“Law Of Wills”- Questions & Answers By Justice V Ramkumar [Part-VIII]

Q.36 If the sole attesting witness examined in the case appears to be dishonestly denying attestation of the Will, what are the courses open to the propounder of the Will ? Ans. 1. He can, after obtaining the permission of the Court under Section 154 of the Evidence Act, put questions to his own witness, namely the attesting witness, which might be put by the adverse party during cross- examination. This is an attempt to show that the witness is not speaking the truth.2. He can try to prove due execution of the Will by other evidence as permitted by Section 71 of the Evidence Act, by examining the other attesting witness, if alive and if in a position to give evidence.3. If no other attesting witness is alive, examine any other witness who can prove due execution of the Will by the testator.4. Where the only surviving attestor denies his signature, the propounder can have recourse to Sections 45 and 47 of the Evidence Act and try to prove that the signature is really that of the attesting witness.Q.37 Is not the propounder of the Will exempted from due execution of the Will if the opposite party has unequivocably admitted the execution of the Will by the testator ? Ans. No. Notwithstanding the admission by the opposite party, a Will shall not be used as evidence until due execution of the Will has been proved by strict adherence to Section 63 of the Indian Succession Act in accordance with the mandate of Section 68 of the Evidence Act. (Vide H. Venkatachala Iyengar v. B. N. Thimmajamma (1959) Supp (1) SCR 426 = AIR 1959 SC 443 – T. L. Venkatarama Ayyar, P. B. Gajendragadkar, A. K. Sarkar - JJ; S. R. Srinivasa v. S. Padmavathamma (2010) 5 SCC 274 = 2010 KHC 4280 (SC) – V. S. Sirpurkkar, S. S. Nijjar - JJ; Sarada v. Radhamani 2017 (2) KLT 327 = 2017 (2) KHC 527 – V. Chitambaresh, Sathish Ninan - JJ. In view of the above position, the verdict by a Division Bench of the Kerala High Court in Thayyullathil Kunhikannan v. Thayullathil Kalyani AIR 1990 Kerala 226 = 1990 KHC 296 (Kerala) (DB) – K. S. Paripoornan, T. L. Viswanatha Iyer – JJ which was followed in Princilal C. v. Prasanna Kumari 2009 KHC 636 - V. Ramkumar – J and Maya Siva Sankar v. Sathi 2011 (2) KHC 30 – Thottathil B. Radhakrishnan, P. Bhavadasan - JJ, do not lay down the law correctly. In Principal (Supra – 2009 KHC 636) the execution of the Will was admitted by the opposite party and the only dispute was whether the Will was a mutual Will or a joint Will. Again in Maya Siva Sankar v. Sathi (2011) 2 KLT 432 = 2011 (2) KHC 30 (Kerala – DB) – Thottathil B. Radhakrishnan, P. Bhavadasan – JJ and by the Apex Court in Balathandayutham v. Ezhilarasan (2010) 5 SCC 770 = 2010 KHC 4252 (SC) – A. K. Ganguly, G. S. Singhvi – JJ it has been held that in the absence of specific denial of the Will, it is not necessary to insist on evidence in proof of execution. In Sarada v. Radhamani 2017 (2) KLT 327 = 2017 (2) KHC 527 - V. Chitambaresh, Sathish Ninan – JJ, another Division Bench of the Kerala High Court also took the same view and held that notwithstanding any admission, a Will shall not be used as evidence until due execution of the Will has been proved by recourse to Section 68 of the Indian Evidence Act and Section 63 of the Indian Succession Act, 1925. In Narayanan Radhakrishna Menon v. Narayanan Sukumara Menon 2018 (2) KLT 553 = 2018 (1) KHC 412 – A. Hariprasad – J, a learned Single Judge of the High Court of Kerala placing reliance on the verdict of the Privy Council in Munnalal v. Kashibai AIR 1947 PC 15 - Lord Simonds, Mr. M. R. Jayakar and Sir John Beaumont - JJ. which held that a Will more than 30 years old and produced from proper custody should be presumed to be properly executed, took the view that the observations made in Sarada v. Radhamani cannot be applied as a universal rule applicable to all situations.Q. 38 Whether the scribe who prepared the Will can be an attesting witness ? Ans. No. In an earlier decision of the Calcutta High Court in Abinash Chandra Bidyanidhi Bhattacharya v. Dasarath Malo (ILR (1929) 56 Cal 598 : AIR 1929 Cal. 123) – Rankin – J, it was held that a person who had put his name under the word "scribe" was not an attesting witness as he had put his signature only for the purpose of authenticating that he was a "scribe". The scribe of the Will cannot prove due attestation (Vide Kamalam v. Ayyasami (2001) 7 SCC 503 = AIR 2001 SC 2802 – A. P. Mishra, Umesh C Banerjee - JJ; S. R. Srinivasa v. S. Padmavathamma (2010) 5 SCC 274 = 2010 KHC 4280 (SC) – V. S. Sirpurkar, S. S. Nijjar - JJ. But if the scribe has also attested the Will with the requisite animo attestandi, he can prove due execution of the Will. (Vide Mathew Oommen v. Suseela Mathew (2006) 1 SCC 519 = AIR 2006 SC 786 – B. P. Singh, Arun Kumar - JJ). There is no legal bar for the scribe to become an attesting witness provided he affixes his signature as a token of having...

“Law Of Wills”- Questions & Answers By Justice V Ramkumar [Part-VIII]

Justice V Ramkumar

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