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Sudek Vs. Sundri and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtDelhi High Court
Decided On
Case NumberLetters Patent Appeal No. 5 of 1968
Judge
Reported in6(1970)DLT31
ActsSuccession Act, 1925 - Sections 63(1)
AppellantSudek
RespondentSundri and ors.
Advocates: Chabildas and; Hem Chand, Advs.
Cases Referred and Shiam Sundar Singh v. Jagannath Singh. In
Excerpt:
.....witness. - - 4 in this case are in conformity with and in satisfaction of the provisions of clause (e) of sub section (1) of section 63 of the aforementioed act we may state straight-off that we were taken through the evidence of the sub-registrar as well as of the witness named sundar lal (dw. when we were taken through the evidence of the registrar as well as of d w. as indicated earlier, we are fully satisfied on our own appreciation of the evidence that the sub-registrar made his signature in the presence of the testator. as we have said earlier we have applied that test and we have come to the conclusion that the single bench was perfectly justified in holding that the registrar and d......a poser arising in terms of the legal proposition canvassed in terms of section 63(1)(e) of the indian succession act, 1925.(2) the full bench was concerned with the following reference.- 'inwhat circumstances, if any, can the signatures of the sut' registrar and of the identifying witness upon a will presented for registration under the indian registration act amount to an attestation of the will within the meaning of section 63(1)(e) of the indian succession act, 1925 ?'(3) the reference became necessary of the conflict of authority presented by the decisions of some of the high courts. the full bench reporduced in its judgment section 63 of the indian succession act in its entirety and then converged its attention on the interpretation of clause (e) thereof. the various cases cited.....
Judgment:

P.S. Safeer, J.

(1) This Letters Patent Appeal is concerned with the single Bench judgment made by Hon' ble Mr. Justice S. N. Shankar on the 27th September, 1967. Before the Letters Patent Appeal could be disposed of a Full Bench of this Court had to deal with a poser arising in terms of the legal proposition canvassed in terms of Section 63(1)(e) of the Indian Succession Act, 1925.

(2) The Full Bench was concerned with the following reference.-

'INwhat circumstances, if any, can the signatures of the sut' Registrar and of the identifying witness upon a will presented for registration under the Indian Registration Act amount to an attestation of the will within the meaning of section 63(1)(e) of the Indian Succession Act, 1925 ?'

(3) The reference became necessary of the conflict of authority presented by the decisions of some of the High Courts. The Full Bench reporduced in its judgment section 63 of the Indian Succession Act in its entirety and then converged its attention on the interpretation of clause (e) thereof. The various cases cited at the Bar were discussed in detail and then on sound reasoning the question was answered as under :-

'FORall the foregoing reasons, the signatures of the Sub- Registrar and of the indentifying witnesses upon a will presented for registration under the Indian Registration Act would amount to an attestation of the will within the meaning of section 63(1)(c) of the Indian Succession Act if the provisions of this sub-Section are complied with.'

(4) The answer provided by the Full Bench throws the arguments addressed in this case into a very narrow channel. We are only to see whether the signatures. subscribed by the Sub-Registrar and the identifying witness D. W. 4 in this case are in conformity with and in satisfaction of the provisions of clause (e) of sub section (1) of section 63 of the aforementioed Act We may state straight-off that we were taken through the evidence of the Sub-Registrar as well as of the witness named Sundar Lal (DW. 4) who had been brought before the Registrar by the testator for the satisfaction of the registrar that the testator happened to be the fame lady which she asserted that she was. On a clear appreciation of that evidence we are of the view that the proceedings before the Registrar passed through two distinct stages. The first was when the lady came before the Registrar and the will was read out to her and the second started when the Registrar asked her to bring forward a witness who could establish her identity and who could be a person known to the Registrar. When we were taken through the evidence of the Registrar as well as of D W. 2 we found a very remarkable feature confined to this CUSP. The Registrar did nto merely ask D. W. 4, whom he knew. as to whether he could identify Smt. Janki' the testator. The Registrar once again caused the will to be read out and took an affirmation of the same by the testator in the presence of D. W. 4. It was only after the testator in his presence had affirmed the contents of the will and acknowledged execution there of that D. W. 4 made his signature. Then again a second situation arose. While D. W. 4 went out of the Registrar's rooms, Smt. Janki (testator) still remained inside to continue with the porceedings before the Registrar. She did nto go out along with D. W. 4 That leads us to appreciate that the testator had twice affirmed the contents of the will and acknowledged the execution thereof before the Registrar and there is no scope left for an argument that the Registrar did nto subscribe his own signature in the presence of the testator and after the affirmation of the execution by the testator. The authorities cited at the Bar lead us at once to the consideration of the observations contained in Naresh Charan Das Gupta v. Paresh Charan Das Gupta which case was relied upon in Mst. Gori v. Munshi Ram* and again followed by the Punjab High Court in the case cited as Smt. Asharfi Devi v. Tirlok Chand. The basic authority, thereforee, remains the one made by the Supreme Court.

