Source: Supreme Court 

Why in News? 

Recently, the Supreme Court in the matter of Gopal Krishan & Ors. v Daulat Ram & Ors.  has held that 'Unprivileged Will' is deemed to be executable under Section 63(c) of the Indian Succession Act, 1925 (ISA) when the attesting witnesses have witnessed the Will's testator signing or affixing their mark on the Will. 

What was the Background of Gopal Krishan & Ors. v Daulat Ram & Ors.  Case? 

• Sanjhi Ram owned a 1/4^th share of land measuring 40 canals, 3 marlas in Village Umarpura, Khurd, Tehsil and District Gurdaspur, Punjab. His specific share amounted to 10 canals and 1 marla. 
• Sanjhi Ram had no children and lived with his nephew, Gopal Krishan. 
• On 7^th November, 2005, Sanjhi Ram executed a Will. He passed away the following day on 8^th November, 2005. A death certificate was issued on 19^th November, 2005. 
• After receiving the property through the Will, Gopal Krishan transferred it to his four sons - Ravinder Kumar, Rajinder Kumar, Satish Kumar, and Roop Lal.  
• Subsequently, the property was jointly sold by the four sons to Madhu Sharma and Meena Kumari for Rs. 98,000 through a Sale Deed. 
• Respondents filed a suit seeking: 
  • A declaration that they were the owners of Sanjhi Ram's 1/4th share. 
  • A declaration that the Will was forged and fabricated. 
  • A declaration that the mutation carried out after the Will's execution was illegal and not binding on them. 
• The defendants (Gopal Krishan and others) filed a written statement denying all contentions made in the plaint. 
• The trial Court observed that the Will was suspicious and unreliable. 
• On appeal to the High Court, the court confirmed the findings of the Trial Court and observed that: 
  • Found that the reduction of spacing while concluding the Will was a "glaring illegality and perversity" that lower courts had overlooked. 
  • Noted that the attesting witness had not specifically stated in his examination that his thumb print was appended to the Will "upon the direction of the testator." 
  • Without framing substantial questions of law, set aside the judgment of the Lower Appellate Court 
  • Agreed with the Civil Court's finding that the Will was not proved. 
• Aggrieved by the decision of the High Court the present appeal has been filed before the Supreme Court. 

What were the Court’s Observations? 

• The Supreme Court made the following observations: 
  • Interpretation of Section 63(c) of ISA: 
    • The Court first examined the full scope of Section 63(c). 
    • Identified that there are five distinct situations for valid attestation. 
    • Clarified that these situations are alternatives, not cumulative requirements. 
    • Emphasized the importance of the word "OR" in the statutory provision. 
  • Analysis of the term "Direction": 
    • Examined various contexts of the word "direction" using Cambridge Dictionary. 
    • Identified relevant meanings in this case: "control or instruction" and "information or orders telling somebody how or what to do." 
    • Found that the High Court's strict interpretation requiring explicit mention of "direction" was incorrect. 
  • Critique of High Court's Reasoning: 
    • Found that High Court erred by requiring witness to specifically state that his thumb impression was at testator's direction. 
    • Pointed out that High Court incorrectly read the word "or" as "and" in Section 63(c). 
    • Established that there was no legislative intent to read "or" as "and." 
  • Principles of Statutory Interpretation Applied: 
    • Emphasized that "or" is normally disjunctive while "and" is normally conjunctive. 
    • Applied the principle that ordinary grammatical meaning should be given unless it leads to: 
      • Ambiguity 
      • Uncertainty 
      • Absurdity 
    • Found none of these exceptions present in this case.  
  • Clarification on "Direction" Requirement: 
    • Specified that "direction" requirement only applies when: 
      • The attestor sees someone else signing the Will. 
      • Such signing must be in testator's presence. 
      • Such signing must be upon testator's direction. 
    • Clarified that "direction" is not needed when witness directly sees testator sign. 
  • The Supreme Court set aside High Court's judgment and restored First Appellate Court's judgment and validated: 
    • Sanjhi Ram's Will as legal and valid. 
    • Subsequent Sale Deeds executed by Gopal Krishan. 
    • Established precedent for interpreting attestation requirements under Section 63(c). 
  • Legal Impact of the Judgment: 
    • Provided clarity on interpretation of Section 63(c). 
    • Established that requirements for attestation are alternative, not cumulative. 
    • Set precedent for future cases involving Will attestation. 
    • Simplified the process of proving Will execution by clarifying when "direction" is necessary. 
    • This judgment significantly clarifies the legal requirements for Will attestation and provides guidance for lower courts in handling similar cases involving Will disputes. 

What is Section 63 of ISA? 

About: 

• Chapter III, Part IV- Testamentary Succession of the ISA covers Section 63. 
• This section provides the provisions for execution of Underprivileged Wills. 
• This section essentially creates a three-tier system of safeguards: 
  • Proper execution by testator or authorized person. 
  • Appropriate placement of signature showing clear intention. 
  • Valid attestation by witnesses. 

Legal Provision:

• Scope And Application  
  • Applies to all testators except:  
    • Soldiers employed in expeditions/actual warfare. 
    • Airmen so employed or engaged. 
    • Mariners at sea. 
  • These exceptions are known as "privileged wills" 
• Mandatory Rules For Execution  
  • First Rule - Signature/Mark Requirement [Section 63(a)] 
    • Primary Methods:  
      • Testator shall sign the will, OR 
      • Testator shall affix his mark to the will. 
    • Alternative Method:  
      • Will may be signed by another person. 
      • Two concurrent conditions must be met:  
        • a) Signing must be in testator's
        • b) Signing must be by testator's direction.
  • Second Rule - Placement of Signature/Mark [Section 63(b)] 
    • Position Requirements: Applies to - 
      • Testator's signature/mark. 
      • Signature of person signing for testator. 
    • Intent Requirement:  
      • Placement must clearly indicate intention to give effect to the document as a will. 
      • Must demonstrate that signature/mark validates entire document as testator's will. 
  • Third Rule - Attestation Requirements [Section 63(c)] 
    • Number of Witnesses:  
      • Minimum two witnesses required. 
      • No maximum limit specified. 
    • Witness Requirements - Any ONE of these conditions must be met:  
      • Direct Observation of Testator:  
        • Witness has seen testator sign the will, OR 
        • Witness has seen testator affix mark to will. 
      • Observation of Proxy Signing:  
        • Witness has seen another person sign 
      • Two concurrent conditions:  
        • Signing in testator's presence. 
        • Signing by testator's direction. 
      • Personal Acknowledgment:  
        • Received from testator 
        • Can acknowledge:  
          • His own signature. 
          • His own mark. 
          • Signature of other person signing on his behalf. 
      • Witness Signature Requirements:  
        • Each witness must sign the will. 
        • Must sign in testator's presence. 
        • Not necessary for all witnesses to be present simultaneously. 
      • Form of Attestation:  
        • No particular form prescribed. 
        • Flexibility in manner of attestation.