Home       Top Rated       Submit Article     Advanced Search     FAQ       Contact Us       Lawyers in India       Law Forum     RSS Feeds     

Register your Copyright Online

We offer copyright registration right from your desktop click here for details.

Latest Articles | Articles 2014 | Articles 2013 | Articles 2012 | Articles 2011 | Articles 2010 | Articles 2009 | Articles 2008 | Articles 2007 | Articles 2006 | Articles 2000-05

Search On:Laws in IndiaLawyers Search

Mutual Consent Divorce in Delhi
We provide fast, cost effective and Hassle free solution.
Contact us at Ph no: 9650499965 (Divorce Law Firm Delhi)

E-mail login                       Password
     

Free Email Sign Up

Main Categories
 Accident Law
 Arbitration
 Aviation Law
 Banking and Finance laws
 Case Laws
 Civil Laws
 Company Law
 Constitutional Law
 Consumer laws
 Contracts laws
 Criminal law
 Drug laws
 Dubai laws
 Educational laws
 Employment / Labour laws
 Environmental Law
 family law
 Gay laws and Third Gender
 Human Rights laws
 Immigration laws
 Insurance / Accident Claim
 Intellectual Property
 International Law
 Juvenile Laws
 Law - lawyers & legal Profession
 Legal Aid and Lok Adalat
 Legal outsourcing
 Media laws
 Medico legal
 Miscellaneous
 Real estate laws
 Right To Information
 Tax Laws
 Torts Law
 Woman Issues
 Workplace Equality & Non-Discrimination
 Yet Another Category

More Options
 Most read articles
 Most rated articles

Subscription
Subscribe now and receive free articles and updates instantly.

Name
Email



Copyright Registration

To Copyright Your Books, Videos, Songs, Scripts etc
Call us at: 9891244487 / or email at: admin@legalserviceindia.com
Top Law Colleges

Law Updates:

# Income-Tax
# Family law
# Company Law
# Constitutional Law
# Partnership firms
# Immigration Law
# Cyber Law
# Lok Adalat, legal Aid & PIL
# Forms
# Trademarks
# Woman issues
# Medico Legal
# Consumer laws
# Criminal laws
# Supreme Court Judgments


Published : June 01, 2012 | Author : YSRAO JUDGE
Category : Civil Laws | Total Views : 33558 | Rating :

  
YSRAO JUDGE
Y.SRINIVASA RAO, M.A(English).,B.Ed.,LL.M.; Judicial Magistrate of I Class; Topper in LL.M
 

Execution Of A Will
( with the relevant case -law analysis )

A document by which a person (called the trestator) appoints executors to administer his estate after his death, and directs the manner in which it is to be distributed to the beneficiaries he specifies.

The process by which a testator's Will is made legally valid is known as Execution of Will. A Will is a legal document, signed in compliance with the various formalities covered by the legislation. It is the expression of the testator's wishes concerning how his/her property is to be distributed. It is the only way one can ensure his/her assets will be distributed according to his/her wishes after his/her death. It should be in written, however it may be either handwritten, or printed, or typed. The testator must sign at the end of the Will. It must be witnessed by at least two perons present at the time of signing by the testator. The said two persons ,who witnessed, must acknowledge they were present and must sign the Will as witnesses in presence of the testator. Making of a Will is the only remedy to be sure that asest of testator go to the persons he/she loves.

The essential terms:
· administrator - A person appointed by the Court to collect and distribute a deceased person's estate when the deceased died instate, his will did not appoint an executor, or the executor refuses to act.
· Beneficiary – 1. A person entitled to benefit from a trust. A beneficiary was formerly known as the cestui que trust. 2. One who benefuts from a will.
· Bequest[5] – A gift by will of property other than land.
· Codicil[6] – A document supplementary to a will.
· demonstrative legacy - A demonstrative legacy is payable from a specified fund.
· devise - A gift by will of real property; the beneficiary is called the devisee.
· Distribution – The process of hand ing over to the beneficiaries their entitlements under a deceased person's will or on his intestacy. succession
· executor- A person appointed by a will to administer the testator's estate.
· Inheritance – Property that a beneficiary receives from the estate of a deceased person.
· Intestacy- The state in which a person dies without having made a will disposing of all his property.
· Intestate - A person who did not execute a will as to his all property during his life time.
· legacy - A gift of personal property effected by will. Specific legacy is a particular identifiable object.
· legatee - The person to whom a legacy is given.
· Probate - Probate is an acceptance or approval by the court of law that how testator's assets are to be settled.
· testate – Having left, at one's death, a legally valid will.
· testator - A person who makes a will.

