case law digest on will and probate

8/12/2019 Case Law Digest on Will and Probate

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CASE LAW DIGEST ON WILL AND PROBATE

COLLECTED FROM

DEDICATED TO


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INTRODUCTION

What Is a Will?

A document in which a person specifies the method to be applied in the

management and distribution of his estate after his death.

Definition of Will & Other Related Terms

Will: A Will is a solemn document by which a dead man entrusts to the living

to the carrying out of his wishes. S. S.2 (h) of India Succession Act, 1925[1]


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provides that Will means the legal declaration of the intention of a person with

respect to his property, which he desires to take effect after his death.

Codicil is an instrument made in relation to a Will, explaining, altering or

adding to its dispositions and is deemed to be a part of the Will. The purpose of

codicil is to make some small changes in the Will, which has already been

executed.

An executor is appointed by the testator, as distinguished from an

administrator who is appointed by the court. Where the Will confers the powers

to collect the outstanding, pay debts and manage the properties, the person

can be said to be appointed as an executor by implication.

Probate is an evidence of the appointment of the executor and unless revoked,

is conclusive as to the power of the executor. The grant of probate to the

executor however does not confer upon him any title to the property.

Letter of Administrationis a certificate granted by the competent court to an

administrator where there exists a Will authorizing him to administer the

estate of the deceased in accordance with the Will. If the Will does not nameany executor, an application can be filed in the court for grant of Letter of

Administration for the property.

Attestingmeans signing a document for the purpose of testifying the signature

of the executants.

Essential Features of a Will

The essential features are-

The documents purporting to be a Will or a testament must be legal, i.e. in

conformity with the law and must be executed by a person legally competent to

make it. Further the declaration of intention must be with respect to the

testators property It is a legal document, which has a binding force upon the

family.

In a Will, the testator bequeaths or leaves his property to the person or people

he chooses to leave his assets/belongings. A Hindu person by way of his Will

can bequeath all his property. However, a member of an undivided family

cannot bequeath his coparcenery interest in the family property.

The Will is enforceable only after the death of the testator-


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Under section 18 of the Registration Act the registration of a Will is not

compulsory. Also, the SC in Narain Singh v. Kamla Devi [AIR 1954 SC 280]

has held that mere non-registration of the Will an inference cannot be drawn

against the genuines of the Will. However it is advisable to register it as it

provides strong legal evidence about the validity of the Will. It is to be released

only to the testator himself or, after his death, to an authorized person who

produces the Death Certificate .Since a testamentary disposition always speaks

from the grave of the testator, the required standard of proof is very high. The

initial burden of proof is always on the person who propounds the Will.

Hindu Law of Wills- an overview

Who Can Make A Will?

S.59 of ISA provides that every person who is of sound mind and is not a minor

can make a Will.

For Person of unsound mind

U/s. 59 of ISA the existence of a sound mind is a sine quo non for the validity

of the Will. Most of the Wills are not made by young persons who are fully fit

but are made by persons who are aged and bed ridden Hence, law does not

expect that the testator should be in a perfect state of health, or that he should

be able to give complicated instructions as to how his property was to be

distributed. A sound disposing mind implies sufficient capacity to deal with

and understand the disposition of property in his Will -

1) the testator must understand that he is giving away his property to one or

more objects

2) he must understand and recollect the extent of his property

3) he must also understand the persons and the extent of claims included as

well as those who are excluded from the Will.

Minors: A minor who has not completed the age of 18 years is not capable of

making Wills. The onus of proof on determining whether the person was a

minor at the time of making a Will is on the person who has relied upon the

Will. S.12 of the Indian Contract Act also provides that a minor is incompetent

to contract.


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Restrictions on a Will

1. Transfer to unborn persons is invalid

Where a bequest is made to a person by a particular description, and there isno person in existence at the testators death who answers that description, the

bequest is void. S.113 of ISA provides that for a transfer to an unborn person,

a prior interest for life has to be created in another person and the bequest

must comprise of whole of the remaining interest of the testator. In Sopher v.

