Non-compliance with the attestation requirements under Section 63 of the Indian Succession Act invalidates a Will, necessitating proper evidence for testamentary intentions.

JUDGMENT

In a suit for partition, a testamentary succession was claimed based on Ext.B1 registered Will as that of the mother Theyamma by the defendants. The trial court by holding that the Will is genuine dismissed the suit, against which the plaintiff came up in appeal.

2. The parties are siblings. Theyamma died on

29/03/2003. The Will was registered at the house of Theyamma by summoning the Registrar by 5.20 p.m. on 09/01/2003. The propounders gave evidence as DW1 and DW5 and the attesting witnesses were examined as DW2 and DW4. Exts.A6 and A26 were produced to show the ailment of the testator. It shows that she was a chronic diabetic patient and was suffering from various ailments including ailment to her eyes during the relevant period.

3. The inconsistency and contradictory version given by two attesting witnesses and the propounders regarding the persons who were present at the time of its execution and registration causes very serious doubts regarding the due execution of Ext.X2 registered Will. DW2 says that the testator's two younger daughters alone were present apart from the Registrar and scribe and two attesting witnesses at the time of its execution and registration. But DW4, the other attesting witness had given an entirely different version stating that the two uncles were also present at the time of its execution and registration. One of the propounders, DW1 had given yet another version by admitting his presence at the relevant time.

4. Yet another reason is also available to non-suit the defendants due to the non-compliance of mandate under Section 63 (c) of Indian Succession Act . Even admittedly, DW2, one of the attesting witnesses did not receive any acknowledgment regarding the signature as that of the testator found affixed in the testament, the registered Will. He did not witness its execution or preparation. According to him, it was got prepared on the previous day. This would show the non-compliance of mandate under (c) of the Act, that is, the attesting witness must see affixture of signature by the testator on the testament or should receive from the testator a personal acknowledgment of his signature or mark affixed as that of him on the testament. The oral evidence tendered by DW2, the attesting witness, would sufficiently show that it was prepared and signed by the testator on the previous day and at that time, he was not present in the house. He came to the house on the next day on getting a telephone call. By that time, the Will was got prepared and signed by the testator, but he did not receive any personal acknowledgment regarding the signature affixed as that of the testator on the testament. The legal position laid down by the Apex Court in Janki Narayan Bhoir v. Narayan Namdeo Kadam [(2003)2 SCC 91) assumes importance at this juncture. The relevant portion of the judgment is extracted below for reference:

“It is thus clear that one of the requirements of due execution of a will is its attestation by two or more witnesses, which is mandatory. 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 one attesting witness at least has been called for the purpose of proving its execution, if there be 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 Success