General Essential Requirements for Making of a WIll:
-A person, being major, and of sound mind can execute a Will.

- He/she can dispose of all his/her property or any part of property under a Will.

- The Will must a last Wil and testament.

- A declaration should be given by the testator that he/she revokes all earlier Wills if any.

- However, in case of a subsequent Will is totally inconsistent and void with an earlier Will, the earlier Will can be considered by implecation as if it is revoked.

- A Will should be made by the testator who has having sound mind in state.

- The testator should execute the Will in presence of at least two witnesses.

- The maker of the Will should sign or put his /her mark at the end of the Will. If the testator does not signor put his/her mark at the end of the Will, the text following the singature or mark usually be ignored or the entire Will may be invalidated. Therefore, care should be taken to avoid defeat of intention of the testator.

- Normally, non registration of a Will does not lead to any inference against the genuineness of a Will.

- A Will may be revoked by the execution of a new Will by the testator.

- Yet, in case of muslim testator, Muslim can bequeath one 1/3rd of his property.

- The heirs of a Muslim can consent to bequeath more than 1/3rd of estate of testator.

- A Muslim testator can cancell any legacy or change his Will.

- It is to be remembered that Muslim Personal Law governs muslim testator to make a Will.

- Muslim may make a Will either orally or in written. Yet, writtten Will is desirable.

- In case of a written Will, as to Muslim, such Will need not be attested. That too, the provisions of Indian Succession Act do not usually apply to them unless specifically mentioned in the said Act.

-At this juncture, it would be more useful to look into Section 68 of the Indian Evidence Act, 1872 and also Section 63 of the Indian Succession Act, 1925. Section 68 of the Indian Evidence Act, 1872 reads as follows;

"Proof of execution of document required by law to be attested.- 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:

Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (XVI of 1908) unless its execution by the person by whom it purports to have been executed is specifically denied."

-From the cursory look of the provisions of the said Section, the Court can easily cull out the following aspects;

a) If a document is required by law to be attested, the same should be proved by way of examining one attesting witness and otherwise the same cannot be used as evidence.

b) If a document is registered under the provisions of the Indian Registration Act, 1908 (XVI of 1908) and its execution is specifically denied, one attesting witness must be examined.

-Section 63 of the Indian Succession Act (Act XXXIX of 1925) reads as follows;

"Execution of unprivileged Wills.- Every testator, not being a soldier employed in an expedition or engaged in actual warfare or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:-

a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.

(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.

c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has been some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."

-The provision of the said Section can be vivisected as follows; a) In every Will, the concerned testator should sign or affix his mark or it shall be signed by some other person in his presence and that too by his direction.

b) The signature or mark of the testator or the signature of the person signing for him should appear to give effect to the writing as a Will.

c) The Will concerned should be attested by two or more witnesses. d) Each witness must see the sign or mark of the testator. e) Each witness should sign in the presence of the testator. f) No particular form of attestation is necessary.

-In Jaswant Kaur Vs. Amrit Kaur and others the Honourable Apex Court held that the 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. It is an acknowledged principle of law that each decision must be applied according to the facts and circumstances of the given case.

-In PPK Gopalan Nambiar Vs. Balakrishnan Nambiar and others, the Honoruable Apex Court held that there must be real, germane and valid suspicious features and not fantasy of the doubting mind.

-In Savithri and others Vs. Karthyayani Amma and others, the Honourable Apex Court held that the natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be suspicious circumstances.

-In R.Vasanthi Vs. Janaki Devi and others, the Hon'ble Court held that the registration of a Will may having regard to circumstances prove its genuineness.

-In Rabindra Nath Mukherjee and another Vs. Panchanan Banerjee (dead) by L.Rs and others, the Honourable Apex Court held that debarring natural heirs should not raise any suspicion with regard to execution of the Will in dispute.

- In Sridevi & Ors vs Jayaraja Shetty & Ors on 28 January, 2005, in was held that ''It is well settled proposition of law that mode of proving the will does not differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by Section 63 of the Indian Succession Act, 1925. The onus to prove the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and proof of the signature of the testator, as required by law, need be sufficient to discharge the onus. Where there are suspicious circumstances, the onus would again be on the propounder to explain them to the satisfaction of the court before the will can be accepted as genuine. Proof in either case cannot be mathematically precise and certain and should be one of satisfaction of a prudent mind in such matters. In case the person contesting the will alleges undue influence, fraud or coercion, the onus will be on him to prove the same. As to what are suspicious circumstances have to be judged in the facts and circumstances of each particular case. { For this see H. Venkatachala Iyengar v. B.N. Thimmajamma & Ors. [(1959) Supp.1 SCR 426] and the subsequent judgments Ramachandra Rambux v. Champabai & Ors.[(1964) 6 SCR 814]; Surendra Pal & Ors. v. Dr. (Mrs.) Saraswati Arora & Anr. [(1974) 2 SCC 600]; Smt. Jaswant Kaur v. Smt. Amrit Kaur & Ors. [(1977) 1 SCC 369]; and Meenakshiammal (Dead) thr. LRs. & Ors. v. Chandrasekaran & Anr. [(2005) 1 SCC 280]''

