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

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:

1. Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
2. Since S.63 of the Succession Act required a will to be attested, it cannot be used as evidence until, as required by S.68 of the Evidence Act, 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.
3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity, in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
4. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the Court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
5. It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasizes that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.

6. If a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter”.

Ans. This is an area where much confusion prevails among the legal fraternity. While in the case of documents which do not require attestation, proof of execution alone is sufficient in view of Section 67 of the Evidence Act. But, in the case of documents including Wills where attestation is mandatory, proof of both execution and attestation is compulsory. In the case of such compulsorily attestable documents there should not only be proof of execution but also proof of valid attestation. Unless both the above aspects have come on record, the document cannot be said to have been validly proved. “To attest an instrument” means not merely subscribing one’s name and signature to the instrument but also to do so for having been present at the time of execution and for having been witnessed the execution. That is why the law requires the necessary mental element, namely, animo attestandi on the part of the person attesting an execution. Even as per the latter part of Section 63 of the Act more than one attesting witness from among the attesting witnesses (who should be two or more in number) need not be present at the same time. This means that if there are two attesting witnesses to a Will, they can either be present simultaneously at the time of attesting the execution or they can separately attest the execution without one of them seeing the other witness attesting the execution. In the first situation, both of them have the opportunity to see the testator executing the Will by affixing his signature or mark or directing some other person to sign the Will. These two attestors also have the opportunity to see each other attesting the execution of the Will. Proof of execution of an unprivileged Will under Section 63 of the Act will be complete only if it is shown that the Will has been attested by two or more witnesses. In almost all cases, the two or more attestors will usually be present  simultaneously at the time of execution and attestation of the Will. Even though for proving due execution of the Will, Section 68 of the Evidence Act allows the propounder of the Will to examine at least one of the attesting witnesses, such attesting witness so examined has to prove that the Will was attested by two or more witnesses. This would obviously apply only in those cases where both or all of the attesting witnesses are simultaneously present at the time of attestation. That is the reason why Courts have insisted that the sole attesting witness examined in the case should not only prove his attestation of the execution of the Will by the testator but also attestation by the other attestors as well. (Vide –

• Vishnu Ramkrishna Wani v. Nathu Vittal Wani AIR 1949 Bombay 266 – M. C. Chagla, Gajendragadkar – JJ;
• Janki Narayan Bhoir v. Narayan Namdeo Kadam (2003) 2 SCC 91 = AIR 2003 SC 761 - Doraiswamy Raju, Shivaraj V. Patil JJ;
• Sreedevi v. Jayaraj Shetty (2005) 2 SCC 784 = AIR 2005 SC 780 – Ashok Bhan, A. K. Mathur - JJ;
• Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao (2006) 13 SCC 433 = AIR 2007 SC 614 – S. B. Sinha, Markandey Katju - JJ;
• Benga Behera v. Braja Kishore Nandha 2007 (9) SCC 728 = AIR 2007 SC 1975 - S. B. Sinha, Markandey Katju - JJ;

• Rur Singh v. Bachan Kaur (2009) 11 SCC 1 – S. B. Sinha, Dr. Mukundakam Sarma - JJ;
• Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh (2009) 4 SCC 780 = 2009 KHC 4563 (SC) – 3 Judges – Dr. Arijit Pasayat, v. S. Sirpuralr, Asok Kumar Ganguly - JJ;
  
• Devassykutty v. Visalakshy Amma 2010 KHC 6233 = 2010 (2) KLT 1010 (Kerala) – P. Bhavadasan - J.

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.

But, there can be situations wherein one of the two attestors alone had the opportunity to witness the execution of the Will by the testator at a time and would have left the place after attesting the Will. The other attestor might have met the testator only subsequently and would have received from the testator a personal acknowledgment of his signature or mark before attesting the Will. The first attestor who had evidently not seen the second attestor, will not be in a position to speak about the attestation of the Will by the second attestor. In the case of the second attestor, since he had not seen the first attestor attesting the Will, it may not be possible for him to speak about the attestation of the Will by the first attestor. There can also be a situation as happened in Ganesan (D) through LRs v. Kalanjiam AIR 2019 SC 5682 = 2019 KHC 5523 (SC) – Ashok Bhushan, Navin Sinha – J, where the testator went to the attestors individually with his own signed Will, read it out to them, acknowledged his signature in the instrument and thereafter they attested the Will. In that case, it was held that the attestation was proper.

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.