(5) If a reference is made to that case then it becomes obvious that Mr. Justice Venkatararama Ayyar, who was the author of that judgment, in paragrabh 12 thereof made certain observation which affirm us in the way in which we are dealing with this case. The observation there is exactly to the following effect:-

'ITcannto be laid down as a matter of law that because the witnesses did nto state in examination-in-chief that they signed the will in the presence of the testator, there was no due attestation. It will depend on the circumstances elicited in evidence whether the attesting witnessed signed in the presence of the testator. This is a pure question of fact depending on appreciation of evidence.'

(6) It any authority was ever needed to repeal the contention that it must be affitmatively established by the propounder of the will that the signatures of the attesting witnesses had been made in the presence of the testator then the observations made by the Supreme Court elevate the situation to a point where it is for the opposite side to disporve through cross-examination that the signatures of the attesting witnesses were nto so made in the presence of the testator. It is nto necessary always for the witnesses to state in examination-in-chief that they signed the will in the presence of the testator. As indicated earlier, we are fully satisfied on our own appreciation of the evidence that the Sub-Registrar made his signature in the presence of the testator. This is so because there was no other meaning in his retaining her presence after D. W. 4 departed from his room. There is no gainsaying the fact that D. W. 4 did sign at a point of time when the will had been read out in his presence to the testator and she had affirmed it and acknowledged the execution there of.

(7) The view taken by Mr, Justice S. .V. Shankar in his single Bench decision is the one which has, thereforee, to be upheld.

(8) Before parting with this Judgment, in all fairness, it would he correct to deal with two other cases cited by the learned counsel for the appellant, namely, H. Venkalachala Iyengar v B. N. Thimmejamma and others and Shiam Sundar Singh v. Jagannath Singh. In the case decided by the Supreme Court the observations related to sections 59 and 63 of the Indian Succession Act and the same were to the effect that as in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied, according to the Supreme Court, would be the usual test of the satisfaction of a prudent mind in such matters. As we have said earlier we have applied that test and we have come to the conclusion that the single Bench was perfectly justified in holding that the Registrar and D. W. 4 could be held as valid attesting witnesses within the meaning of clause (c) of Sub-section (1) of section 63 of the Indian Succession Act.

(9) The other case cited was . We may observe at the outset that the observations in that case do nto retain relevance in the face of the answer provided to the reference in the instant cage by the Full Bench of this Court, In the Privy Council case there was a very peculiar will which in terms said that the testator had executed the same with the consent of all his sons and had gto them to sign the same with the fixed purpose that they may nto quarrel among themselves after his demise. It cannto be said that the Court there was concerned with such .a situation as in the present case. The argument that D. W. 4 (Sunder Lal) was called only for a limited purpose is destroyed both by facts and law. The factsdestroy that argument because the inquiry by the registrar from D W. 4 was nto limited to the formal question as to the identity of the testator. The Jaw walks in because the Registrar did something which was nto ordinarily necessary and that was that he caused the will to he readout in the presence of D. W. 4 and once again the testator affirmed and acknowledged the execution thereof in the presence of the said witness The established facts as they become transparent from the perusal of the evidence disclose a complete compliance with the requirements of clause (e) of sub-section (1) of section 63 of the Indian Succes- sion Act. We are persuaded to hold that the Registrat and D. W. 1 were comptent attesting witnesses within the meaning of the said provi sion.

(10) This Letters patent Appeal is, thereforee, dismissed but therwill be no order as to costs.


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