-In Dorairaj vs Doraisamy's case, it was observed as follows: '' At this juncture, my mind is reminiscent and redolent of the following decisions relating to Will.
1. 1994 (5) SCC 135 (Bhagwan Kaur vs. Kartar Kaur and others

2. 2003 (12) SCC 35 (Bhagat Ram and another vs. Suresh and others)

3. 2006 (13) SCC 449 (B.Venkatamuni vs. C.J.Ayodhya Ram Singh and others)

A perusal of the aforesaid judgments would cumulatively reveal that the propounder of a Will has to prove the due execution of the Will by the testator as per Section 63 (c) of the Indian Succession Act r/w Section 68 of the Indian Evidence Act. There could be no quarrel over the proposition that a Will has to be proved strictly in accordance with those aforesaid provisions of law.

(i) 2005(1) SCC 40 [Daulat Ram and other vs. Sodha and others]

(ii) 2005(1) SCC 280 [Meenakshiammal (Dead) through LRs. and others vs. Chandrasekaran and another]

(iii) 2005(1) CTC 443 [Sridevi and others vs. Jayaraja Shetty and others]

(iv) 2005(1) L.W.455 [Janaki Devi vs. R.Vasanthi and 6 others]

(v) 1989 (1) L.W.396 [Nagarajan and 3 others vs. Annammal]

(vi) AIR 1982 SC 133 [Smt.Indu Bala Bose and others vs. Manindra Chandra Bose and another]

(vii) AIR 1985 SC 500 [Satya Pal Gopal Das vs. Smt. Panchubala Dasi and others]

(viii) AIR 1991 Bom. 148 [Asber Reuben Samson and others v. Eillah Solomon and others]

(ix) 2008(2) MLJ 119 [M.Anandan and others vs. A.Dakshinamoorthy]

(x) 2006(4) L.W.942 [Gurdev Kaur & others vs. Kaki & others]

(xi) 2008(1) MLJ 1337 SC [Savithri and others vs. Karthyayani Amma and others]

(xii) 2007(3) L.W.916 [1. J.Mathew (died) 2. J.Damien and 3 others vs. Leela Joseph]

(xiii) (1990) 1 SCC 266 (Kalyan Singh, London Trained Cutter, Johri Bazar, Jaipur vs. Smt.Chhoti and others)

(xiv) (1990) 3 SCC 364 (Ram Piari vs. Bhagwant and others)

(xv) (1962) II Madras Law Journal Reports (Supreme Court) 27 (Rani Purnima Debi and another vs. Kumar Khagendra Narayan Deb and another)

(xvi) 1976 STPL (LE) 8415 SC (Smt.Jaswant Kaur vs. Smt.Amrit Kaur and others)

(xvii) 1984 (II) MLJ 133 (M.Krishnan vs. Ramaswami and others)

(xviii) 2004 (1) CTC 619 (SC) (P.S.Sairam and another vs. P.S.Rama Rao Pisey and others)

(xix) (2008) 8 MLJ 647 (Thayammal vs. Ponnusamy and another) Among the aforesaid decisions, the decision of this Court (Madras High Court) reported in 2001(3)CTC 283 [Corra Vedachalam Chetty and another vs. G.Jankiraman] is on the point that the Court while analysing the Will is acting as a Court of conscience. An excerpt from the above said decision would run thus: "26. This need for caution, cannot be exploited by unscrupulous caveators who choose to cull out imaginary suspisions with a view to prevent the legatees under the Will from claiming the benefit thereunder and to render the last Will of the deceased wholly ineffective. In this context, the conduct of the persons who raise the alleged ground for suspision is also to be looked at, to know as to how credible are the grounds for suspisions sought to be raised by such persons. In this case, the suspicion is sought to be raised by a person who is keenly interested in making the Will ineffective and whose conduct is far from one which would inspire confidence in truthfulness of his statements." As such, the cited precedent would also highlight that the Court should not attach undue importance to imaginary suspicions. All these aforesaid decisions are on the point that the Court should not at the time of analysing the validity of the Will proceed on the hypothesis that the Will is an invalid one.

