S. 63(c) Indian Succession Act | Unprivileged Will Executable If Attesting Witness Sees Testator Signing Or Affixing Mark On Will : Supreme Court

The Supreme Court observed that 'Unprivileged Will' is deemed to be executable under Section 63(c) of the Indian Succession Act, 1925 (“Act”) when the attesting witnesses have witnessed the Will's testator signing or affixing their mark on the Will.

Section 63 of the Act outlines the procedural requirements for executing unprivileged Wills. Sub-section (c) requires that: (i) two or more witnesses must attest the Will, (ii) Each witness must either:

a) Witness the testator signing or affixing their mark; or

b) Witness another person signing at the testator's direction; or

c) Receive personal acknowledgment from the testator regarding their signature or mark.

In this case, the execution of the unprivileged Will in the Appellant's favor was disputed by the Respondent contending that the testator had not affixed his thumb impression on the Will, therefore due to non-fulfillment of condition (b) i.e., Each attesting witness must witness another person signing at the testator's direction, the Will cannot be deemed to executable.

Condition (b) comes into force only when the testator himself doesn't sign or affix a thumb impression on the Will but directs some other person to sign or affix the mark on his behalf. This condition requires the attesting witness to see another person signing at the testator's direction to prove Will's execution.

However, the Appellants contended that the testator was mentally fit and the attesting witnesses witnessed him affixing his thumb impression on the Will, which fulfilled condition (a) i.e., each attesting witness must witness the testator signing or affixing their mark on the Will. Since the attesting witnesses had witnessed the testator affixing his thumb mark on the Will, they argued that condition (b) was inapplicable because the testator had affixed his thumb mark and had not directed another person to sign at the testator's direction.

The trial court held in respondent's favor, whereas the First Appellate Court held in Appellant's favor.

Being aggrieved by the High Court's decision to allow the Respondent's second appeal, the Appellant approached the Supreme Court.

Setting Aside the High Court's decision, the bench comprising Justices CT Ravikumar and Sanjay Karol validated the 'Unprivileged Will' executed by the testator, noting that the Will is deemed to be executable when the attesting witnesses have witnessed the Will's testator signing or affixing their mark.

The judgment authored by Karol J. emphasized that Section 63(c) employs the word "or," implying alternatives, not cumulative conditions. Accordingly, a witness must satisfy any one of the specified requirements, not all of them.

The Court said that when the attesting witnesses have seen the testator affixing his mark on the Will, that would alone secure compliance with Section 63(c).

“In the present case the testimony of DW-1 is clear that he had seen the deceased affix his mark on the Will. That alone would ensure compliance of Section 63(c). The part of the Section that employs the term 'direction' [condition (b)] would come into play only when the attestor to the Will would have to see some other person signing the Will. Such signing would explicitly have to be in the presence and upon the direction of the Testator.”, the court observed.

Accordingly, the Court allowed the appeal, noting that the High Court erred in requiring the Appellant to fulfill other conditions of Section 63(c) when only one condition suffices the execution of the Will.

Appearance:

For Petitioner(s) Mr. T. V. S. Raghavendra Sreyas, AOR Ms. Gayatri Gulati, Adv. Mr. Siddharth Vasudev, Adv.

For Respondent(s) Mr. Abhimanyu Tewari, AOR Ms. Eliza Bar, Adv. Mr. Manav Bhalla, Adv. Mr. Sidhant Awasthy, Adv. Mr. Mr. Siddhant Saroha, Adv. Mr. Praveer Singh, Adv. Mr. Abhijeet Chaudhary, Adv.

Case Title: GOPAL KRISHAN & ORS. VERSUS DAULAT RAM & ORS.

Citation : 2025 LiveLaw (SC) 21

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