Need To Embrace Technology To Ensure Proof Of Execution Of Will If Author Is Unavailable: Karnataka High Court
The Karnataka High Court has suggested for use of technology in documenting Wills by suitably amending the process of registration and facilitating video recording of the statement of the testator and attesting witnesses.
Justice Anant Ramanath Hegde said, “There is a need to embrace the technology to ensure that there is an unambiguous, credible, and clinching record relating to proof of execution of documents, more particularly the documents such as Will where the author of the instrument will not be available to admit or prove its execution when its execution is disputed.”
It observed that “A Will containing the last wish of the testator should last as per his wish, and should not be lost in a complex procedure of proof where when the testator has no voice and the proof of a Will depends on the evidence of attesting witnesses or other witnesses recognized under law.”
The court suggested “Suitable provision in law, facilitating an option to record the statement by the testator and the attesting witnesses in a Court, testifying about the execution of a Will, with necessary measures or safeguards to ensure the confidentiality, will go a long way in assisting the Courts in discharging its function where the Courts have to adjudicate the dispute surrounding the execution of the Will.”
The court made the suggestion while partly allowing an appeal filed by Indiramma and others who had questioned the trial court order which decreed the suit for partition filed by the plaintiff Hampamma and others.
However, the court did not give any finding on the contention raised by the appellant that property was bequeathed to them by way of a WILL on the ground that particulars of the Will are not forthcoming in the written statement.
Going through the records on whether the appellants had proved the WILL, the bench noted that the original Will dated 09.05.2005 was made by Vaddatti Basappa who was 85 years old at that time. He died in 2009. One of the attesting witnesses was examined by the appellants to prove the execution, who stated that the Will was executed in his presence and the presence of other attesting witness. In the examination-in-chief, the witness has identified the signature of Vaddatti Basappa as well as his signature.
Then it said, “The attesting witness is an illiterate. He signed the Will on 09.05.2005. He was examined in the year 2018. Minor discrepancy, if any, in the evidence of the attesting witness has to be ignored as 13 years had elapsed since the Will was registered.”
Noting that in the cross-examination, the attesting witness in one sentence has said that he does not know anything about the Will; it has to be construed as a stray sentence, it held “By considering entire evidence led in support of the Will, and attending circumstances, it can be concluded that the execution of the Will is duly proved.”
About the plaintiff's submission that all the properties mentioned in the plaint were joint family property and they were liable for share in them. The court referred to the Will, wherein Karabasabba @ Vaddatti Basappa had stated that he purchased the property item No.3 of the schedule properties along with his wife Parvathamma. The sale deed in respect of the property marked at Ex.D1 is in the joint name of Vaddatti Basappa and Parvathamma.
Following which the court said. “This Court is of the view that the Will, though proved, is valid only in respect of ½ share held by Vaddatti Basappa. Remaining ½ share in the said property bearing Sy.No.330c/1b belongs to Parvathamma who predeceased Vaddatti Basappa. Thus, half share of Parvathamma would devolve equally upon three persons i.e., her two daughters Hampamma and Sarvamangalamma, and the husband Vaddatti Basappa.
As no records were produced by the plaintiff to show that property was in the name of mother Parvathamma, or the re-grant of other property is made for the benefit of the joint family, and also given the fact that Defendant No.3 and plaintiff belong to different families. It said, “This Court has to hold that the said property is the self-acquired property of Defendant No.3.”
Allowing the appeal in part, the court held, “The Will dated 09.05.2005 is duly proved. However, the testator was not the absolute owner of the properties. The testator had only ½ share in item No.3 property. The plaintiff has not produced any records to hold that item No.1, 3 and 4 properties are the joint family properties. Thus, the plaintiff is not entitled to any share in the said properties.”
Appearance: Advocate Rajashekar R Gunjalli for Appellants.
Advocates H.R Deshpande, Usha H Deshapande FOR R1.
Citation No: 2024 LiveLaw (Kar) 508
Case Title: Indiramma & Others AND HAMPAMMA and others.
Case No: REGULAR FIRST APPEAL NO. 100008 OF 2019