Administrator-General of Bengal [AIR 1944 PC 67] a grandfather made the

bequest to his grandson who was yet to be born, by creating a prior interest in

his son and daughter in law. The Court upheld the transfer to an unborn

person and the Court held that since the vested interest was transferred when

the grandsons were born and only the enjoyment of possession was postponed

till they achieved the age of twenty one the transfer was held to be valid.

In Girish Dutt v. Datadin [AIR 1934 Oudh 35], the Will stated that the

property was to be transferred to a female descendant (who was unborn) only if

the person did not have any male descendant. The Court held that since the

transfer of property was dependent on the condition that there has to be no

male descendant, the transfer of interest was limited and not absolute and

thereby the transfer was void. For a transfer to an unborn person to be held

valid, absolute interest needs to be transferred and it cannot be a limited

interest.

2. Transfer made for perpetuity

S.114 of the ISA, 1925 provides that no bequest is valid whereby the vesting of

the thing bequeathed may be delayed beyond the lifetime of one or more

persons living at the testators death and the minority of some person who

shall be in existence at the expiration of that period, and to whom, if he attains

full age, the thing bequeathed is to belong.

The rule against perpetuity provides that the property cannot be tied for an

indefinite period. The property cannot be transferred in an unending way. The

rule is based on the considerations of public policy since property cannot be

made inalienable unless it is in the interest of the community. The rule against

perpetuity invalidates any bequest which delays vesting beyond the life or lives-

in-being and the minority of the donee who must be living at the close of the

last life. Hence property can be transferred to an unborn person who has to be

born at the expiration of the interest created and the maximum permissible

remoteness is of 18 years i.e the age of minority in India.


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In Stanely v. Leigh [1732 -2 PWMS 686]it was laid down that for the rule of

perpetuity to be not applicable there has to be 1) a transfer 2) an interest in an

unborn person must be created 3) takes effect after the life time of one or more

persons and during his minority 4) unborn person should be in existence at

the expiration of the interest.

3. Transfer to a class some of whom may come under above rules

S.115 of ISA provides that if a bequest is made to a class of persons with

regard to some of whom it is inoperative by reasons of the fact that the person

is not in existence at the testators death or to create perpetuity, such bequest

shall be void in regard to those persons only and not in regard to the whole

class.

A number of persons are said to be a class when they can be designated by

some general name as grandchildren, children and nephews. In Pearks v.

Mosesley[(1880) 5 App Cas 714] defined gift to a class as a gift to all those who

shall come within a certain category or description defined by a general or

collective formula and who if they take at all are to take one divisible subject in

certain proportionate shares.

4. Transfer to take effect on failure of prior Transfer

S.116 of ISA provides that where by reason of any of the rules contained in

sections 113 and 114 and bequest in favour of a person of a class of persons is

void in regard to such person or the whole of such class, any bequest

contained in the same Will and intended to take effect after or upon failure of

such prior bequest is also void.

Muslim Law of Wills an Overview

Wills or Wasiyat

Wills or bequest[s] or Wasiyat derive their authority and sanctity from the

sacred texts of the Quran.

It is prescribed to you when death approaches any one of you and that he is to

leave any wealth behind, he should bequeath equitably to his parents and

kindred.

And such of you as feel the approach of death and are to die and leave wives

behind shall bequeath for their wives a years maintenance without requiring

them to quit their homes.


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There are a number of precepts of the Prophet on this subject. The arguments

advanced by the learned doctors in support of this bequest are that there is an

indispensable necessity that man should have the power of making bequests

for, man from the delusion of his hopes, is improvident and deficient in

practice, but when mortal sickness invades him, he gets alarmed at that time;

therefore, he stands in need of compensateion for his deficiencies by means of

his propertyand this in such manner that if he should die of the illness, his

object, namely, compensation for his deficiencies and merit in a future state,

may be obtained, but if he were to recover, the property will still be his.

Capacity to make a Will

The testator must be:

(i) In the full possession of his senses at the time. A will made by an insane

person is not valid. If he makes it at a time when he was in full senses but

again relapses to insanity and that condition lasts for at least six months, the

bequest will become invalid, otherwise not.

(ii) He must be of the age of majority.

