Back
HIGH COURT OF DELHI
PRADEEP NANDRAJOG AND PRATIBHA RANI, JJ.
Jagdish Prasad – Appellant
Versus
State – Respondent
FAO (OS) No. 355 of 2008
Decided On : 03-03-2015
Succession Act, 1925 - Section 63 - Indian Evidence Act, 1872 - Section 68, 69 - Will - Execution - Proof - Evaluation of - Two attesting witnesses of the Will were dead - Execution of the Will and had signed as attesting witnesses thereon were dead - Since a Will is propounded after the testator dies, inherently no law can require the testator to step into the witness box to prove the Will - Non consideration of testimony of the appellant - Single Judge has not evaluated the evidence of the witnesses keeping in view Section 69 of the Evidence Act - Evaluation is necessary to find out the credibility of two attesting witnesses to the Will who have died or were not available and - Evaluation is also necessary to find out the genuine signatures of the testator and one attesting witness have been proved - appeal we restore Testamentary Case for decision afresh - Appeal is allowed - Impugned decision is set aside.
Certainly. Based on the provided legal document, here are the key points:
The law requires that a Will must be executed in accordance with specific formalities, including signing or affixing a mark by the testator and attestation by at least two witnesses, each having seen the testator sign or acknowledge the Will (!) (!) .
For proving the execution of a Will, at least one attesting witness must be examined if they are alive and capable of giving evidence, as mandated by law. The examination of a single attesting witness can suffice to establish due execution, provided that witness's testimony is credible and satisfies the necessary requirements (!) (!) .
When both attesting witnesses are deceased or unavailable, the law provides alternative methods of proof, such as proving the handwriting of the signatures or attestation, in accordance with specific provisions. This ensures that the absence of witnesses does not necessarily prevent the Will from being proved (!) (!) (!) .
The evaluation of witnesses' credibility and the evidence regarding the execution of the Will is crucial. The evidence must be carefully examined to determine whether the witnesses' testimonies are reliable and whether the signatures of the testator and witnesses have been properly proved (!) (!) (!) (!) .
The law emphasizes that a Will is typically probated after the testator's death, and therefore, the testator is not required to testify in court to prove the Will's validity. The focus is on the proper attestation and execution as per statutory requirements (!) (!) .
If the evidence regarding the execution and attestation of the Will is inadequate or the witnesses' testimonies are not credible, the Will may not be proved successfully. Conversely, credible evidence can establish the validity even in the absence of witnesses who are deceased, through alternative proof methods (!) (!) (!) .
The legal provisions and principles aim to balance the formal requirements for Will execution with practical considerations, ensuring that the absence of witnesses does not automatically invalidate a Will if proper proof of signatures and handwriting is provided (!) (!) .
The court has the authority to restore a case for fresh decision if the evidence has not been properly evaluated in light of the relevant legal provisions, especially regarding the credibility of witnesses and proof of signatures (!) (!) .
Please let me know if you need further elaboration or assistance.
Pradeep Nandrajog, J.
1. Having successfully proved ownership of the testatrix (Late Mata Shantanand) through Ex.PW-1/3 in respect of property No.204, Block-7, Jheel Khureji, Geeta Coloney, Delhi and the death of the testatrix on November 13, 1984, the appellant has failed to obtain a probate of the Will Ex.PW-1/2, statedly executed by Late Mata Shantanand. The reasoning of the learned Single Judge is premised on a co-joint reading of Section 63 of the Indian Succession Act, 1925 read with Section 68 of the Indian Evidence Act, 1872 and three decisions of the Supreme Court reported as AIR 1955 SC 343 Girija Datt Singh Vs. Gangotri Datt Singh, (2003) 2 SCC 91 Janki Narayan Bhoir Vs. Narayan Namdeo Kadam, and (2007) 9 SCC 728 Banga Bihara Vs. Baraja Kishore Nanda, for the reason it was the claim of the appellant before the learned Single Judge that the two attesting witnesses of the Will were dead.
2. Pithily put, the learned Single Judge has held that as per Section 63 of the Indian Succession Act, 1925, a Will needs to be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will and each of the witnesses has signed the Will with the requisite ‘animus attestandi’. On proof, reliance has been placed on Section 68 of the Indian Evidence Act, 1872, emphasizing that it enjoins, by way of proof, that a document required by law to be attested shall be proved by calling for the purpose of proving its execution, at least one attesting witness.
3. Three passages have been quoted from the three decisions. From the decision reported as AIR 1955 SC 343 Girija Datt Singh Vs. Gangotri Datt Singh, the quoted passage with respect to in what manner the propounder has to discharge the burden to prove the Will is as under:-
“(a) it was signed by the testator in the presence of the two attesting witnesses;
(b) the witnesses should have seen the testator sign the Will, or have been told by him that he had signed it;
(c) The attesting witnesses, or one of them must depose to these facts, in the subsequent probate or other action concerning the Will. In the absence of attesting witnesses, of course, it is open to the propounder to prove the Will like any other document, provided that proof of the facts mentioned in Section 63 and 68 are led.”
4. From the decision reported as (2003) 2 SCC 91 Janki Narayan Bhoir Vs. Narayan Namdeo Kadam, the quoted passage with respect to in what manner the propounder has to discharge the burden to prove the Will is as under:-
“Section 68 of the Evidence Act speaks of as to how a document required by law to be attested can be proved. According to the said section, a document required by law to be attested shall not be used as evidence until on attesting witness at least has been called for the purpose of proving its execution, if there by an attesting witness alive, and subject to the process of the court and capable of giving evidence. It flows from this section that if there be an attesting witness alive capable of giving evidence and subject to the process of the court, has to be necessarily examined before the document required by law to be attested can be used in an evidence. On a combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act, it appears that a person propounding the Will has got to prove that the Will was duly and validly executed. That cannot be done by simply proving that the signature on the Will was that of the testator but must also prove that attestations were also made properly as required by clause (c) of Section 63 of the Succession Act. It is true that Section 68 of the Evidence Act does not say that both or all the attesting witnesses must be examined. But at least one attesting witness has to be called for proved due execution of the Will as envisaged in Section 63. Although Section 63 of the Succession Act requires that a Will has to be attested at least by two witnesses, Section 68 of the Evidence Act provid
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
