The judgment emphasizes the mandatory requirements for the due execution of a Will under section 63 of the Indian Succession Act and the need to prove attestation by witnesses as per the provisions of the Indian Evidence Act.

VINOD GOEL, J.

1. This is an appeal under section 299 of the Indian Succession Act, 1925 against the Judgment dated 30.07.2016 passed by the court of Ld. Additional District Judge-06, Central District, Tis Hazari Court, Delhi (“ADJ”) in Probate Case no.58/10 (new no.42342/16) dismissing the petition of the appellant/petitioner for grant of Letters of Administration in respect of Will dated 21.03.2002.

2. The appellant filed a petition for grant of Letters of Administration in respect of Will executed by her father late Sh. Hari Mohan Bhandari dated 21.03.2002. It was registered with the concerned Sub Registrar. By virtue of this Will, the deceased bequeathed all his movable and immovable properties amongst his legal heirs. The testator had died on 16.09.2009. The appellant is one of the beneficiaries under this Will.

3. The short question that has arisen in this appeal for adjudication is whether the Will dated 21.03.2002 was proved in accordance with section 63 of the Indian Succession Act, 1925 (“ISA”) and Section 68 of the Indian Evidence Act, 1872 (“IEA”).

4. Section 63 of the “ISA” enlists the requirements to execute a will as under:

“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) 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 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; 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.”

5. From a bare reading of the above provision, it is clear that one of the mandatory requirements of due execution of a Will is its attestation by two or more witnesses. Proof of a Will shall strictly be in terms of the above said provision. To say that a Will has been duly executed, the requirements mentioned in clauses (a), (b) and (c) of Section 63 of the “ISA” 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; and (c) the most important pre-requisite being that 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 acknowledgment 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.

6. Section 68 of the “IEA” elaborates the way by which a document, which is required to be attested, is to be proved. It reads as under:

“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 its exe