
Indian Succession Act, 1925-Sections 2(b), 2(h), 63, 64 & 701 Indian 
Evidence Act, 1872-Sections 68 & 114-Will executed by testator attested 
by two witnesses-Codicil, which is inconsistent with the Will, recorded 
C and signed by testator in presence of Reigstrar of Deeds and attested by 
one witness only-Registrar of Deeds signing the codicil-Proof of execution 
of codicil-Held, Codicil is required to be executed and proved as will-
On facts, attesting witness and Registrar of Deeds were not examined in 
witness box and hence the codicil not proved-Indian Registration Act, 
D 1908; Sections 52 & 58. 
Appellants are the sons of late M. Respondent No. 3 is the widow 
of M.M. executed a Will in favour of respondent No. 3 appointing her 
to be the sole heir and successor to the suit property. It was attested 
E by two witnesses. The Will was presented for registration. Registrar 
of Deeds read out the contents of the Will to the executant. M made 
an oral statement to the Registrar which is in departure from the 
contents of the Will. The statement was recorded and was signed by 
M and attested by the one witness. The Registrar of Deeds has put his 
signature below the endorsement which incorporates the statement 
F made by M. Thereafter, the Will was registered. After the death of M, 
respondent No. 3 got her name mutated over the suit property and 
transferred it by a registered Deed of Sale in favour of respondent Nos. 
1 and 2. The appellants filed a suit for declaration for title and for 
issuance of preventive injunction by way of consequential relief against 
G respondent Nos. 1 and 2. The appellants contended before the trial 
court that the Will has to be read alongwith the statement made by 
M. and recorded by the Registrar of Deeds; that the two formed part 
of one document and hence, respondent No. 3, who succeeded only to 
a life estate without any right to alienation, could no sell the suit 
H property to respondents I and 2. The suit of the appellants was 
_, 
j 
BHAGAT RAM v. SURESH 
217 
dismissed by the trial court. The decree of the trial court has been A 
upheld by first appellate court and High Court. 
In appeal, the appellants contended that the statement by M 
recorded by the Registrar of Deeds and attested by one witness 
amounts to a codicil; that the Will and the codicil formed part of one 
document; that the codicil has to be given effect to as duly executed B 
since it is registered -.llong with the Will; that the codicil does not 
require attestation by two witnesses; that the codicil need not be 
executed and proved under Indian Succession Act, 1925 and Indian 
Evidence Act, 1872 like a Will; that the signature of the Registrar of 
Deeds can be taken to be attestation by a second witness; that there. C 
is nothing in law to debar a Registrar of Deeds from acting as an 
attesting witness; that the Registrar can act in personal capacity as 
attesting witness while registering the document in official capacity. 
Dismissing the appeal, the Court 
HELD : 1.1. A codicil, though it may have been executed 
separately and at a place or time different from the Will, forms part 
D 
of the Will. It would be anomalous to accept that though a Will is 
required to be executed and proved as per the rules contained in the· 
Indian Succession Act, 1925 and Indian Evidence Act, 1872, a document E 
explaining, altering or adding to the Will and forming part of the Will 
is not required to be executed and proved in the same manner. The 
same rules of execution are applicable to a codicil which apply to a will 
to which the codicil relates. The evidence adduced in proof of execution 
of a codicil must satisfy the same requirements as apply to proof of F 
execution of a will. [226-B-El 
Williams, The Law of Wills, (1987) Edn. Vol. 1 Page 161, 165 and 
Mantha Ramamurthi's Law of Wills, Sixth Edition Page 322, referred to. 
1.2. So far as codicil is concerned, it can be said to have been G 
dictated by M in the presence of the attesting witness and the Registrar 
-~ of Deeds. The statement having, been recorded, M signed the same in 
the presence of the attesting witness and the Registrar. The attesting 
witness and the Registrar having seen M signing on the document, both 
of them put their signatures op the document obviously with a view to H 
218 
SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R. 
A attesting the si
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