Summary
The Supreme Court held that the words 'by the direction of the testator' in Section 63(c) of the Indian Succession Act, 1925 apply only where an attesting witness sees some other person sign the Will on the testator's behalf; where the witness saw the testator himself affix his mark, no direction need be proved. The High Court's finding that the Will was unproved was set aside and the first appellate court's decree upholding it restored.
Issues
- What the words 'by the direction of the testator' in Section 63(c) of the Indian Succession Act, 1925 mean and whether an attesting witness must depose that he attested at the testator's direction.
- Whether the High Court was right in holding the Will not proved because the attesting witness did not state that he affixed his thumb impression at the testator's direction.
Provisions considered
- Section 63(c), Indian Succession Act, 1925The Court read clause (c) as setting out alternative modes of attestation joined by 'or': the witness has seen the testator sign or affix his mark, or has seen another person sign in the testator's presence and by his direction, or has received the testator's personal acknowledgement; and each witness must sign in the testator's presence. The 'direction' requirement attaches only to signature by another person. (¶¶ 7, 9, 13, 14)
Held
- Section 63(c) states alternative situations, linked by the disjunctive 'or', in which a person qualifies as an attesting witness; to these is added the conjunctive requirement that each witness sign in the testator's presence, though not necessarily together, and no particular form of attestation is needed. (¶¶ 7, 13)
- The word 'or' is ordinarily disjunctive and is not to be read as 'and' unless discernible legislative intent requires it; the plain grammatical meaning of the statute is to be given effect unless it produces ambiguity, uncertainty or absurdity, none of which arose here. (¶ 13)
- The phrase 'by the direction of the testator' comes into play only when the attesting witness sees some other person sign the Will, which signing must be in the testator's presence and at his direction; where the witness saw the testator himself affix his mark, that alone satisfies Section 63(c). (¶ 14)
- The High Court, following a decision that treated absence of a deposition about the testator's direction as fatal, erred in law, since the attesting witness (DW-1) clearly deposed that he had seen the testator affix his thumb impression on the Will. (¶¶ 11, 12, 13, 14, 15)
- The Court restated the settled requirements for proof of a Will, including the prudent-mind test, examination of at least one living attesting witness, and the propounder's duty to dispel real and germane suspicious circumstances. (¶ 8)
Result
Appeal allowed; High Court's judgment in the second appeal set aside and the first appellate court's judgment restored, so the Will and the subsequent sale deeds executed by the appellant stand valid; pending applications disposed of.