-In Janki Narayan Bhoir vs Narayan Namdeo Kadam on 17 December, 2002, it was held as infra: '' We think it appropriate to look at the relevant provisions, namely, Section 63 of the Indian Succession Act, 1925 and Sections 68 and 71 of the Indian Evidence Act, 1872 which read: Section 63 of the Succession Act

"63. Execution of unprivileged wills.- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules:-

(a) .....

(b) .....

(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."

Section 68 of the Evidence Act

"68. Proof of execution of document required by law to be attested.- 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 it's execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:

Provided..."

Section 71 of the Evidence Act

"71. Proof when attesting witness denies the execution.- If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence."

To say will has been duly executed the requirements mentioned in clauses (a), (b) and (c) of Section 63 of the Succession Act are to be complied with i.e., (a) the testator has to sign or affix his mark to the will, or it has got to be signed by some other person in his presence and by his direction; (b) that the signature or mark of the testator, or the signature of the person signing at his direction, has to appear at a place from which it could appear that by that mark or signature the document is intended to have effect as a will; (c) the most important point with which we are presently concerned in this appeal, is that the will has to be attested by two or more witnesses and each of these witnesses must have seen the testator sign or affix his mark to the Will, or must have seen some other person sign the Will in the presence and by the direction of the testator, or must have received from the testator a personal acknowledgement of signature or mark, or of the signature of such other person, and each of the witnesses has to sign the Will in the presence of the testator. It is thus clear that one of the requirements of due execution of will is its attestation by two or more witnesses which is mandatory.''

-In Joseph Antony Lazarus (dead) by LRs. Vs. A.J.Francis, the Honourable Apex Court held that non-mention in the Will about other sons of testatrix while bequeathing the entire property to two sons alone would lead a genuine suspicious circumstances and further non- examination of Advocate who drafted the Will and Sub-Register before whom the Will was presented for registration also leads to suspicious circumstances.

-In Aplone D' Souza VS. John D'Souza, wherein the Honourable Apex Court held that no evidence to show that the contents of the Will have been read over and explained to the testatrix which leads to suspicious circumstances.

In Adivekka and others Vs. Hanamavva Kom Venkatesh (dead) by LRs. and another, The Honourable Apex Court held that non-examination of the propounder also creates suspicious circumstances and due to that adverse inference can be drawn.

In Gurdial Kaur and others Vs. Katrar Kaur and others, the Honourable Apex Court has held that the scribe of the Will in dispute has deposed that he has not known the executant of the Will and some of the natural heirs have been disinherited in the Will without any reason and therefore, suspicious circumstances have arisen.

In Rabi Vs. Jasu Leela, the Division Bench of this Court has held as follows;
"Under Section 32 of the Indian Succession Act, the property of an intestate devolves upon the wife or husband, or upon those who are of the kindred of the deceased, in the order and according to the rules thereinafter contained in the chapter. As per Section 47 where the intestate has left neither lineal descendant nor father nor mother, the property shall be divided equally between his brothers and sisters and the child or children of such of them as many have died before him. Here the parties are Christians. Under the Hindu Law, an adopted son is entitled to inherit ancestral property. Such adoptions are governed by either customary law or by the provision contained in the Hindu Adoptions and Maintenance Act, 1956. Under Hindu Succession Act, an adopted son is treated as natural son for the purpose of succession of ancestral property whereas under Indian Succession Act, an adopted son is not treated on par with natural son and he will not inherit the property of the parents by interestate succession."

In Vrindavanibai Sambhaji Mane Vs. Ramachandra Vithal Ganeshkar and others, the Honourable Apex Court held that as follows;
"There is also a large body of case law about what are suspicious circumstances surrounding the execution of a Will which require the propounder to explain them to the satisfaction of the Court before the Will can be accepted as genuine. A Will has to be proved like any other document except for the fact that it has to be proved after the death of the testator. Hence, the person executing the document is not there to give testimony. The propounder, in the absence of any suspicious circumstances surrounding the execution of the Will, is required to prove the testamentary capacity and the signature of the testator. Some of the suspicious circumstances of which the Court has taken note are (1) The propounder taking a prominent part in the execution of a Will which confers substantial benefits on him; (2)Shaky signature; (3)A feeble mind which is likely to be influenced; (4)Unfair and unjust disposal of property. Suffice it to say that no such circumstances are present here."

