Attesting Witness To 'Will' Need Not Necessarily Be The One Who Maintains Previous Acquaintance With Testator: Kerala HC [Read Judgment]

The Kerala High Court has held that there is no statutory requirement that the attesting witness shall necessarily be one who maintains previous knowledge or acquaintance with the testator/testatrix.

The Division Bench comprising of Justice A. Hariprasad and Justice TV Anilkumar disapproved a contrary view expressed by single bench. In Janardhanan v. Jayachandran, a single judge had held that a person who is having no prior acquaintance with the testator/testatrix, having no information regarding their identity, are incompetent to stand as attesting witness in compliance of Section 63(c) of Indian Succession Act.

Holding that this view 'appears to have transgressed the scope of the provision', the division bench in Johnson vs. Annie opined that, if such a broad view is taken, it would have the effect of deterring a person proposing to bequeath his property by means of a Will from carrying into effect his wish for the sole reason that he failed to secure. There is nothing in Section 63 of the Act that the legislature ever intended to lay down a principle that the attesting witnesses should have had previous knowledge or information of identity of the testator, the bench added.

The bench further observed:

"It is one thing to say that absence of attestation by a witness having prior knowledge of testator may be picked up as a suspicious circumstance to doubt the genuineness of Will and another thing to say that law does not permit a witness not having prior knowledge of identity of testator to attest a Will. In the Janardhanan's case (supra) the learned Judge rightly relied on the suspicious circumstance arising on account of the attestation made by a witness who did not admittedly have previous acquaintance with the testator. The above legal proposition in Janardhanan's case (supra) seems to have been laid down overlooking the true difficulty of a testator who may sometimes be a stranger to a place, in securing the service of an attesting witness who knew him previously. There is nothing in Section 63 of the Act or Section 3 of the Transfer of Property Act to indicate that the attesting witness shall necessarily be one who maintains previous knowledge or acquaintance with the testator/testatrix. The previous knowledge, association or information etc., of the attesting witness about the testator may be a relevant fact when the identity of the executant of the Will is in issue. Necessarily in such cases the test of previous acquaintance with the testator could be relied on as a circumstance to assess the genuineness of the Will. Since the proposition of law laid down in Janardhanan's case (supra) does not appear to be in tune with the scheme of Section 63 of the Act and further it appears to have transgressed the scope of the provision, we find it difficult to agree to the view expressed by the learned single Judge. We disapprove the above view in Janardhanan's case (supra) as it is an over statement of law without any legal basis. Although it may be true in the factual background of Janardhanan's case, such sweeping observations cannot be regarded as laying down principle in law."

The bench made these observations while considering an appeal filed by defendants against a Trial Court order decreeing a partition suit disbelieving the Will executed by their father.

The court also observed that the law does not mandate examination of co-attesting witness also in proof of execution of Will besides the attesting witness examined in compliance with Section 68. The propounder of Will can claim himself being relaxed from picking up both the attestors and examining the two in proof of execution of Will only in a case where the attesting witness examined under Section 68 of the Evidence Act witnessed co-attestor also signing the Will and could successfully prove co-attestation, the bench added.

Bequeathal of properties under a Will is the absolute choice of the testator arising out of his sweet will and pleasure and also his attitude to persons concerned

The court also said that Inequitable distribution of assets among the heirs or exclusion of any particular descendant from the assets of the testator cannot always be regarded as a circumstance sufficient to arouse suspicion in the matter of execution of Will.

Bequeathal of properties under a Will is the absolute choice of the testator arising out of his sweet will and pleasure and also his attitude to persons concerned. What a court of law is concerned in this respect is only to unearth whether testament came out of sound disposing state of mind and not dissect his decision nor find out whether distribution of the assets was fair, equitable or conscientious. Once it is shown that testator acted out of his free will and was capable enough to take decisions affecting his rights and interests, then any uneven distribution of assets or even denial of share to any descendent of the testator can seldom form a chain of suspicious circumstances vitiating execution of Will. This is because a decision which is not righteous to others may also come out of a conscious mind of the testator. 

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