The Supreme Court held that an “Unprivileged Will” is considered valid under Section 63(c) of the Indian Succession Act, 1925 (“Act”) when attesting witnesses have seen the testator sign or affix their mark on the Will.
Section 63 of the Act prescribes the procedural requirements for executing unprivileged Wills. Sub-section (c) mandates that:
(i) The Will must be attested by two or more witnesses.
(ii) Each witness must either:
a) See the testator sign or affix their mark on the Will;
b) See another person sign at the testator’s direction; or
c) Receive personal acknowledgment from the testator of their signature or mark.
In this case, the Respondent disputed the execution of the Will in the Appellant’s favor, claiming the testator had not affixed his thumb impression on the Will. They argued that the Will was invalid as condition (b) was not fulfilled—where attesting witnesses must see another person signing at the testator’s direction.
Condition (b) applies only when the testator does not personally sign or affix their mark on the Will but directs someone else to do so. For this condition to be satisfied, the attesting witnesses must observe the person signing at the testator’s direction.
The Appellants contended that the testator was mentally sound and that the attesting witnesses saw him affix his thumb impression on the Will. They argued that this satisfied condition (a) and rendered condition (b) irrelevant, as the testator had personally affixed his mark.While the trial court ruled in the Respondent’s favor, the First Appellate Court sided with the Appellants. Dissatisfied with the High Court’s decision allowing the Respondent’s second appeal, the Appellants approached the Supreme Court.
Reversing the High Court’s decision, a bench of Justices C.T. Ravikumar and Sanjay Karol upheld the validity of the “Unprivileged Will.”
The Court noted that the Will is valid if attesting witnesses observe the testator signing or affixing their mark.
Justice Karol, in the judgment, clarified that Section 63(c) uses the term “or,” indicating alternatives rather than cumulative requirements. Thus, fulfilling any one of the specified conditions suffices for the Will’s execution.
The Court emphasized that witnessing the testator affixing their mark alone meets the requirements of Section 63(c). It stated:“In this case, DW-1’s testimony clearly establishes that he saw the deceased affix his mark on the Will. This alone ensures compliance with Section 63(c). Condition (b) applies only when another person signs the Will in the presence and at the direction of the testator.”
The Court allowed the appeal, holding that the High Court erred by requiring the Appellants to satisfy additional conditions under Section 63(c).
Case Title: Gopal Krishan & Ors. v. Daulat Ram & Ors.
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