In Apoline D' Souza v. John D' Souza [(2007) 7 SCC 225], the Hon'ble Supreme Court held that the question as to whether due attestation has been established or not will depend on the fact situation obtaining in each case. Therein, it was held :
" Section 68 of the Evidence Act, 1872 provides for the mode and manner in which execution of the will is to be proved. Proof of attestation of the will is a mandatory requirement. Attestation is sought to be proved by PW 2 only. Both the daughters of the testatrix were nuns. No property, therefore, could be bequeathed in their favour. In fact one of them had expired long back. Relation of the testatrix with the respondent admittedly was very cordial. The appellant before us has not been able to prove that she had been staying with the testatrix since 1986 and only on that account she was made a beneficiary thereof. The will was full of suspicious circumstances. PW 2 categorically stated that the will was drafted before her coming to the residence of the testatrix and she had only proved her signature as a witness to the execution of the will but the document was a handwritten one. The original will is typed in Kannada, although the blanks were filled up with English letters. There is no evidence to show that the contents of the will were read over and explained to the testatrix. PW 2 was not known to her. Why was she called and who called her to attest the will is shrouded in mystery. Her evidence is not at all satisfactory in regard to the proper frame of mind of the testatrix. There were several cuttings and overwritings also in the will." In the aforementioned situation, the Will was said to have not been proved.

-"In P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar it has been held that it is the duty of the propounder of the Will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind."

-Now, with regard to the proof of the will, it is apposite to quote the observations of Gajendragadkar, J. in AIR 1959 SC 443 : "The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, reference must inevitably be made to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be is his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act, the opinion of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence untill one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters".

-In AIR 1949 Bom 266, Vishni Ram-krishna v. Nathu Vithal considering the requirements under Section 68 of the Evidence Act, a Hon'ble Division Bench of the Bombay High Court observed that although the Indian Succession Act requires that a will has to be attested by two witnesses. Section 68 of the Evidence Act 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. After stating thus the court observed "that 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, 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, Evidence Act."

-In AIR 1974 AP 13 K. Nookaraju v. P. Venkatarao a learned single Judge of A.P. High Court held that it is clearfrom Section 68 of the Evidence Act read with Section 63(c) of the Indian Succession Act, that it is sufficient even if one attestor is examined but that attestor should speak not only about the testator's signature or affixing his mark to the will or somebody else signing it in his presence and by his direction or that he had attested the will after taking acknowledgment from the testator of the signature or mark, but he must also speak that each of the witnesses had signed the will in the presence of the testator."
-In the case reported in AIR 1977 SC 63 (Beni Chand v. Kamla Kunwar) it was held that as D and two others had signed below the thumb impression of the testatrix and D was examined and his evidence showed that he and the two others saw the testatrix putting her thumb mark in the will by way of execution and that they all signed the will in token of attestation in the presence of the testatrix after she had affixed her thumb mark in the will, the execution was held proved in terms of Section 63 of the Indian Succession Act read with Section 68 of the Evidence Act.

-In AIR 1974 Andh Pra 13 (K. Nookaraju v, P, Venkatarao) it has been held that (at p. 15)," But, proof of execution by the testator alone is not sufficient. A will is a document which is required to be attested by at least two witnesses. Thai is clear from Clause (c) of Section 63 of the Indian Succession Act. Section 68 of the Evidence Act forbids the using of a document which is required by law to be attested as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive. What is required to be proved by calling at least one attesting witness is the execution of the document. By execution of a will is meant the whole process prescribed under Section 63 of the Indian Succession Act. Indeed its marginal note reads execution of unprivileged wills. Such execution includes not only the signing or affixing the mark of the testator to the will or by somebody else in his presence and by his direction but also attestation by two witnesses, Reading Section 63 it is quite plain that attestation as postulated by Clause (c) is a part of execution of a will. Such attestation has to be by two or more witnesses. Each of them must have either seen the testator sign or affix his mark to the will or has seen some other person sign the will in the presence and by the direction of the testator or has received from the testator a personal acknowledgment of his signature or mark or of the signature of such other person. It is also necessary that each of the witnesses shall sign the will in the presence of the testator. However, it is not incumbent that more than one witness be present at the same time. Nor, is there any particular form of: attestation prescribed."

-In (Venkatachala v. Thimmajamma) the Hon'ble Supreme Court held-
"As in the case of proof of other documents so in the case of proof of will it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.

However, there is one important feature which distinguishes will from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces and element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator."

-In Shashi Kumar Banerjee v. Subodh Kumar Banerjee the Hon'ble Supreme Court held-

"The mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a Will by S. 63 of the Indian Succession Act."

