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The Technicality of Law Cannot Be Overlooked in Case of Will Attestation and Its Proof. 2001 Sc

The Technicality of Law Cannot Be Overlooked in Case of Will Attestation and Its Proof. 2001 Sc

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While it is true that Arunachalam, in the facts of the matter under consideration did write the Will and has also signed it but it is of utmost requirement that the document ought to be signed by the witnesses in order to have the statutory requirement fulfilled. Arunachalam has signed the document as a scribe not as a witness, if there were no signatures available as witness, probably we would have to specifically deal with such a situation and to consider that aspect of the matter but presently in the facts situation of the matter under consideration, we have the advantage of two attesting witnesses, none of whom have been examined and the factum of their non-availability also does not satisfactorily been proved. The requirement of the statute when Arunachalam himself has specifically identified himself as Writer and not as a witness though in his evidence, he tried to improve the situation, but this improvement however, cannot said to be accepted. The Will thus fails to have its full impact and its effect stands out to be non est.
While it is true that Arunachalam, in the facts of the matter under consideration did write the Will and has also signed it but it is of utmost requirement that the document ought to be signed by the witnesses in order to have the statutory requirement fulfilled. Arunachalam has signed the document as a scribe not as a witness, if there were no signatures available as witness, probably we would have to specifically deal with such a situation and to consider that aspect of the matter but presently in the facts situation of the matter under consideration, we have the advantage of two attesting witnesses, none of whom have been examined and the factum of their non-availability also does not satisfactorily been proved. The requirement of the statute when Arunachalam himself has specifically identified himself as Writer and not as a witness though in his evidence, he tried to improve the situation, but this improvement however, cannot said to be accepted. The Will thus fails to have its full impact and its effect stands out to be non est.

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05/01/2012

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http://JUDIS.NIC.IN SUPREME COURT OF INDIAPage 1 of 18
CASE NO.:Appeal (civil) 3164-3166 of 1997PETITIONER:N. KAMALAM (DEAD) AND ANR.Vs.RESPONDENT:AYYASAMY & ANR.DATE OF JUDGMENT: 03/08/2001BENCH:A.P. Misra & Umesh C. BanerjeeJUDGMENT:BANERJEE, J.The latin expressions onus probandi and animo attestandiare the two basic features in the matter of civil courts exercise oftestamentary jurisdiction: Whereas onus probandi lies in everycase upon the party propounding a will - the expression animoattestandi means and implies animus to attest: to put it differentlyand in common parlance it means intent to attest. As regards thelatter maxim, the attesting witness must subscribe with the intentthat the subscription of the signature made stands by way of acomplete attestation of the will and the evidence is admissible toshow whether such was the intention or not (see in this contextTheobald on Wills 12th Ed. Page 129). This Court in the case ofGirja Datt v. Gangotri Datt (AIR 1955 SC 346) held that twopersons who had identified testator at the time of registration of thewill and had appended their signatures at the foot of theendorsement by the Sub-Registrar, were not attesting witnesses astheir signatures were not put animo attestandi. In an earlierdecision of the Calcutta High Court in Abinash ChandraBidvanidhi Bhattacharya v. Dasarath Malo : I.L.R 56 Cal.598, itwas held that a person who had put his name under the wordscribe was not an attesting witness as he had put his signatureonly for the purpose of authenticating that he was a scribe. Inthe similar vein, the Privy Council in Shiam Sunder Singh v.Jagannath Singh (54 M.L.J. 43) held that the legatees who had puttheir signatures on the will in token of their consent to its executionwere not attesting witnesses and were not disqualified from takingas legatees. In this context, reference may be made to the decisionof this Court in M.L. Abdul Jabhar Sahib v. H.V. Venkata Sastri &Sons & Ors. (1969 (3) SCR 513) wherein this Court uponreference to Section 3 of the Transfer of Property Act has thefollowing to state:It is to be noticed that the word attested, thething to be defined, occurs as part of the definitionitself. To attest is to bear witness to a fact.Briefly put, the essential conditions of a validattestation under s.3 are: (1) two or morewitnesses have seen the executant sign theinstrument or have received from him a personalacknowledgement of his signature; (2) with a
 
