IMPORTANT POINTS:
The persons who were signed on a Will as attesting witnesses without knowing the identity of the testator/testatrix and without ascertaining their identity cannot be a sufficient compliance under Section 63 (c) of Indian Succession Act. The person who is having no prior acquaintance with the testator/testatrix, having no information regarding their identity, are incompetent to stand as attesting witness in compliance of Section 63 (c) of Indian Succession Act.

1. A Will produced and exhibited as Ext.B6 as that of one Padmalakshmy is under challenge mainly on the competency of attesting witnesses - PW2 and DW2.

2. Both the witnesses though admitted their respective signature in Ext.B6, both of them admitted that they had no prior acquaintance with the testatrix and they could not say the identity of the testatrix except the fact that two women came for the purpose of execution of Ext.B6 Will. Divergent findings were rendered by the trial court by dismissing the suit and by the First Appellate Court by granting a preliminary decree for partition.

3. The question came up for consideration is :

In the case of a Will or Codicil, is it necessary that the attesting witness must be the person having prior acquaintance with the testator/testatrix and must be in a position to identify the testator/testatrix, if not, whether it would be sufficient compliance of requirement as mandated under Section 63 of the Indian Succession Act ?

4. Clause (b) of Section 63 of Indian Succession Act, 1955 (for short the Act) is extracted below for reference :

“(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”

5. Clause (b) to Section 63 is an additional mandate to be complied with in the matter of Will or Codicil apart from the documents required by law to be attested. Different treatments were given in the matter of Will or Codicil under Section 63 of the Act rather than the documents required by law to be attested. The document required by law to be attested has to be proved in accordance with the attestation enumerated under Section 3 of Transfer of Property Act, which is pari materia with clause (c) of Section 63 of Indian Succession Act. Clauses (a) and (b) were incorporated under Section 63 so as to give rigidity in the matter of proof of Will and Codicil as the same would come into question only after the death of the testator who had drawn it. Clause (b) mandates that the signature or the mark “shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will”, which stands for something more rather than a mere execution. It requires some kind of emphasis regarding its execution by the testator either himself or through a person. It has to be read along with the mandate under clause (c) of Section 63 which is pari materia with that of Section 3 of Transfer of Property Act to the expression “attested”. A conjoint reading of clauses (b) and (c) of Section 63 of Indian Succession Act would make the legal position clear that in the matter of Will or Codicil, a mere execution as in the case of a document required by law to be attested is not sufficient. The expression that the signature of the testator or the person signing on his behalf “ shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will” has to be read along with the mandate under clause (c) of Section 63 of Indian Succession Act. Necessarily, the person who stand as attesting witness should possess the necessary animus to stand as an attesting witness to a “Will or Codicil”. There should be an harmonious interpretation to clauses (a), (b) and (c) of Section 63 of Indian Succession Act to give full effect to the legislative intention in the matter of a Will or Codicil, which would come into question and come into play only after the death of the testator/testatrix. Necessarily, the attesting person should know the identity of the testator while standing as an attesting witness. The persons who were signed on a Will as attesting witnesses without knowing the identity of the testator/testatrix and without ascertaining their identity cannot be a sufficient compliance under Section 63 (c) of Indian Succession Act. The person who is having no prior acquaintance with the testator/testatrix, having no informat