APPEALS – PROOF OF WILL – SECTION 63(c) INDIAN SUCCESSION ACT, 1925 – SECTION 68 INDIAN EVIDENCE ACT, 1872 – MISDESCRIPTION OF PROPERTY – CONFLICTING SUPREME COURT DECISIONS – PRECEDENCE OF LATER JUDGMENTS.
(2025) 8 KCD 131 : 2025 KER 60191
KERALA HIGH COURT
HON’BLE MR. JUSTICE EASWARAN S.
FAO (RO) NO. 127 OF 2016 & 128 OF 2016
Background: These appeals challenged a remand order by the Sub Court, Perumbavoor, which set aside the Munsiff Court’s judgment and decree and sent the suits back for fresh consideration. The Munsiff Court had decreed O.S. No. 95/2009 (for prohibitory injunction based on a Will) and dismissed O.S. No. 113/2009 (for declaration of title, recovery of possession, and partition). The central dispute revolved around Registered Will No. 118/2007.
Sub Court’s Remand Rationale: The Sub Court found that the Will was not properly proved, primarily because the attesting witness, in terms of Section 68 of the Indian Evidence Act, 1872, did not speak about the second attesting witness, thereby failing to comply with Section 63(c) of the Indian Succession Act, 1925. Additionally, the Sub Court held that the property was not sufficiently identified by the Advocate Commissioner.
Legal Questions Raised by High Court:
Whether a misdescription of property in a Will constitutes a suspicious circumstance or is a matter for construction under Section 78 of the Indian Succession Act [17(i)].
Whether the non-examination of the second attesting witness is fatal to the proof of the Will [17(iii)].
Whether the first appellate court can introduce suspicious circumstances regarding a Will based on property misdescription when it was neither pleaded nor proved before the trial court [17(vi)].
Key Legal Conflict – Proof of Will:
Appellants argued that under Section 68 of the Indian Evidence Act, 1872, examining only one attesting witness is sufficient.
Respondents contended that Section 63(c) of the Indian Succession Act, 1925, requires a Will to be attested by two witnesses, and the attesting witness examined must speak not only about the testator’s signature but also about the other attesting witness. They cited Janki Narayan Bhoir v. Narayan Namdeo Kadam [(2003) 2 SCC 91]. This case held that the one attesting witness examined must prove execution in terms of Section 63(c), including attestation by both witnesses.
The High Court noted a serious conflict between Janki Narayan Bhoir (requiring the attesting witness to speak about the other witness) and later Supreme Court decisions in Ganesan (Dead) Through Legal Representatives v. Kalanjiam and others [(2020) 11 SCC 715], Dhanpat v. Sheo Ram (deceased) Through Lrs and others [2020 (16) SCC 209], and Gopal Krishan and others v. Daulat Ram and others [(2025) 2 SCC 804]. These later judgments took a different view, stating that Section 63(c) provides alternatives, and it is sufficient if the attesting witness confirms seeing the testator sign or affix their mark to the Will. Specifically, Gopal Krishan clarified this position after noticing Janki Narayan Bhoir.
High Court’s Ruling on Conflict: Adhering to the Full Bench decision of the Kerala High Court in Raman Gopi v. Kunju Raman Uthaman [2011(4) KHC 9], which stipulates that when there is a conflict between decisions of co-equal benches of the Supreme Court, the later decision will prevail. Accordingly, the High Court followed the principle laid down in Sheo Ram, Ganesan, and Gopal Krishnan, concluding that the requirement of Section 63(c) is met if one attesting witness is examined and speaks about the testator affixing the signature, thereby complying with Section 68 of the Indian Evidence Act.
Misdescription of Property: The High Court clarified that a Will cannot be deemed invalid merely due to a discrepancy in the property’s description. Under Section 78 of the Indian Succession Act, 1925, if the intended property can be sufficiently identified, erroneous parts of the description should be rejected, and the bequest should take effect. Courts should always strive to give effect to a Will rather than rendering it void. The first appellate court’s finding on this point was erroneous.
Decision: The High Court found the first appellate court’s remand order to be erroneous and unsustainable under law. The appeals were allowed, with questions of law (i) to (iv) answered in favor of the appellants. The Sub Court’s order was set aside, and the cases were restored to its files with a direction to consider the appeals on their merits as expeditiously as possible, at any rate, before the Christmas vacation.