-In Abdul Jabbar Sahib v. Venkata Sastril the Hon'ble Supreme Court while considering the meaning of the word "attestation" in Section 3 of Transfer of Property Act held- "To attest is to bear witness to a fact. Briefly put, the essential conditions of a valid attestation under Section 3 are : (1) two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgment of his signature; (2) with a view to attest or to bear witness to this fact each of them has signed the instrument in the presence of the executant. It is essential that the witness should have put his signature animo attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him" a personal acknowledgment of his signature. If a person puts his signature on the document for some other purpose, e.g., to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness."

- in Venugopal Reddiar v. Gopalsami Reddiar (1988) 1 Mad LJ 440 at pages 442 and 443 held- "A reading of Section 63(c) of the Indian Succession Act with Section 68 of the Evidence Act establishes that a person propounding a will has to prove the will was duly and validly executed and that should be done by not merely establishing that the signature on the will was that of the testator, but also that the attestations were made in the manner contemplated by Clause (c) of Section 63 of the Indian Succession Act. It is true that it is not necessary under Section 68 of the Evidence Act to examine both or all the attesting witnesses. However, it does not follow that if one attestor proves that the testator had acknowledged his signature to him it is not necessary that the acknowledgement by the testator before the other attesting witness need be proved. In cases where two attesting witnesses had signed in the presence of each other, it is not necessary to examine both to prove that they had received the acknowledgement from the testator, but if the attestations are not made at the same time, it is necessary to prove that the attestators had signed so on the acknowledgement of the testator."

-In Kashibai v. Parwatibai . Their Lordships of the Supreme Court held-"A reading of Section 68 will show that 'attestation' and 'execution' are two different acts one following the other. There can be no valid execution of a document which under the law is required to be attested without the proof of its due attestation and if due attestation is also not proved, the facts of execution is of no avail .....Law does not emphasise that the witness must use the language of the section to prove the requisite merits thereof but it is also not permissible to assume something which is required by law to be specifically proved."

-In Indu Bala Bose v. Manindra Chandra Bose the Hon'ble Apex Court explained the meaning of the word "suspicious" in the following words-

"Needless to say that any and every circumstances is not a "suspicious" circumstance. A circumstance would be "suspicious" when it is not normal or is not normally expected in a normal situation or is not expected of a normal person."

-In Smt. Sushila Devi v. Pandit Krishna Kumar Missir their Lordships held-

"Prima facie, the circumstance that no bequest was made to the appellant by the testator would make the Will appear unnatural but if the execution of the Will is satisfactorily proved, the fact that the testator had not bequeathed any property to one of his children cannot make the Will invalid."

-In Gopalan Nambiar v. Balakrishnan Nambiar the whole of estate was given to a son in execution of the daughter and the Supreme Court held that itself is not sufficient to generate suspicion regarding the Will.

-The Privy Council in Suna Ana Arunachellam Chetty v. S.R.M. Ramaswami Chetty (1916) 35 Ind Cas 1 : (AIR 1916 PC 113) held-"Once the man's mind is free and clear and is capable of disposing of his property, the way in which it is to be disposed of rests with him, and it is not for any Court to try and discover whether a Will could not have been made more consonant either with reasons or with justice."; Similar view was taken by the Supreme Court in (Ishwardev Narain Singh v. Kamta Devi), the Supreme Court observed :--"The Court of probate is only concerned with the question as to whether the document put forward as the last Will and the testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court."

-The Privy Counsel in Judah v. Isolyne Shrojbashini Rose, AIR 1945 PC 174 held -"It was all along a common ground that she was unwell when she executed the will but that is a long way from saying that she had no testamentary capacity."

-The Privy Counsel in (Judah v. Isolyne Shrojbashini Rose), AIR 1945 PC 174 held -"It was all along a common ground that she was unwell when she executed the will but that is a long way from saying that she had no testamentary capacity."

-The Hon'ble Court in Lakshmi Ammal v. Lakshmanan (1988) 2 Mad LJ page 469 at page 476 held -"A will is a document required by law to be attested and under Section 68 of the Indian Evidence Act 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."

-In Girja Datt Singh v. Gangotri Datt Singh, it was held that in order to prove the due attestation of the Will, the pro-pounder of the Will, has to prove that the two witnesses saw testator sign the will and they themselves signed the same in the presence of the testator.

-While deciding the attestation of the Will, the Hon'ble Supreme Court in Naresh Charan Das Gupta v. Paresh Charan Das Gupta, -"It cannot be laid down as a matter of law that because the witnesses did not state in examination-in-chief that they signed the will in the presence of the testator, there was no due attestation. It will depend on the circumstances elicited in evidence whether the attesting witnesses signed in the presence of the testator. This is a pure question of fact depending on appreciation of evidence."

