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SUPREME COURT OF INDIA
B.N. KIRPAL AND M.B. SHAH, JJ.
Kannian and another, Appellant
VERSUS
Sethurama, Respondent.
Civil Appeal No. 943 of 1989,
D/- 9-2-2000.
Will - Attesting Witnesses - Validity of Unregistered Will
Fact of the Case:
The trial Court found that the Will propounded by the appellants had not been proved. The lower appellate Court reversed this finding, but the High Court restored the decision of the trial Court. The Will was unregistered and two of the attesting witnesses were dead, while one was not produced. The trial Court did not rely on the evidence of the scribe to establish the validity of the Will.
Finding of the Court:
The High Court concluded that the Will propounded by the appellants was not duly proved, as it could not be established that the scribe was an attesting witness.
Issues: Validity of unregistered Will, reliance on evidence of scribe, attesting witnesses
Ratio Decidendi: The decision of the High Court was based on the lack of satisfaction that the Will was duly proved, particularly in relation to the evidence of the scribe and the attesting witnesses.
Final Decision: The appeal was dismissed, and no costs were awarded.
An unregistered will can be valid; however, its validity depends on whether it has been properly proved in accordance with the relevant legal requirements. The key considerations include the manner in which the will was executed, the presence and credibility of attesting witnesses, and whether the will complies with statutory formalities.
In particular, the evidence of attesting witnesses is crucial to establish the authenticity and validity of an unregistered will. If the attesting witnesses are unavailable or their testimony is not credible, it may be challenging to prove the will's validity. Additionally, the absence of registration does not automatically invalidate a will, but it may affect the evidentiary proof required to establish its validity in court (!) (!) .
Therefore, while unregistered wills are generally recognized as valid under the law, their validity is contingent upon proper proof and compliance with legal formalities, especially regarding attestation.
JUDGMENT :- After hearing the learned counsel for the appellants, we are not inclined to upset the judgment of the High Court. The trial Court had come to the conclusion that the Will propounded by the appellants had not been proved. The lower appellate Court reversed that finding and the High Court restored the decision of the trial Court.
2. The Will was an unregistered one. There were stated to be three attesting witnesses - two of them are dead and one was not produced. The trial Court did not rely upon the evidence of the scribe for the purpose of establishing the validity of the Will. The lower appellate Court merely stated, while reversing the decree, that the scribe had been examined to prove the will. How the scribe was examined, what was stated by him and whether that statement amounted to the scribe being regarded as an attesting witness was not held by the lower appellate Court. The High Court on the other hand dealt with the evidence of the scribe and then came to the conclusion that he could not be regarded as an attesting witness.
3. Under the circumstances, the decision of the High Court calls for no interference as we are not satisfied that the Will propounded by the appellants was duly proved. The appeal is dismissed. No costs.
Appeal dismissed.
FOR CITATION: AIR 2000 SC 3522(1)
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