M.B. RAMESH (D) BY LRS. versus K.M. VEERAJE URS (D) BY LRS. & ORS.

Citation: [2013] 8 S.C.R. 573 · Decided: 03-05-2013 · Supreme Court of India · Bench: H.L. GOKHALE · Disposal: Dismissed

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Judgment (excerpt)

[2013] 8 S.C.R. 573 
M.B. RAMESH (D) BY LRS. 
v. 
K.M. VEERAJE URS (D) BY LRS. & ORS. 
(Civil Appeal No.1071 of 2006) 
MAY 03, 2013 
[H.L. GOKHALE AND RANJANA PRAKASH DESAI, JJ.] 
Evidence Act, 1872 - ss. 68 and 71 - Proof of execution 
A 
B 
of Will - Suit on the basis of a Will - Trial court and first 
appellate court dismissed the suit holding that the Will was C 
not proved as it did not fulfill the requirement of s. 63(c) of 
Succession Act - High Court in second appeal decreed the 
suit - Held: In the facts of the case, the 'Will' can be said to 
have been proved with the aid of other evidence of attendant 
circumstances which is permissible u/s. 71 - Suit decreed -
D 
Succession Act, 1925 - s.63(c). 
Will: 
Examination of Will - Role of court - Held: Role of the 
court is limited to examining whether the instrument E 
propounded as the last Will of the deceased is or is not that 
by the testator, and whether it is product of free and sound 
disposing mind. 
Proof of Will - Standard of evidence - Held: A Will has F 
to be proved like any other document, except that the 
evidence should additionally satisfy the requirements of s.63 
of Succession Act and of s. 68 of Evidence Act - Succession 
Act, 1925 - s.63 - Evidence Act, 1872 - s.68. 
Code of Civil Procedure, 1908 - s.100 - Second appeal G 
- Scope of - Held: Second appeal can be entertained even 
on the question of fact - Whether a particular question is a 
substantial question of law, depends on facts and 
573 
H 
574 
SUPREME COURT REPORTS 
[2013] 8 S.C.R. 
.. 
A 
circumstances of each case - Construction of a document of 
title or the document which is foundation of the rights of parties, 
raises a question of law. 
B 
The respondents-plaintiffs filed suit, on the strength 
of the Will executed by the testatrix and prayed for 
declaration of their title to the property and for permanent 
injunction, restraining the appellants-defendants from 
interfering with their possession thereof. The trial court 
as well as the first appellate court held that the plaintiffs 
C 
failed to prove the Will, as the requirement of s.63(c) of 
Succession Act, 1925 was not fulfilled and dismissed the 
suit. High Court, in second appeal framed question of law 
as to whether the concurrent findings that plaintiffs have 
not proved the Will was bad in law and the finding in that 
D 
regard was perverse and contrary to the evidence on 
record? Deciding the question of law in favour of the 
plaintiffs, the High Court decreed the suit. 
The questions for consideration in the present appeal 
were whether the Will of the testatrix was validly executed 
and duty proved by the plaintiffs; and whether the High 
Court was right in interfering in exercise of power u/s.100 
CPC, into the concurrent findings of facts. 
Dismissing the appeal, the Court 
F 
HELD: 1.1. A Will, has to be executed in the manner 
required by s.63 of the Succession Act, 1925. Section 68 
of the Evidence Act requires the Will to be proved by 
examining at least one attesting witness. Section 7, of 
the Evidence Act is another connected section "which is 
G 
permissive and an enabling section permitting a party to 
lead other evidence in certain circumstances", and in a 
way reduces the rigour of the mandatory provision of 
Section 68. Section 71 is meant to lend assistance and 
come to the rescue of a party who had done his best, but 
H 
would otherwise be let down if other means of proving 
M.B. RAMESH (D) BY LRS. v. K.M. VEERAJE URS 575 
(D) BY LRS. & ORS. 
due execution by other evidence are not permitted. At the A 
same time, the section cannot be read to absolve a party 
of his obligation under Section 68 of the Evidence Act 
read with Section 63 of the Succession Act to present in 
evidence a witness, though alive and available. [Para 16] 
[587-F-H; 588-A-B] 
B 
Janki Narayan Bhoir vs. Narayan Namdeo Kadam 2003 
(2) SCC 91: 2002 (5) Suppl. SCR 175 - referred to. 
1.2. In the present case, the requirement of Section 
68 of the Evidence Act is satisfied, since one attesting C 
witness i.e. PW-2 was called for the purpose of proving 
the execution of the Will, and he has deposed to that effect. 
PW-2 has stated that he has signed the Will in the presence 
of the testatrix, and she has also signed the Will in his 
presence. However his evidence was silent on the issue D 
as to whether the testatrix executed the Will in the 
presence of another attesting witness and whether he also 
signed as attesting witness i

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