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Synopsis

The Supreme Court has said athone should not read ‘and’ as ‘or’ or vice-versa unless one is obliged to do so by discernible legislative intent, as it disagreed with the findings of a High Court that the requirements stipulated in Section 63 of the Indian Succession Act related to Will were not met.

A bench of Justice C T Ravikumar (since retired) and Sanjay Karol set aside the Punjab and Haryana High Court's order which reversed a finding of the Additional District Judge, who had set aside the civil court's decree holding a Will and subsequent mutation of properties as bad in law since the Will was illegal, null and void.

As per facts of the matter, Sanjhi Ram, who had no children and resided with his nephew appellant Gopal Krishan, executed a Will on November 7, 2005 in favour of appellant. He passed away the next day on November 8, 2005.

The appellant who received the property -- 10 canals and one murla -- by virtue of Will, transferred it to his four sons who subsequently sold it out by a sale deed in 2006.

Respondents filed a civil suit, claiming the Will was forged and fabricated and mutation carried on its basis was illegal. The civil court decreed the suit.

The appellate court held even if the Testator was ill, so long as his mental faculties were not affected, no inference could be drawn that he was not of sound state of mind or that he could not execute a Will. In the facts of the instant case, it observed that nowhere did the case record reflect that Sanjhi Ram’s mental faculties were in any way questionable nor was he disoriented or affected by illness.

While setting aside the civil court's judgment, it held the Will to be valid and genuine, so also that the consequent sale deeds could not be held invalid.

In the second appeal, the High Court found that the reduction of space while concluding the Will had “totally escaped the notice of the Court’s below”, and that this was a glaring illegality and perversity. It also found the attesting witness, Janak Raj (DW-1) had not stated in his examination that his thumb print had been appended to the Will upon the direction of the Testator which is a requirement in law.

After hearing the counsel for the parties, the bench referred to Section 63 of the Indian Succession Act, 1925 related to execution of the unprivileged Wills.

The court pointed out that the requisites for proving of a Will are well established and those were recently reiterated in a Judgment of this Court in Meena Pradhan and others Vs Kamla Pradhan and Another (2023).

The court said it was to be examined whether the requirement under Section 63 of the Act stood met in the present case particularly as to the contours of the meaning of the phrase ‘direction of the testator’.

The bench noted the view taken by the High Court was that the attesting witness, in his deposition, did not state that the act of affixing his thumb impression on the Will subject matter of dispute was at the direction of the Testator and, therefore, the requirement stipulated under Section 63 of the Act was not met.

The court pointed out that the language of Section 63(c)of the Act uses the word ‘OR’. It states that each Will shall be attested by two or more witnesses who have seen the Testator sign or affix his mark on the Will OR has seen some other persons sign the Will in the presence and by the direction of the Testator OR has received a personal acknowledgment from the Testator of his signature or mark etc.

"What flows therefrom is that the witnesses who have attested the Will ought to have seen the Testator sign or attest his mark OR have seen some other persons sign the Will in the presence of and on the direction of the Testator," the bench said.

"In the considered view of this Court, the Single Judge fell in error in arriving at such a finding for the words used in the Section, which read -'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…'. That being the case, there is no reason why the ‘or’ employed therein, should be read as ‘and’. After all, it is well settled that one should not read ‘and’ as ‘or’ or vice-versa unless one is obliged to do so by discernible legislative intent," the bench said.

The bench pointed out that Justice G P Singh’s treatise, ‘Principles of Statutory Interpretation’ tells us that the word “or” is normally disjunctive while the word “and” is normally conjunctive. Further, it is equally well settled as a proposition of law that the ordinary, grammatical meaning displayed by the words of the statute should be given effect to unless the same leads to ambiguity, uncertainty or absurdity. None of these requirements, to read a word is which is normally disjunctive, as conjunctive herein, are present, the court held.

"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’ 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 bench said.

The court thus held the High Court to have erred in law, set aside the impugned judgment, and restored the judgment of the first appellant court. Consequently, it declared, the Will of Sanjhi Ram as valid and so the subsequent sale deeds executed by Gopal Krishan.

Case Title: Gopal Krishan & Ors Vs Daulat Ram & Ors