(Advocates, Property advocates in Bangalore, Property lawyers in Bangalore)
Execution of
a Will is required to be proved in terms of the provisions of Section 63(c) of
the Indian Succession Act and Section 68 of the Indian Evidence Act. In Janki
Narayan Bhoir v. Narayan Namdeo Kadam, [(2003) 2 SCC 91], while dealing with
the question elaborately, the Hon'ble Supreme Court has held as under:
“To say Will has been duly executed, the requirement
mentioned in Clauses (a), (b) and (c) of Section 63 of the Succession Act are to be complied with i.e.,
a)The testator has to sign or affix his mark to the will,
or it has got to be signed by some other person in his presence and by his
direction;
b)The signature or mark of the testator, or the signature
of the person signing at his direction, has to appear at a place form which it
could appear that by that mark or signature the document is intended to have effect as a will;
c)The most important point with which we are presently
concerned in this appeal, is that the will has to be attested by two or more
witnesses and each of these witnesses must have seen the testator sign or affix
his mark to the Will, or must have seen some other person sign the Will in the
presence and by the direction of the testator, or must have received from the
testator a personal acknowledgement of signature or mark, or of the signature
of such other person, and each of the 11 witnesses has to sign the Will in the
presence of the testator."
As regards compliance of the provision of Section 68 of the Evidence Act, it was opined :
"In a way, Section 68 gives a concession to those
who want to prove and establish a will in a Court of law by examining at least
one attesting witness even though will has to be attested at least by two
witnesses mandatorily under Section 63 of the Succession Act. But what is
significant and to be noted is that one attesting witness examined should be in
a position to prove the execution of a will. To put in other words, if one
attesting witness can prove execution of the will in terms of Clause (c) of
Section 63, viz., attestation by two attesting witnesses in the manner
contemplated therein, the examination of other attesting witness can be
dispensed with.The one attesting witness examined, in his evidence has to
satisfy the attestation of a will by him and the other attesting witness in
order to prove there was due execution of the will.If the attesting witness
examined besides his attestation does not, in his evidence, satisfy the requirements of attention of the will by other witness also it falls short of
attestation of will at least by two witnesses for the simple reason that the
execution of the will does not merely mean the signing of it by the testator
but it means fulfilling and proof of all the formalities required under Section
63 of the Succession Act. Where one attesting witness examined to prove the
will under Section 68 of the Evidence Act fails to prove the due execution of
the will then the other available attesting witness has to be called to
supplement his evidence to make it complete in all respects. Where one
attesting witness is examined and he fails to prove the attestation of the will
by the other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act."
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