Other relevant cases as to ''Will'':
1. J. Naval Kishore vs D. Swarna Bhadran, J. Parasmul, P. ... on 3 October, 2007
2. Kamal Narayan Saini vs Smt. Sushil Bai on 4 May, 2007
3. Kasinath Patel vs Radha Bai And Ors. on 20 April, 2005
4. Smt Baby Dey vs. Shri Birendra Kr. Dutta & Anr .. .. on 15 June, 2009
5. Vallurupalli Devi Ravindra ... vs Vallurupalli Rukmini Bayamma And ... on 22 June, 2006
6. L. Bakthavatsalam's case. (2007)
7. Arvind S/O Bhaurao ... vs Smt. Indirabai W/O Balkrishna ... on 24 April, 2008
8. Benga Behera & Anr vs Braja Kishore Nanda & Ors on 15 May, 2007
9. Kartar Kaur vs Kewal Singh And Others on 16 September, 2009
10.Sugumal Duraisingh vs Annamani Ammal, on 14 August, 2009
11. M. Kuppusamy Naicker vs M. Mani on 2 September, 2009
12. Muniammal vs Annadurai (Deceased) on 23 July, 2008
13. Thayammal vs Ponnusamy on 24 July, 2008
14. R.Suburathinam's case , (2009)
15. Senniappa Chettiar vs The Commissioner, Hindu on 7 April, 2005
16. Shri Harish Chander Kawatra vs State And Others on 18 May, 2009
17. K. Chandrasekara Rao, Through ... vs G. Masilamani And Ors. on 26 April, 2005
18 Dorairaj vs Doraisamy.. on 12 August, 2009
In view of the above, we can understand that how a Will should be executed. I hope that this article is useful to the judicial officiers, lawyers, law students and others who seek information regarding execution of Will.
-x-
Oxford Dictionary of LAW, Third Edition, at page 428
Oxford Dictionary of LAW, Third Edition, at page 154
Oxford Dictionary of LAW, Third Edition, at page 11
Oxford Dictionary of LAW, Third Edition, at page 39
Oxford Dictionary of LAW, Third Edition, at page 39
Oxford Dictionary of LAW, Third Edition, at page 70 (see it to know more)
Oxford Dictionary of LAW, Third Edition, at page 226 in word '' legacy''
Oxford Dictionary of LAW, Third Edition, at page 123
Oxford Dictionary of LAW, Third Edition, at page 130
Oxford Dictionary of LAW, Third Edition, at page 154
Oxford Dictionary of LAW, Third Edition, at page 200
Oxford Dictionary of LAW, Third Edition, at page 210
Oxford Dictionary of LAW, Third Edition, at page 226
Oxford Dictionary of LAW, Third Edition, at page 227
Oxford Dictionary of LAW, Third Edition, at page 398
Oxford Dictionary of LAW, Third Edition, at page 398
See ruling to know more, ''Sugumal Duraisingh vs Annamani Ammal''
. 1977 (1) Supreme Court Cases 369
. AIR 1995 Supreme Court 1852
2007 (11) Supreme Court Cases 621
. 1999 (III) CTC 378
. AIR 1995 Supreme Court 1684
. 2006 (9) Supreme Court Cases 515
. 2007 (7) Supreme Court Cases 225
. 2007 (7) Supreme Court Cases 91
.1998 (4) Supreme Court Cases 384
. 2000 (3) Law Weekly 409
. AIR 1995 Supreme Court 2086
It was observed in '' Babu Singh & Ors vs Ram Sahai @ Ram Singh on 30 April, 2008 ''
It was observed in K.M. Varghese And Ors. vs K.M. Oommen And Ors. On 20/7/1993
. it was observed in '' T. Venkat Sitaram Rao And Anr. vs T. Kamakshiamma And Ors. On 20/12/1977; AIR 1978 Ori 145''
. it was observed in AIR 1999 Mad 149 ; A. Ramesh vs A. Manohar Prasad And Ors.
. 2008 (1) CTC 97
. 2005 (4) ALD 859