http://JUDIS.NIC.IN SUPREME COURT OF INDIAPage 2 of 18
view to attest or to bear witness to this fact eachof them has signed the instrument in the presenceof the executant. It is essential that the witnessshould have put his signature animo attestandi,that is, for the purpose of attesting that he has seenthe executant sign or has received from him apersonal acknowledgement of his signature. If aperson puts his signature on the document forsome other purpose, e.g., to certify that he is ascribe or an identifier or a registering officer, he isnot an attesting witness.For proper appreciation of the observations of this Court inVenkata Sastris case (supra), Section 3 of the Transfer of PropertyAct, in particular, the meaning attributed to the word attestedought to be noticed and the same reads as below:attested, in relation to an instrument, means andshall be deemed always to have meant attested bytwo or more witnesses each of whom has seen theexecutant sign or affix his mark to the instrument,or has seen some other person sign the instrumentin the presence and by the direction of theexecutant, or has received from the executant apersonal acknowledgment of his signature ormark, or of the signature of such other person, andeach of whom has signed the instrument in thepresence of the executant; but it shall not benecessary that more than one of such witnessesshall have been present at the same time, and noparticular form of attestation shall be necessary;Turning on to the former expression onus probandi, it isnow a fairly well-settled principle that the same lies in every caseupon the party propounding the will and may satisfy the courtsconscious that the instrument as propounded is the last will of afree and capable testator, meaning thereby obviously, that thetestator at the time when he subscribed his signature on to the willhad a sound and disposing state of mind and memory andordinarily, however, the onus is discharged as regards the dueexecution of the will if the propounder leads evidence to show thatthe will bears the signature and mark of the testator and that thewill is duly attested. This attestation however, shall have to be inaccordance with Section 68 of the Evidence Act which requiresthat if a document is required by law to be attested, it shall not beused as evidence until at least one attesting witness has been calledfor the purpose of proving its execution and the same is sohowever, in the event of there being an attesting witness alive andcapable of giving the evidence. The law is also equally well-settled that in the event of there being circumstances surroundingthe execution of the will, shrouded in suspicion, it is the dutyparamount on the part of the propounder to remove that suspicionby leading satisfactory evidence.In this context, reference may be made to a decision of thisCourt in Seth Beni Chand (since dead) by LRs v. Smt. KamlaKunwar and others (1976 (4) SCC 554).As regards the true legal position in the matter of proof ofwills, we rather feel it tempted to incorporate the succinctexpression of law, in extenso, even though rather longish in nature,by Gajendragadkar, J. in the case of H. Venkatachala Iyengar v.B.N. Thimmajamma & Others (1959 Supp. (1) SCR 426). Thelearned Judge had the following to state:
 
http://JUDIS.NIC.IN SUPREME COURT OF INDIAPage 3 of 18
It is well-known that the proof of wills presents arecurring topic for decision in courts and there area large number of judicial pronouncements on thesubject. The party propounding a will or other-wise making a claim under a will is no doubtseeking to prove a document and, in deciding howit is to be proved, we must inevitably refer to thestatutory provisions which govern the proof ofdocuments. Sections 67 and 68 of the EvidenceAct are relevant for this purpose. Under s. 67, if adocument is alleged to be signed by any person,the signature of the said person must be proved tobe in his handwriting, and for proving such ahandwriting under ss. 45 and 47 of the Act theopinions of experts and of persons acquaintedwith the handwriting of the person concerned aremade relevant. Section 68 deals with the proof ofthe execution of the document required by law tobe attested; and it provides that such a documentshall not be used as evidence until one attestingwitness at least has been called for the purpose ofproving its execution. These provisions prescribethe requirements and the nature of proof whichmust be satisfied by the party who relies on adocument in a court of law. Similarly, ss. 59 and63 of the Indian Succession Act are also relevant.section 59 provides that every person of soundmind, not being a minor, may dispose of hisproperty by will and the three illustrations to thissection indicate what is meant by the expressiona person of sound mind in the context. Section63 requires that the testator shall sign or affix hismark to the ill or it shall be signed by some otherperson in his presence and by his direction andthat the signature or mark shall be so made that itshall appear that it was intended thereby to giveeffect to the writing as a will. This section alsorequires that the will shall be attested by two ormore witnesses as prescribed. Thus the questionas to whether the will set up by the propounder isproved to be the last will of the testator has to bedecided in the light of these provisions. Has thetestator signed the will? Did he understand thenature and effect of the dispositions in the will?Did he put his signature to the will knowing whatit contained? Stated broadly it is the decision ofthese questions which determines the nature of thefinding on the question of the proof of wills. Itwould prima facie be true to say that the will hasto be proved like any other document except as tothe special requirements of attestation prescribedby s.63 of the Indian Succession Act. As in thecase of proof of other documents so in the case ofproof of wills it would be idle to expect proofwith mathematical certainty. The test to beapplied would be the usual test of the satisfactionof the prudent mind in such matters.Having discussed the basic law on the subject as above andbefore however adverting to the contextual facts we also deem it fitto record the statutory provision as engrafted in the IndianSuccession Act as regards the execution of the wills. Section 63 ofthe Act of 1925 has three several requirements as regards theexecution of will viz.

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