Back
C. S. SUDHA
MANNARAKKAL MADHAVI (DIED) W/O RARU – Appellant
Versus
NANGANADATH PULPARAMBIL DEVADASAN (DIED) S/O RARU – Respondent
JUDGMENT :
C.S. SUDHA, J.
1. Are both the attesting witnesses in a Will required to attest simultaneously? Is it mandatory that one attesting witness testify regarding attestation by the other witness also? What should be the course followed in case the testimony of the attesting witness/witnesses is found unsatisfactory or when attestation is denied, or they fail to recollect the execution of the document? Is the propounder left with no or any remedy? These questions inter alia arise for consideration in this appeal.
2. This appeal has been filed by defendants 1 to 3 and 5 against the judgment dated 23/09/1996 on the file of the Subordinate Judge's Court, Kozhikode. The respondents are the plaintiff and defendants 4 and 6 to 9. The parties in this appeal will be referred to as described in the suit.
3. Initially, the appeal came up before a Division Bench of this Court. One learned member of the Bench upheld the impugned judgment and dismissed the appeal, whereas the other learned member, allowed the appeal and set aside the impugned judgment. The last paragraph of the said judgment dated 12/10/2010 reads:
A Will can be validated by the testimony of one attesting witness if it meets the statutory requirements, even if the other witness is unavailable or does not support the execution.
Proof of execution of Will – There can be no interference to Will which stands proved unequivocally.
The courts ruled that the failure to prove the valid execution and attestation of a Will invalidates claims of property based on it, emphasizing statutory requirements for witness testimony.
Section 68 of Indian Evidence Act reads as proof of execution of document required by law to be attested.
The burden of proof for the execution of a Will lies with the propounder, who must establish compliance with statutory requirements, including the testimony of attesting witnesses.
Section 71 of Act 1872 has no application in a case where one attesting witness who alone had been summoned fails to prove execution of Will.
The propounder of a will must prove due execution and attestation, particularly when suspicious circumstances exist; mere registration does not guarantee authenticity.
The execution of a will must comply with statutory requirements, including proper attestation by witnesses; failure to do so invalidates the will.
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
