27 May 2023 5:00 AM GMT
Q.31 What are the requirements to be satisfied for proving due execution of a Will ? Ans. On the question of proof of due execution of a will, the Apex Court in Jaswant Kaur v. Amrit Kaur 1977 (1) SCC 369 = AIR 1977 SC 74 made the following observations in para 10:- “10. There is a long line of decisions bearing on the nature and standard of evidence required to...
Q.31 What are the requirements to be satisfied for proving due execution of a Will ?
Ans. On the question of proof of due execution of a will, the Apex Court in Jaswant Kaur v. Amrit Kaur 1977 (1) SCC 369 = AIR 1977 SC 74 made the following observations in para 10:-
“10. There is a long line of decisions bearing on the nature and standard of evidence required to prove a will Those decisions have been reviewed in an elaborate judgment of this court in H. Venkatachala Iyengar v. B. N. Thimmajamma (1959) Supp (1) SCR 426 = AIR 1959 SC 443 . The Court, speaking through Gajendragadkar J. laid down in that case the following propositions:
Q. 32 What is onus probandi and animo attestandi ?
Ans. The Latin expressions onus probandi and animo attestandi are the two basic features in the matter of the civil court's exercise of testamentary jurisdiction. Whereas onus probandi lies in every case upon the party propounding a will, the expression animo attestandi means and implies animus to attest : to put it differently and in common parlance, it means “intent to attest”. As regards the latter maxim, the attesting witness must subscribe his signature to the instrument with the intent that the subscription of the signature made, stands by way of a complete attestation of the will and evidence is admissible to show whether such was the intention or not.
NOTE BY VRK: A perusal of Section 63 of the Indian Succession Act, 1925, will show that in the case of an unprivileged Will, “execution” includes “attestation” and it is unnecessary to refer to Section 3 of the Transfer of Property Act, 1882 to comprehend the meaning of “attestation” as has been unnecessarily attempted in M. L. Abdul Jabbar Sahib v. M. V. Venkada Sastri & sons (1969) 1 SCC 573 - 3 Judges – S. M. Sikri, R. S. Bachawat, K. S. Hegde – JJ & Babu Singh v. Ram Sahai @ Ram Singh (2008) 14 SCC 754 = AIR 2008 SC 2485 – S. B. Sinha, V. S. Sirpurkar – JJ.)
Q.33 Is a Will set up by the propounder liable to be rejected for the reason that it is attested by only one attestor ?
Ans. Yes. The requirement under Section 63 (c) of the Indian Succession Act, 1925 is that the Will should be attested by two or more witnesses. This means that there should at least be two attesting witnesses. If the execution of the Will is attested by only one attesting witness, the Will is liable to be rejected as invalid. (Vide Dhaman v. Jiya Lall AIR 2005 Punjab and Haryana 191 – V. K. Bali – J.)
But, for proving the Will, examining one of the attestors will be sufficient under Section 68 of the Evidence Act.
Q.34 Is it necessary that the solitary attesting witness called to the Court for proving due execution of the Will, should not only prove execution and attestation of the Will so far as it concerns him, but also the execution and attestation of the Will by the other attesting witnesses as well ?
The above proposition will undoubtedly apply only in those cases where two or more witnesses attesting the execution of the Will are simultaneously present and each of them has had the opportunity to see the other attesting the execution of the Will by the testator.
Again the Delhi High Court in Afzal – Ur – Rehman Khan v. State 2008 KHC 4857 = 2008 (3) KLT 200 – Pradeep Nandrajog – J, observed as follows:-
“There is no requirement in law that both witnesses of a Will have to be present in the company of each other and both have to see, in the presence of the other witness, the execution of the Will by the testator. It is sufficient for the two attesting witnesses to see or be told by the testator of the execution of the Will in the absence of each other. There is no requirement of the attesting witnesses to sign as attesting witnesses in the presence of each other.”
