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Ganesan (Dead) Through Legal Representatives v. Kalanjiam And Others
Factual and Procedural Background
The appellant filed a suit seeking a share in certain properties on the footing that they were joint family assets. The trial court held the properties to be the self-acquired estate of the deceased, declared that the will propounded by the defendants had not been proved and consequently awarded the appellant a 1/5th share. In first appeal, the defendant succeeded: the court found that the testator’s signature was undisputed, that he was of sound mind, and that the will had been executed and attested in conformity with Section 63(c) of the Indian Succession Act, 1925, on the testimony of attesting witnesses DW-3 and DW-4. The appellant’s second appeal was dismissed. The present judgment deals with further appeals challenging that decision.
Legal Issues Presented
- Whether a will is validly executed and attested under Section 63(c) of the Indian Succession Act, 1925 when (a) the testator did not sign the will in the simultaneous presence of both attesting witnesses, and (b) the two attesting witnesses did not sign the will together in the testator’s presence.
Arguments of the Parties
Appellant's Arguments
- The will was not signed by the testator in the presence of the two attesting witnesses.
- The attesting witnesses did not sign the document together in the presence of the testator.
- Consequently, the statutory requirements of Section 63(c) were not fulfilled and the will could not be held genuine.
Defendant's Arguments
- The attesting witnesses received a personal acknowledgment from the testator that the signature on the will was his.
- The will was duly registered; both witnesses signed it simultaneously before the Sub-Registrar after the testator had affixed his signature.
- These facts satisfied the alternatives permitted by Section 63(c).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443 | The propounder discharges the burden of proving a will when disinterested and satisfactory evidence establishes the testator’s sound and disposing mind and due execution. | The Court relied on this authority to hold that once the attesting witnesses proved the statutory elements, the onus on the propounder was satisfied. |
| Pachigolla Venkatarao v. Palepu Venkateswararao, 1955 SCC OnLine AP 189; AIR 1956 AP 1 | It is not always necessary for attesting witnesses to actually see the testator sign the will; acknowledgment of the signature by the testator is sufficient. | The Court invoked this precedent to affirm that acknowledgment of execution—even without contemporaneous signing in each other’s presence—meets Section 63(c)’s requirements. |
Court's Reasoning and Analysis
The Court framed the appeals as raising a pure question of statutory interpretation under Section 63(c) of the Indian Succession Act, 1925. It noted that:
- The testator’s signature on the will was undisputed.
- Section 63(c) offers alternative methods of compliance: (a) the attesting witness may see the testator sign, or (b) may receive from the testator a personal acknowledgment of his prior signature.
- The statute does not mandate that the testator sign the will in the actual presence of both witnesses, nor that the two witnesses sign simultaneously in each other’s presence.
- Both attesting witnesses testified that the testator individually approached them with his already-signed will, read it aloud, and requested their attestation—conduct that unequivocally amounted to acknowledgment.
- Because acknowledgment followed by attestation in the testator’s presence satisfies at least one statutory alternative, the execution and attestation requirements were met.
- In light of the authorities in H. Venkatachala Iyengar and Pachigolla Venkatarao, the propounder had discharged the burden of proof.
Holding and Implications
APPEALS DISMISSED.
The Court affirmed the validity of the will and the first appellate court’s finding, leaving the appellant without any enlarged share in the property. The decision re-affirms existing jurisprudence on Section 63(c) by clarifying that acknowledgment of execution, rather than contemporaneous signing, suffices for valid attestation; however, it does not create a new legal precedent beyond reinforcing settled principles.
Order
1. The appellant filed a suit claiming share in the suit properties asserting them to be joint family properties. The trial court held that the suit property was the self-acquired property of the deceased who died intestate and genuineness of the will had not been established in accordance with the law, entitling the appellant to 1/5th share. The appeal of the defendant was allowed holding that the signature of the testator was not in dispute and the testator was of sound mind. The will was executed in accordance with Section 63(c) of the Succession Act, 1925 (hereinafter called “the Act”) and proved by the attesting witnesses DW 3 and DW 4. The second appeal by the appellant was dismissed.
2. Section 63(c) of the Succession Act, 1925 reads as follows:
“63. (c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.”
3. The learned counsel for the appellant submitted that the will was not signed by the testator in presence of the two attesting witnesses. Neither had the attesting witnesses signed together in presence of the testator. Therefore, the genuineness of the will cannot be said to have been established in accordance with the provisions of Section 63(c) of the Succession Act, 1925.
4. The learned counsel for the defendant contended that the attesting witnesses had received from the testator a personal acknowledgment of his signature on the will. The will was duly registered and the attesting witnesses had signed simultaneously in presence of the Sub-Registrar after the testator had signed.
5. The appeals raise a pure question of law with regard to the interpretation of Section 63(c) of the Act. The signature of the testator on the will is undisputed. Section 63(c) of the Succession Act requires an acknowledgment of execution by the testator followed by the attestation of the will in his presence. The provision gives certain alternatives and it is sufficient if conformity to one of the alternatives is proved. The acknowledgment may assume the form of express words or conduct or both, provided they unequivocally prove an acknowledgment on part of the testator. Where a testator asks a person to attest his will, it is a reasonable inference that he was admitting that the will had been executed by him. There is no express prescription in the statute that the testator must necessarily sign the will in presence of the attesting witnesses only or that the two attesting witnesses must put their signatures on the will simultaneously at the same time in presence of each other and the testator. Both the attesting witnesses deposed that the testator came to them individually with his own signed will, read it out to them after which they attested the will.
6. In H. Venkatachala Iyengar v. B.N. Thimmajamma AIR 1959 SC 443, it was observed: (AIR pp. 451-52, para 19)
“19. … Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.”
7. In Pachigolla Venkatarao v. Palepu Venkateswararao 1955 SCC OnLine AP 189, AIR 1956 AP 1, it was observed as follows: (SCC OnLine AP para 31)
“31. …‘There is nothing wrong, as was thought by the learned Subordinate Judge, for a testator to get the attestation of witness after acknowledging before them that he had executed and signed the will. It is not always necessary that the attesting witness should actually see the testator signing the will. Even an acknowledgment by him would be sufficient.’ ”
8. The appeals lack merit and are dismissed.
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