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2008 (2) KLO 1725
IN THE HIGH COURT OF KARNATAKA
N. Kumar, J.
TOS No. 1 of 2006
J. T. Surappa & Another - Plaintiffs
Vs.
Sri Satchidhanandendra SSPCT & Others - Respondents
Decided on 16-4-2008
INDIAN SUCCESSION ACT, 1925 - Section 63 r/w Section 68: [N.Kumar, J] Execution of a Will - Attestation and Execution - Procedure - Held, The Will that is executed to be in accordance with Section 63 of the Act read with Section 68 of the Evidence Act. The Will is a document required by law to be attested. The execution of Will must include both execution and attestation. "Attestation" and "execution" are different acts, one following the other. There can be no valid execution without due attestation, and if due attestation is not proved, the fact of execution is of no avail. The Court has to find out whether the Will bears the signature of the testator and the said signature is placed at a place with the intention of giving effect to the Will. Further the said Will has been attested by two witnesses and whether the witnesses have seen the testator affixing his signature to the Will in their presence and if not at least they receive from the testator a personal acknowledgement of his signature or mark and each of them shall sign the Will as attesting witness in the present of the testator though it shall not be necessary that both of them should be present at the same time. Section 68 of the Evidence Act deals with proof of execution of documents required by law to be attested. A Will is a document which requires to be attested under Section 63 (c) of the Act. Therefore, the said document shall not be used as evidence until at least one attesting witness 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. Whether such a Will is registered or not registered, in the eye of law it makes no difference. Even if the said Will is registered under the provisions of the Indian Registration Act, 1908 whether the execution of the Will is admitted or denied, it is necessary to call an attesting witness in proof of the execution of the said Will. Under no circumstances the proof of execution of the Will is dispensed with in law. It is only after the Court is satisfied that all these tests are successfully passed, the Court can declare that Will is executed in accordance with law, as such it is valid and enforceable.
INDIAN SUCCESSION ACT, 1925 - Section 63: [N.Kumar, J] Execution of unprivileged Wills - Three rules to be the complied with -Held, The first Rule is that the said Will should be signed by the testator. If he is incapable of signing, his thumb mark is to be affixed. If some other person is signing the Will, the other person shall affix his signature in the presence of the testator and on his direction. Therefore, it is mandatory that the Will should contain the signature or thumb mark to authenticate the same, without which it cannot be said to be the Will of the testator. The second rule is the signature or the mark shall be so placed on the Will, that it shall appear that it was intended thereby to give effect to the writing as a Will. The signature of the testator may be found on all pages at the end also. According to sub-section (b), the signature need not necessarily be at the end of the Will. It does not matter in which part of the Will the testator signs. If a Will is written on several sheets of paper, with all sheets severally signed, one signature on the last sheet made with the intention of executing the whole is sufficient. Mere signature found on the Will at some place is not sufficient. If the signature is found at some place of the page and it does not appear that such a signature was put with any such intention or giving effect to the Will, then the signature or mark has no value. The test is whether the said signature found on the Will, conveys the intention of the testator to give effect to the writing as a Will. The third rule is that the Will requires attestation by two or more witnesses. Attestation means the persons, who have affixed their signature as attesting witness, saw the executant, (in the case of a Will a testator), sign or affix his mark to the instrument. Not only the attesting witness should sign the Will in the presence of the testator, but they should also see with their eyes the testator signing the instrument or if they are not present at the time of signing the instrument, the testator should acknowledge to them his signature or mark to the said instrument.