(iii) He must not be indebted to an extent that his debt is equivalent in value to

his whole property.

(iv) He must not be acting under compulsion or under influence or in jest.

(v) He must be a free person.

Objects in whose favour a Will can be made

A bequest can be only to the extent of a third or 1/3rd of the testators property

but not to any further extent.

A bequest to any amount exceeding 1/3rd of the testators property is not valid.

In proof of this is the Hadith as reported by Abu Wakas: In the year of the

Conquest of Mecca, being taken so seriously ill that my life was despaired of,

the Prophet of God came to pay me a visit of consolation. I told him that by the

blessing of God [I had] a great estate but no heir except a daughter, I wish[ed]

to know if I might dispose of it all by will. He replied, No and when I went on

asking if I might bequest two-thirds or one-half he replied again in the

negative, but when I asked,If I do so to the extent of one-third, he answered,

Yes, you can bequeath one-third of your property by will, and a third part to be

disposed of by will is a great portion; and it is better that you should leave your

heirs affluent than in a state of poverty which might oblige them to beg of


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others.In the case of heirs consenting to it, a bequest of more than one-third of

the property which by itself is not valid becomes valid. Whether the person in

whose favour the Will is made is an heir or not, must be determined not at the

time of the Will but after the testators death.

Where the Will is in favour of non-heirs or for a pious or charitable purpose, it

is valid and operative only in respect of one-third of the testators estate

without the assent of the heirs and in respect of more then one-third with their

consent.

Executor

The testator may appoint any person to carry out the directions of the testator.

He is called the executor. He may be a man or woman, a stranger, or a relative.

The appointment may be for a specific purpose or may be general. If a

testamentary disposition is invalid, the appointment of the executor would

remain valid so far as the guardianship of minor children and their education

are concerned. It is the duty of the executor to pay the funeral expenses, the

debts and the legacies, and to administer the estate generally.

Critical analysis of the difference between wills Hindu law and Muslim

law-

1. Governing law-

Hindu law of wills is governed by ISA 1925. Which includes the form of wills,

formalities, capacity, subject matter of wills, and revocation to every other

related matter of wills in a codified manner. Whereas in Muslim law it isgoverned by their personal law.

2. perpetuity

A Hindu will cannot be made for a indefinite period or for time immemorial,

every Hindu will made under due process of law has to be of a definite period of

time. Whereas a Muslim can make a will for an indefinite period in the form of

wakfs or in the name of charity, using the usufructs for the benefit of his ownfamily.

3. Restriction on devolution of property

Hindu law A Hindu testator or specifically a coparcener has full rights of

giving out his entire property in the form of wills to any one of the legal heirs as

well as to any stranger.


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Muslim law- Can only give out one third of his property to a stranger and rest

has to given to the family. No one can give out more than one third of his

property without the consent of his legal heirs.

4. Quantum of share

In Hindu law wife and mother gets an equal share. In Muslim law its done

according to the quantum of interest in the testamentary property provided in

Quran. It even includes property given to more than one wife.

Hindu law- Male heirs get an equal share as compared to females in a Hindu

joint family property. More precisely after 2005 amendment in the Hindu

succession act 1956 where daughters get an equal share as that of a son and

thus share equal rights and liabilities in a coparcenory system of Hindu joint

family.

Muslim law- Male heirs gets double the share as compared to the female heirs,

according to the amount provided for devolution of interest in the property.

5. Death Bed Gift -

In Hindu law the concept of Marz Ul Maut does not exist in hindu law.

Though a similar concept of death bed gifts happens to be in existence know as

Donation Mortis Causa.

Muslim law-The concept of Marz Ul Maut exists; it is form of death bed gift.

When person has real apprehension of death due to a particular illness he can

gift out 1/3rd property to any one of the family members or even a stranger.

Also know as gift of amphibious nature. Re beaumont [1902]

6. Formalities-

In Hindu law Sec-63 of the ISA 1925 provides for proper formalities to be

performed for formation of a valid will.

Muslim law- As for official formation of will there is no need of any particular

formalities but mere bonafide intention to make a will would suffice. Even

absence of signature of the testator would not affect the validity of the will.