1 2 3 4 5
Rate this article!     Poor
Excellent    

Most viewed articles in Civil Laws category
Jurisdiction Of Civil Court Under Civil Procedure Code
Condonation of Delay and Law of limitation
Order 37, CPC, Summary Suits
Protection against eviction and fixation of fair rent
Who can be a trustee & beneficiary of a trust under Indian Trust Act 1882
Definition & concept of property
The Law Relating To Injunctions
The Deed Of Gift
Significance of Lok Adalats in present scenario.
Succession Certificate
Promissory Note in India
Execution of A Will
Vicarious Liability of State in Sovereign Functions
Agency By Estoppel
What Deeds Are To Be Registered Compulsorily
Adverse Possession & its applicability in Lease & License
Most recent articles in Civil Laws category
Section 63 and 63-1A of the Maharashtra Tenancy and Agricultural Lands Act
Restitution W.r.t. to Civil Procedure Code 1908
Caveat Petition
Family Arrangements In India
Strengthening Civil Society
Limitations in CPC-Execution of Foreign Judgments in India
Jurisdiction of Civil Court and Place of Suing
Disposal of Civil Cases: Perestroika
Can the doctrine of lis pendens prevail over the rule of res judicata
Sale of Immovable Property
Promissory Note in India
Suit For Specific Performance of Contract in India
Condonation of Delay in case Appeals
Order 37, CPC, Summary Suits
Res Judicata - A Brief Study
Amendment to Pleadings and the approach of the Judiciary

Article Comments

Posted by VASUKI U M on September 19, 2016
Before the execution of the will, Testator has passed away. How to register the document? Witnesses are eligible for execution of the Will

Posted by YOGEESH RAO V on May 23, 2016
Will u please provide me a draft copy of WILL to be executed and the procedure thereof.

Posted by Advocate S. K. Mali, Kolhapur on July 22, 2015
Sir, please, can you mail on my above e-mail address, that What is the procedure of the Court in civil matters like what meant by Exh. A, Exh.B, Exh.C, Exh.D, what are the steps, chronologically

Posted by uttem on February 21, 2015
sir very useful ur work is fine and efficient. regards.

Posted by Raghu.M on October 04, 2014
Hello!
This is a case "challenging a will deed" my father was suffering from "DIMENCIA" (patient forgets everything including their wife, kids, house location etc) in such circumstatnces one of her elder daughter has made a "will" on his behalf and took him and 2 other wittnesses and registred the will,i have medical certificate from doctor who treated him for this Dimencia problem, now my question is, will this "WILL DEED be proved to be FAKE?? and falsely prepared by one of the greedy daughter, Kindly someone reply for this Q'n, thanks

Posted by Bikash Singh on March 24, 2014
I want to know the court fee for a probate case in Ghaziabad. Pls also
provide contact no. of an Advocate looking after succession matters in
Ghaziabad

Posted by Darwin on October 19, 2012
my mother omana expired on 1986 when i was 2 years old.my grandfather
gave a registered gift deedin 1979 and in 2007 he cancelled it(gift
deed) but i know registered gift cant be cancelled.my uncle sold some
property belonging to my mother. in 2008 we received status quo for my
mothers property .wat steps i can take to claim my mothers property

Post Your Comments
Name

Email

Your comments

Note : Your email address is only visible to admin, other members / users cannot see it.

You can use following FXCodes


BOLD : [b]
Italic : [i]

[b] Legal Services India [/b] is a [i]nice website[/i].
[url= http://www.legalservicesindia.com/article/ ]click here to visit.[/url]

Legal Services India is a nice website.
Click here to visit

 

Note : Currently, user comments are moderated and will be posted only after approval.



Welcome!
Please login or register a new free account.

Random Pick
With the advent of M- Commerce industry, mobile developers can now avail protection for software under the following Intellectual Property Law.

Statistics
» Total Articles
1380
» Total Authors
3991
» Total Views
15568766
» Total categories
40

Law Forum


Legal Articles

Lawyers in India- Click on a link below for legal Services

lawyers in Chennai
lawyers in Bangalore
lawyers in Hyderabad
lawyers in Cochin
lawyers in Pondicherry
lawyers in Guwahati
lawyers in Nashik

lawyers in Jaipur
lawyers in New Delhi
lawyers in Dimapur
lawyers in Agra
Noida lawyers
lawyers in Siliguri

For Mutual consent Divorce in Delhi

Ph no: 9650499965
For online Copyright Registration

Ph no: 9891244487
Law Articles

lawyers in Delhi
lawyers in Chandigarh
lawyers in Allahabad
lawyers in Lucknow
lawyers in Jodhpur
Faridabad lawyers

lawyers in Mumbai
lawyers in Pune
lawyers in Nagpur
lawyers in Ahmedabad
lawyers in Surat
Ghaziabad lawyers

lawyers in Kolkata
lawyers in Janjgir
lawyers in Rajkot
lawyers in Indore
lawyers in Ludhiana
Gurgaon lawyers

TOP

India's Most Trusted Online law library
Legal Services India is Copyrighted under the Registrar of Copyright Act ( Govt of India) 2000-2016
 ISBN No: 978-81-928510-1-3