A Will Is Required to Fulfil All the Formalities Required Under Section 63 of the Succession Act: SC

In a very significant judgment pertaining to the validity of the will, the Apex Court in a most learned, laudable, landmark, and latest judgment titled Meena Pradhan & Ors vs Kamla Pradhan & Anr in Civil Appeal No. 3351 of 2014 (Arising out of SLP(C) No.17115 of 2010 that was pronounced as recently as on September 21, 2023 has minced just no words to specify in no uncertain terms that a will is required to fulfill all the formalities required under Section 63 of the Succession Act. It must be mentioned here that the Bench of Apex Court comprising of Hon'ble Mr Justice Abhay S. Oka and Hon'ble Mr Justice Sanjay Karol was dealing with the appeal challenging the judgment passed by the Madhya Pradesh High Court confirming the order of the Civil Court in Succession Case wherein it upheld the validity of the Will and issued Letters of Administration. We must also note that the Supreme Court opined that both the courts below have rightly noted that the relevant provisions were complied with, and given the well-­reasoned order upholding the validity of the Will, the same does not warrant interference of this court. Resultantly, we thus saw how ostensibly the Apex Court Bench thus deemed it fit to dismiss the appeal. Very rightly so!

At the very outset, this remarkable, robust, rational and recent judgment authored by Hon'ble Mr Justice Sanjay Karol for a Bench of Apex Court comprising of Hon'ble Mr Justice Abhay S Oka and himself sets the ball in motion by first and foremost putting forth the factual aspects in para 1 by stating that, "The facts, in brief, giving rise to the present appeal are as under: There was one Bahadur Pradhan who married Meena Pradhan (Defendant-2/Appellant No.1 herein) with whom he had two children namely, Ravi Kumar (Defendant-3/ Appellant No.2 herein) and Ku. Sushma (Defendant-4/Appellant No.3 herein). Allegedly, he divorced his first wife and solemnised another marriage with Kamla Pradhan (Plaintiff-1/Respondent No.1 herein) who gave birth to a child namely Ku. Ritu (Plaintiff-2/Respondent No.2 herein). Bahadur Pradhan (hereinafter referred to as 'testator'), seven days before his death (07.08.1992), executed a Will on 30.07.1992 in the presence of two witnesses namely Lok Bahadur Thapa (not examined) and Suraj Bahadur Limboo (PW-2)."

To put things in perspective, the Bench envisages in para 2 that, "After the death of the testator, the Plaintiffs filed a case for receiving the testator's dues wherein a succession certificate was issued in favour of Respondent No.1 by VI Additional District Judge, Jabalpur vide order dated 05.07.1995. Proceedings stood concluded with the reversal of such an order by the High Court of Madhya Pradesh in terms of order dated 17.11.1995, quashing the entire proceedings, observing the authenticity and genuineness of the Will, in existence to be adjudicated in appropriate proceedings."

As it turned out, the Bench enunciates in para 3 that, "Pursuant to this order of the High Court, proceedings under Section 276 of the Indian Succession Act 1925 (hereinafter referred to as 'the Succession Act') for a grant of Probate or Letter of Administration were initiated by both the Plaintiffs. The Defendants challenged the execution of the Will in favour of the Plaintiffs, also raising an objection about the testator having married Plaintiff No.1."

As we see, the Bench then discloses in para 4 observing that, "The Civil Court, Jabalpur, MP vide order dated 11.12.2001, in Succession Case No. 22/98 while relying on the testimony of an attesting witness, namely, Suraj Bahadur Limboo (PW2) upheld the validity of the Will in favour of the beneficiaries and accordingly issued Letter(s) of Administration. The said order was challenged by the Defendants. The High Court in repelling the Defendant's contention of the Will being a forged document, by discussing the relevant statutory provisions and decisions of this Court, affirmed the order of the Civil Court."

Resultantly, the Bench then specifies in para 5 stating that, "Hence, the instant Appeal against the final judgment dated 25.03.2010 in Misc. Appeal No. 382 of 2002 passed by the High Court of Madhya Pradesh, confirming the order of the Civil Court in Succession Case No.22/98 wherein it upheld the validity of the Will and issued Letters of Administration."

Do note, the Bench notes in para 8 that, "Thus, a bare reading of the above-mentioned provisions would show that the requirements enshrined under Section 63 of the Succession Act have to be categorically complied with for the execution of the Will to be proven in terms of Section 68 of the Evidence Act."

Do also note, the Bench notes in para 9 that, "A Will is an instrument of testamentary disposition of property. It is a legally acknowledged mode of bequeathing a testator's property during his lifetime to be acted upon on his/her death and carries with it an element of sanctity. It speaks from the death of the testator. Since the testator/testatrix, at the time of testing the document for its validity, would not be available for deposing as to the circumstances in which the Will came to be executed, stringent requisites for the proof thereof have been statutorily enjoined to rule out the possibility of any manipulation."