It is in this backdrop that the observations in Varghese Oommen 1994 (2) KLT 620 = AIR 1994 Kerala 85 (DB) – Varghese Kalliath, K. J. Joseph – JJ and in Smt. Punni v. Sumer Chand AIR 1995 HP 74 - Devinder Gupta – J, to the effect that the law does not insist that both the attesting witnesses should be present simultaneously at the time of putting their signatures in the Will, assume relevance. Those observations have to be understood in the above setting. No doubt, the statement in Varghese Oommen to the effect that the attesting witness examined in the case need not prove attestation by the other attesting witness, may be an overstatement of law in a case where both the attestors were simultaneously present at the time of attesting the execution and each of them had seen the other attesting the Will. But in situations where the two attestors had not simultaneously witnessed the execution of the Will by the testator, it is humanly impossible for each of them to depose that the other had witnessed the execution and had accordingly attested the Will. The observations in Ganesan (D) through LRs v. Kalanjiam AIR 2019 SC 5682 = 2019 KHC 5523 (SC) – Ashok Bhushan, Navin Sinha – J, were made, in my view rightly, in such circumstances.
Q.35 What is to be done if the sole attesting witness called for proving due execution of the Will either denies or does not recollect the execution ?
Ans. When the attesting witness examined in the case failed to prove due execution of the Will, the propounder of the Will should have examined the other attesting witness who was available. This is based on the principle of best evidence. Section 71 of the Evidence Act has no application in such a case. (Vide Janki Narayan Bhoir v. Narayan Namdeo Kadam (2003) 2 SCC 91 = AIR 2003 SC 761 – Doraiswamy Raju, Shivraj V. Patil – JJ).
A Division Bench of the High Court of Bombay in Vishnu Ramkrishna Wani v. Nathu Vithal Wani AIR 1949 Bombay 266 - M.C. Chagla, C.J. and P.B. Gajendragadkar – J, observed as follows:-
“6.Section 68 of the Indian Evidence Act provides that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence. Therefore, Section 68 makes an important concession to those who wish to prove and establish a will in a Court of law. Although the Indian Succession Act requires that a will has to be attested by two witnesses, Section 68 permits the execution" of the will to be proved by only one attesting witness being" called. But it is important to note that at least one witness should be in a position to prove the execution of the will. If that attesting witness can prove the execution of the will, the law dispenses with the evidence of the other attesting witness. But if that one attesting witness cannot prove the execution of the will, then his evidence has to be supplemented by the other attesting witness being called to prove the execution. In this case the one attesting witness who has been called, and he is the only attesting witness, Dr. Pillay, does not prove the execution of the will. The execution of the will does not merely mean the signing of it by the testatrix or putting her thumb impression on the document, but it means all the formalities required and laid down by Section 63 of the Succession Act, and, as we have already pointed out, Dr. Pillay is not in a position to prove the attestation of the will by the second witness, and, therefore, the evidence of Dr. Pillay falls short of the mandatory requirements of Section 68 of the Evidence Act.
7. In this connection our attention was drawn to Section 71 of the Indian Evidence Act. It provides that if the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence. This is a sort of a safeguard introduced by the Legislature to the mandatory provisions of Section 68, where it is not possible to prove the execution of the will by calling attesting witnesses, though alive. Section 71 can only be requisitioned when the attesting witnesses who have been called fail to prove the execution of the will by reason of either their denying their own signatures, or denying the signature of the testator, or having no recollection as to the execution of the document. Section 71, in our opinion, has no application when one attesting witness has failed to prove the execution of the will and other attesting witnesses are available who could prove the execution if they were called. In any case, on the facts that we have before us there is no question of any attesting witness denying or not recollecting the execution of the document. The difficulty with Dr. Pillay's evidence is that he can only speak to a part of the execution of the document. He cannot depose to all the formalities which go to constitute the execution of a will”.
(Emphasis supplied by me)