5 Jun 2023 4:30 AM GMT
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...
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.
There is no legal bar for the scribe to become an attesting witness provided he affixes his signature as a token of having witnessed the execution of the Will by the testator. (Vide Raveendran C. G. v. C. G. Gopi 2015 (3) KLT 740 (Kerala - DB) – Thottathil B. Radhakrishnan, Sunil Thomas – JJ.)
Q.39 What is the impact of the bequest in favour of a legatee who has figured as an attesting witness ?
Ans. If a legatee figures as an attesting witness to the Will, the bequest so far as it concerns him or her and his or her spouse and those claiming under either of them, shall be void in view of the latter part of Section 67 of the Indian Succession Act, 1925. But that will not affect the attestation in respect of the rest of the Will in view of the first part of Section 67. In a similar vein, the Privy Council in Shiam Sundar Singh v. Jagannath Singh (54 MLJ 43 : AIR 1927 PC 248 – Darling, Warrington, Duff, L Sanderson – JJ.) held that the legatees who had put their signatures on the will in token of their consent to its execution were not attesting witnesses and were not disqualified from taking as legatees. See also Jose v. Ouseph 2006 (4) KLT 991 = AIR 2007 Kerala 77 (DB) – K. S. Radhakrishnan, V. Ramkumar – JJ.)
Q.40 Whether attestation of the signature of the testator at the time of registration of the Will can be taken as evidence of attestation of the Will ?
Ans. Ordinarily no. Mere registration of the Will or endorsement by the Sub Registrar is of no consequence and it cannot satisfy the requirement of Section 63 of the Indian Succession Act, 1925. (Vide Bhagwan Kaur v. Kartar Kaur (1994) 5 SCC 135 = 1994 KHC 1226 (SC) – 3 Judges – M. M. Punchhi, S. C. Agrawal, B. P. Jeevan Reddy - JJ; Bhagat Ram v. Suresh (2003) 12 SCC 35 = AIR 2004 SC 436 – R. C. Lahoti, Ashok Bhan - JJ). Registrar cannot be a statutory attesting witness. (Vide Dharam Singh v. Aso 1990 Supp. SCC 684 = AIR 1990 SC 1888 – 3 Judges - Ranganath Misra, M. M. Punchhi, Agrawal – JJ).
In Girja Datt Singh v. Gangotri Datt Singh AIR 1955 SC 346 3 Judges – S. R. Das, N. H. Bhagwati, S. J. Imam – JJ, it was held that two persons who had identified the testator at the time of registration of the will and had appended their signatures at the foot of the endorsement by the Sub- Registrar, were not attesting witnesses as their signatures were not put animo attestandi.
NOTE: But, in paragraph 6 of a two Judge Bench decision of the Supreme Court in R.N. Mukherjee v. P. Banerjee (1995) 4 SCC 459 = AIR 1995 SC 1684 - K. Ramaswamy, B. L. Ansaria – JJ,
there is a passage as follows :
Insofar as the third circumstance is concerned, we may first observe that witnesses in such documents verify whether the same had been executed voluntarily by the Concerned person knowing its contents. In case where a will is registered and the Sub-registrar certifies that the same had been read over to the executor who, on doing so, admitted the contents, the fact that the witnesses to the document are interested lose significance. The documents at hand were registered and it is on record that the Sub-registrar had explained the contents to the old lady. So, we do not find the third circumstance as suspicious on the facts of the present case.
In Pentakota Satyanarayana v. Pentakota Seetaratnam (2005) 8 SCC 67 = AIR 2005 SC 4362 – Ruma Pal. Dr. AR. Lakshmanan – JJ, it was held that endorsement by the Sub Registrar that the executant had acknowledged execution before him amounts to attestation.
Where the attesting witnesses having been dead, the Sub Registrar who was examined on commission set out the circumstances in which the attesting witnesses and the testator had signed on the Will. It was held that the requirements of Section 69 of the Evidence Act were satisfied and due execution of the Will was proved by the Sub Registrar. (Vide Ved Mitra Verma v. Dharam Deo Verma (2014) 15 SCC 578 – Ranjan Gogoi, S. A. Bobde – JJ ).