Hindu law- Sec- 62 of the ISA 1925 deals with will which are revocable and

sec- 70 of the ISA 1925 deals with the method or the manner in which the will

has to be revoked.

Muslim law- There is no prescribed method of revocation of a will (during

lifetime) it can done by merely portraying the intention to revoke it.


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7. Probate -

In a Hindu will the executor is bound to take out the probate to show his

authority to execute the will.

Muslim law- In a wassiyat the executor is not bound to show the probate for

executing a will.

8. History of law-

The concept of making a will or wassiyat was unknown to the original Hindu

law or the personal law of Hindus.

Muslim law- Making of a wassiyat is an age old process in Muslim law as it has

been described in Quran; moreover Hedaya contains a detailed description of

Muslim wills or wassiyat.

CASE LAWS

EXECUTION OF A WILL IS REQUIRED TO BE PROVED IN TERMS OF THEPROVISIONS OF S. 63(C) OF THE SUCCESSION ACT, 1925

The Honble Supreme court of India in Rur Singh (D) Th. LRS. & Ors. Vs

Bachan Kaur JUSTICE S.B. Sinha JUSTICE Dr. Mukundakam Sharma

New Delhi February 12, 2009, Succession Act, 1925 : S. 63(c) -

Execution of a Will is required to be proved in terms of the provisions of s. 63(c)

of the Succession Act, 1925 and s. 68 of the Evidence Act, 1872. The Will was

attested by nine independent persons. Three of them in fact had been

examined. The High Court while holding that a doubt is cast on its validity by

reason of active participation of one of the sons, failed to notice that nine other

independent witnesses attested the Will. Importance cannot be attached to the

fact that although the Sarpanch scribed the Will in Urdu, he at more than one

place signed in English. In a village, a person may be more proficient in the

vernacular language than English although he may be able to sign his name in

English. If the Will was otherwise proved to be genuine and the statutory


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requirements therefor were satisfied, only because the panchayat register was

not produced, the same by itself would not lead to the conclusion that the Will

would be held to have not been executed, particularly when two courts

competent to arrive at findings of fact held it otherwise.

WHEN ORIGINAL WILL WAS LOST WHETHER PRESUMPTION OF

REVOCATION OF WILL BE DRAWN

BENCH OF SUPREME COURT CONSISTING OF JUSTICE FAZAL ALI, SYED

MURTAZA SHINGAL, P.N. IN A CASE OF DURGA PRASAD VS DEVI CHARAN

REPORTED IN AIR 1979 SC 145, The correct legal position may be stated thus:

(i) Where a will has been properly executed and registered by the testator but

not found at the time of death the question whether the presumption that the

testator had revoked the will can be drawn or not will depend on the facts and

circumstances of each case. Even if such a presumption is drawn it is rather a

weak one in view of the habits and conditions of our people.

(ii) Such a presumption is a rebuttable one and can be rebutted by the slightest

possible evidence, direct or circumstantial. For instance, where it is proved that

a will was a strong and clear disposition evincing the categorical intention of

the testator and there was nothing to indicate the presence of any

circumstance which is likely to bring about a change in the intention of the

testator so as to revoke the will suddenly, the presumption is rebutted.

(iii) In view of the fact that in our country most of the people are not highlyeducated and do not in every case take the care of depositing the will in the

bank or with the Solicitors or otherwise take very great care of the will as a

result of which the possibility of the will being stolen, lost or surreptitiously

removed by interested persons cannot be excluded, the presumption should be

applied carefully.

(iv) Where the legatee is able to prove the circumstances from which it can be

inferred that there could be absolutely no reason whatsoever for revoking the

will or that the Act of revoking the will was against the temperament and

inclination of the testator, no presumption of revocation of the will can be

drawn.

(v) In view of the express provision of section 70 of the Indian Succession Act

the onus lies on the objector to prove the various circumstances, viz., marriage,

burning, tearing or destruction of the will.


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(vi) When there is no obvious reason or clear motive for the testator to revoke

the will and yet the will is not found on the death of the testator it may well be

that the will was misplaced or lost or was stolen by the interested persons.