Most significantly, the Bench then mandates in para 10 propounding that, "Relying on H. Venkatachala Iyengar v. B.N. Thimmajamma, 1959 Supp (1) SCR 426 (3-Judge Bench), Bhagwan Kaur v. Kartar Kaur, (1994) 5 SCC 135 (3-Judge Bench), Janki Narayan Bhoir v. Narayan Namdeo Kadam, (2003) 2 SCC 91(2-Judge Bench) Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh, (2009) 4 SCC 780 (3-Judge Bench) and Shivakumar v. Sharanabasappa, (2021) 11 SCC 277 (3-Judge Bench), we can deduce/infer the following principles required for proving the validity and execution of the Will:

i. The court has to consider two aspects: firstly, that the Will is executed by the testator, and secondly, that it was the last Will executed by him;

ii. It is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied.

iii. A Will is required to fulfill all the formalities required under Section 63 of the Succession Act, that is to say:

(a) The testator shall sign or affix his mark to the Will or it shall be signed by some other person in his presence and by his direction and the said signature or affixation shall show that it was intended to give effect to the writing as a Will;

(b) It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary;

(c) Each of the attesting witnesses must have 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 testator a personal acknowledgment of such signatures;

(d) Each of the attesting witnesses shall sign the Will in the presence of the testator, however, the presence of all witnesses at the same time is not required;

iv. For the purpose of proving the execution of the Will, at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined;

v. The attesting witness should speak not only about the testator's signatures but also that each of the witnesses had signed the will in the presence of the testator;

vi. If one attesting witness can prove the execution of the Will, the examination of other attesting witnesses can be dispensed with;

vii. Where one attesting witness examined to prove the Will fails to prove its due execution, then the other available attesting witness has to be called to supplement his evidence;

viii. Whenever there exists any suspicion as to the execution of the Will, it is the responsibility of the propounder to remove all legitimate suspicions before it can be accepted as the testator's last Will. In such cases, the initial onus on the propounder becomes heavier.

ix. The test of judicial conscience has been evolved for dealing with those cases where the execution of the Will is surrounded by suspicious circumstances. It requires to consider factors such as awareness of the testator as to the content as well as the consequences, nature and effect of the dispositions in the Will; sound, certain and disposing state of mind and memory of the testator at the time of execution; testator executed the Will while acting on his own free Will;

x. One who alleges fraud, fabrication, undue influence et cetera has to prove the same. However, even in the absence of such allegations, if there are circumstances giving rise to doubt, then it becomes the duty of the propounder to dispel such suspicious circumstances by giving a cogent and convincing explanation.

xi. Suspicious circumstances must be 'real, germane and valid' and not merely 'the fantasy of the doubting mind' [Shivakumar (supra)]. Whether a particular feature would qualify as 'suspicious' would depend on the facts and circumstances of each case. Any circumstance raising suspicion legitimate in nature would qualify as a suspicious circumstance for example, a shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit, etc."

In addition, the Bench stipulates in para 11 that, "In short, apart from statutory compliance, broadly it has to be proved that (a) the testator signed the Will out of his own free Will, (b) at the time of execution he had a sound state of mind, (c) he was aware of the nature and effect thereof and (d) the Will was not executed under any suspicious circumstances."

Be it noted, the Bench notes in para 12 that, "Coming to the facts of the case, a careful perusal of the relevant material on record and applying the provisions and the case laws it is evident that the Will was duly executed by the testator in the presence of witnesses out of his free Will in a sound disposing state of mind and the same stands proven through the testimony of one of the attesting witnesses, namely, Suraj Bahadur Limboo who was examined as PW-2 by the Civil Court. This witness categorically states that the testator executed the Will in question and, both he and the testator signed the Will in the presence of each other."

It is worth noting that the Bench notes in para 13 that, "As far as allegations made by the defendants are concerned, we are of the opinion that there is no evidence on record to conclude that the deceased was not in a fit or stable mental condition at the time of execution of a Will, or that a Will was executed under suspicious circumstances, or the presence of any element of undue influence."

Quite ostensibly, the Bench clarifies in para 14 that, "Thus, in the case at hand, we are of the opinion that both the courts below have rightly noted that the relevant provisions were complied with, and given the well-reasoned order upholding the validity of the Will, the same does not warrant interference of this court."

No doubt, the Bench rightly points out in para 15 that, "As far as the allegations of second marriage and bigamy are concerned, we refrain from entertaining such submissions as the same is not a relevant factor in deciding the main lis, which is confined to the validity of the Will."

As a corollary, the Bench holds in para 16 that, "This Appeal is bereft of any merit and hence dismissed. Since the validity of the Will stands proven according to settled principles of law, consequential benefits be disbursed accordingly."

Finally, the Bench then aptly concludes holding that, "Interlocutory Application(s) if any, stand disposed of. No order as to costs."

In sum, we thus see that the Apex Court has made it indubitably clear that a will is required to fulfill all the salient features as specified in Section 63 of the Indian Succession Act and elaborated exhaustively most brilliantly in para 10 in this notable judgment along with relevant case laws. There can be no gainsaying that all the courts including High Courts must abide by what has been laid down in this noteworthy judgment by the Apex Court. There is nothing left to be specified now.