INDIAN SUCCESSION ACT, 1925 - Section 63 (c): [N. Kumar,J] Requirement of due attestation to prove the Will - Held, To prove due attestation under Section 63(c) it is open to the propounder of the Will to examine a person who was present at the time of attestation, who saw the testator acknowledging to such attesting witness who was not present at the time of attestation, who saw the testator acknowledging to such attesting witness who was not present at the time of the testator affixing his signature to the Will, acknowledging his signature or mark and then the attesting witness signing the Will in the presence of the testator. That would meet the requirement of clause(c) of Section 63. If an attesting witness is not present when the testator affixed his signature and if the testator does not acknowledge his signature to the said attesting witness, before the attesting witness affixes his signature to the Will, then this requirement of law is not fulfilled and the Will is not proved. In those circumstances, if the other attesting witness is not examined or other evidence is not adduced regarding due attestation, the requirement of Section 63(c) is not complied with, Willis not proved. On facts, held, Evidence on record clearly discloses that testator was not in a sound state of mind at the time when the Will come into existence and it has come into existence under suspicious circumstances. The propounder of the Will has failed to remove the suspicious circumstances. Petitioner are not entitled to the letters of administration sought for.
Kumar, J.
1. This petition/suit is filed for grant of letters of administration with a copy of the Will, which came into existence six hours prior to the death of the testator in ICU of the Hospital. By an order dated 1.3.2006 this Probate Petition was ordered to be converted into an original suit. Therefore, the parties to the proceedings are herein referred to as the plaintiffs and defendants in a suit.
2. The first plaintiff and defendants 5 and 6 are brothers. Second plaintiff is the son of the first plaintiff. Defendants 2 and 3 are the daughters of the 6th defendant. 1st and 4th defendants are beneficiaries under the Will.
3. Sri J.T.Ananthaswamy is the eldest brother of the first plaintiff and defendants 5 and 6. He died on 24.1.2003 at Mysore. He was a divorcee. He had no issues. The case of the plaintiffs is, that Sri J.T.Ananthaswamy has left an unregistered Will dated 24.1.2003 bequeathing all his properties in favour of the plaintiffs and defendants 1 to 4. Annexure-A to the plaint contains the assets and Annexure-B contains the liabilities. Therefore, the plaintiffs have filed the above suit for grant of letter of administration with the Will annexed.
4. Notice to the defendants was ordered. A citation was ordered and it was duly published in the Indian Express. Notices were duly served on the defendants. Defendants 5 and 6, the two brothers of the deceased testator filed an impleading application and they came on record. Defendants 2 and 3 who are the daughters of the 6th defendant filed their statement of objections contesting the Will, though they were also the beneficiaries under the Will. Section 295 of the Indian Succession Act, 1925 provides that, when there is contention, the proceeding shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908, in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant. Therefore, the Court directed the Registry to register this probate petition as an original suit on the plaintiffs paying the requisite Court fee. The plaintiffs paid the requisite Court fee and by an order dated 1.3.2006 the probate petition was ordered to be converted into an original suit.
5. The first defendant filed his objections admitting the execution of the Will. It is defendants 2 and 3 who filed objections contesting the Will. They specifically contended that the deceased J.T.Ananthaswamy never executed any Will. The Will dated 24.1.2003 is a concocted one. J.T.Ananthaswamy died intestate. First plaintiff and defendants 5 and 6 are the legal heirs to succeed to the estate of deceased J.T.Ananthaswarny. The alleged Will of J.T.Ananthaswamy is forged by the plaintiffs to suit their needs. On 24-1-2003 the date of the alleged execution of the Will at Basappa Memorial Hospital at Mysore, no one in particular Sri. V.Shankarayanarayana and Y.Vasudeva, the attesting witnesses to the said Will were permitted to enter the hospital to see the deceased J.T.Ananthaswamy. On 24.1.2003 the deceased was not in a position to sign or execute any document. He died on that day at around 2.30 PM. In fact much before the date of his death and for long time the deceased was not in a position to sign, execute any document and more so the, alleged Will. The properties of the deceased both movable and immovable are worth lakhs of rupees. The plaintiffs have never spent any amount on the deceased. The first plaintiff after the death of J.T.Ananthaswamy has illegally drawn the money from the deceased S.B. Account of Central Bank of India, K.R.Circle, Mysore and S.B. Account of Syndicate Extension Counter at Marimallappa’s High School, Mysore, on the alleged ground that he is the nominee of the deceased J.T.Ananthaswamy. Therefore, they have sought for dismissal of the suit.
6. On 12.4.2006 the Court framed the following issue:
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