DOUBTFULL CIRCUMSTANCES OF WILL

Adivekka & Ors. VS Hanamavva Kom Venkatesh 'D' By LRs. & Anr

BENCH: S.B. Sinha & Markandey Katju AIR 2007 SC 2025,

Will-Execution of-Testator executing Will in favour of his niece-Allegation of

suspicious circumstances-Sustainability of Will-Held: Testator's wife and

children unaware of the execution of the Will-Beneficiary too unaware and did

not know from where and how she obtained possession of the Will-Beneficiary

not examining herself which leads to drawal of adverse inference against her-

Also registration of Will before Sub-Registrar doubtful-Disposition made in Will

unfair, unnatural and improbable as no sane person for very cogent reasons

would disinherit his children-Thus, Will not genuine.

Allowing the appeals, the Court HELD:

The High Court was not correct in setting aside the judgment of the Trial Judge

that execution of Will has not been proved.

The subject matter of the Will was a piece of agricultural land. That was the

only agricultural land in possession of the testator. He was although owner of

four houses, according to the appellants, the same had not been generating

any income. Admittedly, the appellants, other than son of H were residing with

him. Therefore, it is difficult to believe that respondent no. 1 had been looking

after him or despite her marriage with respondent no. 2, she had been residing

in his house.

It may or may not be true that testator's son B had been residing separately,

but evidently he had been able to perform the marriage of only one of his

daughters and, thus, six other daughters were yet to be married. Assuming

that respondent No. 1 was brought up by him, she was married. Her husband

was affluent. He could afford to purchase the property in question. Thus, there

was apparent reason to execute a Will in her favour depriving his wife and

children.


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There is no explanation as to why a Will had to be executed and registered

without the knowledge of his wife by H. There is nothing on record to show that

the testator had any special love or affection for respondent no. 1. Respondent

No. 1 did not examine herself. According to her, she was not even aware of the

execution of the Will. She came to know the same at a much later stage, i.e.,

after lapse of 10-12 months. How and on what basis she obtained the

possession of the original Will is not known. On what basis the Sub-Registrar

handed over possession of the Will to husband of Respondent No. 1 has not

been disclosed. Had she examined herself, she could have been accosted with

the said question. It could have been shown that H did not have any love and

affection for her. Non-examination of the party to the lis would lead to drawal of

an adverse inference against her.

Grave suspicion in regard to the execution of the Will arises as husband of

respondent No. 1 being her power of attorney holder spoke of an agreement for

sale. According to him, out of a total consideration of Rs. 58,000/- or Rs.

50,000/- as the case may be, a sum of Rs. 49,000 had already been paid. If

that be so, in ordinary course, he would have tendered the balance amount. He

could have filed a suit for specific performance. At least a notice in that behalfcould have been served. Therefore, husband of respondent No. 1, admittedly

had an eye over the property. Why only the agricultural land possessed by H

would be the subject matter of the Will, thus, has not been proved. Admittedly

he had been suffering from cancer. He died only two weeks after the execution

of the Will.

Submission of respondent no, 1 that they were in possession of the land in

question, cultivated the same for one year and thereafter sold the same, ex-

facie does not appear to be correct as the lands had been sold by her on

16.3.1989 whereas the testator died on 11.9.1988, i.e., within a period of six

months from the date of execution of the Will.

The disposition made in the Will is unfair, unnatural and improbable as no

sane person, save and except for very cogent reasons, would disinherit his

minor children. According to attesting witness he went with the testator at

about 4.30 p.m. on 25.8.1998 to Taluk Office. The Will is said to have been

first scribed by bond writer. The same thereafter was typed out by another

typist. It was brought back to the same bond writer. He had allegedly read over

the contents of the Will whereafter only H signed and thereafter the witnesses

put their signatures. The entire process must have taken about two hours.

How the Will could be registered on the same day, i.e., beyond the office hours

is again a matter which is beyond anybody's comprehension. Sub-Registrar did

not say that the Will was executed and registered before him.


