LALITABEN JAYANTILAL POPAT versus PRAGNABEN JAMNADAS KATARIA & ORS.

Citation: [2008] 17 S.C.R. 1500 · Decided: 19-12-2008 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed

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Judgment (excerpt)

[2008] 17 S.C.R. 1500 
A 
LALITABEN JAYANTILAL POPAT 
v. 
PRAGNABEN JAMNADAS KATARIA & ORS. 
,.. 
(Civil Appeal No. 7434 of 2008) 
DECEMBER 19, 2008 
B 
[S.B. SINHA AND CYRIAC JOSEPH, JJ.) 
EVIDENCE ACT, 1872: 
s. 68 - Proof of execution of Will - One of the attesting 
~ 
c witnesses, who alone was examined, did not corroborate the 
-.\,, 
declaration made in the Will by its testator that he had signed 
before both the witnesses and that both of them signed before 
him - The witness stated that he was alone with testator who 
had already put his signature - HELD: It is evident that other 
D 
person did not put his signature on the Will as an attesting 
witness - Execution of Will has, therefore, not been proved -
Succession Act, 1925 - s.63. 
In the instant appeal against the order granting 
probate of a Will dated 18.6.1995 propounded by the 
y-
E 
respondents, it was contended for the appellant that the 
requirement of attestation of the Will by two or more 
witnesses as envisaged by s.63(c) of the Succession Act, 
1925 were not proved in terms of s.68 of the Evidence Act, 
1872. 
/ 
Allowing the appeal, the Court 
F 
HELD:1.1. Provisions of s.63 of the Succession Act, 
1925 are mandatory in nature. A Will is .required to be 
~ 
attested by two or more witnesses. Section 68 of the 
Evidence Act, 1872 provides that the propounder must 
prove execution and attestation of the Will by examining 
G at least one of the attesting witnesses. The question as 
to whether due attestation has been established or not 
will depend upon the fact situation in each case. [Para 9 
t 
and 16) (1506-H; 1507-A] 
Babu Singh & Ors. v. Ram Sahai @ Ram Singh 2008 
H 
1500 
I 
LALITABEN JAYANTILAL POPAT v. PRAGNABEN 
1501 
JAMNADAS KATARIA & ORS. 
(7) SCALE 7 43; Apoline D'Souza v. John D'Souza (2007) 7 A 
SCC 225 and B. Venkatamuni v. C.J. Ayodhya Ram Singh 
& Ors. (2006) 13 sec 249, relied on. 
1.2. It is a trite law that execution of a Will must be 
held to have been proved not only when the statutory 
requirements for proving the Will are satisfied but the Will 
.B 
is also found to be ordinarily free from suspicious. 
circumstances. When such evidences are brought on 
record, the court may take aid of the presumptive 
evidences also. Whether a Will is surrounded by 
suspicious circumstances or not is essentially a question c 
of fact. In the instant case, there were a large number of 
suspicious circumstances appearing on the face of the 
Will. Inferences of suspicious circumstances must be 
drawn having regard to the evidence of the witness 
examined. Even the statutory requirements for proof of 
the Will have not been complied with. [Para 14] [1512-A-
D 
BJ 
Ramabai Padmakar Patil (Dead) through LRs. & Ors. v. 
---1 _ Rukminibai Vishnu Vekhande & Ors. (2003) 8 SCC 537, held 
· ·- inapplicable ... ".' -·-~,,-
1.3. In the instant case, -the Whl in question (Ext. 44) 
E 
bears the signature of one 'MV' in Gujrati language and 
one 'RS' in English. The respondents, in order to prove 
execution of the Will, examined 'RS' alone. He was 
working in the Agricultural Department of the State at 
Gondal in the District of Rajkot. On the date of execution 
F 
of the Will, he was at his place of work. The testator was 
a resident of Jetpur. The Will admittedly was executed at 
Jetpur. Attestation of the Will admittedly had taken place 
only at Jetpur. A perusal of the Will shows that the said 
'MV' was made an executor of the Will. The Will, however, G 
has been produced from the custody of 'RS'. The Will is 
supposed to have been executed in presence of both the 
witnesses. A declaration is made by the testator that he 
had signed before both the witnesses and only before 
him both the witnesses had put their signatures. But H 
1502 
SUPREME COURT REPORTS 
[2008] 17 S.C.R. 
A witness 'RS' does not say so. He was alone with the 
testator. According to him, the te~tator had already put 
his signature. It is, thus, evident that at that point of time 
'MV' had not put his signature on the Will as an attesting 
witness. Still his name appears at Serial No.1. It has, 
s· therefore, not been proved that both the attesting 
.witnesses either attested the Will in presence of each 
other or the testator had acknowledged his signature in 
presence of both the witnesses. The fact that the other 
witness 'MV' had expired on 2.5.1996, was not brought 
on record before the courts below. Execution of the Will 
C has, therefore, not been proved. The impugned jud

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