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WILL LIKE ANY OTHER DOCUMENT IS TO BE PROVED IN TERMS OF THE

PROVISIONS OF THE ACT

Savithri & Ors VS Karthyayani Amma & Ors BENCH: S.B. Sinha & Harjit

Singh Bedi J AIR 2008 SC 300

Dismissing the appeal, the Court HELD:

The legal requirement in terms of section 63 of the Indian Succession Act, 1925

and section 68 of the Evidence Act, 1872 is that a Will like any other document

is to be proved in terms of the provisions of the Act. The onus of proving the

Will is on the propounder. The testamentary capacity of the testator must also

be established. Execution of the Will by the testator has to be proved. At least

one attesting witness is required to be examined for the purpose of proving the

execution of the Will. It is required to be shown that the Will has been signed

by the testator with his free will and that at the relevant time he was in sound

disposing state of mind and understood the nature and effect of the

disposition. It is also required to be established that he has signed the Will in

the presence of two witnesses who attested his signature in his presence or in

the presence of each other. Only when there exist suspicious circumstances,

the onus would be on the applicant to explain them to the satisfaction of the

court before it can be accepted as genuine.

The submission that if both KN and SN were to bequeath their entire right, title

and interest in the properties in favour of the respondents by way of family

arrangement or otherwise, no deed of partition was required to be executed,

cannot be accepted as thereby they would have lost their interest in the

property during their life time. They evidently intended to have life interest in

the property, bequeathing the same in favour of the respondents. The parties

are governed by Marumakkattayam School of Hindu Law. The sisters in the

family have a role to play. The fact that the testator was totally dependent on

his nephew and nieces is beyond any dispute. He lost his employment in the

year 1959. Apart from the properties which were subject-matter of the Will, he

had no other independent source of income. Being totally dependent on the

respondents and having been suffering from cancer, he was bound to place

implicit faith and confidence only upon those who had been looking after him.

The Will was admittedly registered. The testator lived for seven years after

execution of the Will. He could change his mind; he did not. The very fact that

he did not take any step for cancellation of the Will is itself a factor which the

Court may take into consideration for the purpose of upholding the same. The

question as to whether the Registrar was brought to the house of the

propounder or he had gone to the Registrar's office is not a matter which


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requires serious consideration. But it may be noticed that the witness

examined on behalf of the respondents, DW-2, categorically stated that he had

gone to the Registrar's office to get the same registered. Execution of the will

might have taken place at the house of SN, but according to DW-2 he came to

his office even after registration. Even the other Will was also scribed by him

and he was an attesting witness therein also.

It is not correct to contend that DW-2 could not have been the attesting

witness. He in his deposition categorically stated that he had seen the Will

being read over to the propounder. The witnesses and he had seen SN putting

his signature on the Will. SN had also seen the witnesses putting their

signatures. This satisfies the requirements of the provisions of section 63 of the

Indian Succession Act, 1925 and section 68 of the Evidence Act, 1872.

It was appellant's case that the signature of the testator on the Will was

obtained under undue influence or coercion. The onus to prove the same was

on them. They have failed to do so. If the propounder proves that the Will was

signed by the testator and he at the relevant time was in sound disposing state

of mind and understood the nature and effect of disposition, the onus stands

discharged. For this purpose the background fact of the attending

circumstances may also be taken into consideration.

The circumstances relevant for determining the existence of the suspicious

circumstances are (i) when a doubt is created in regard to the condition of

mind of the testator despite his signature on the Will; (ii) when the disposition

appears to be unnatural or wholly unfair in the light of the relevant

circumstances; (iii) where propounder himself takes prominent part in theexecution of Will which confers on him substantial benefit. In the fact situation

obtaining herein no such suspicious circumstance was existing. The court

must satisfy its conscience before its genuineness is accepted. Therefore, a

rational approach is necessary.

Deprivation of a due share by the natural heirs itself is not a factor which

would lead to the conclusion that there exist suspicious circumstances. The

son was not meeting his father. He had not been attending to him. He was not

even meeting the expenses for his treatment from 1959, when he lost his job

till his death in 1978. The testator was living with his sister and her children. If

in that situation, if he executed a Will in their favour, no exception thereto can

be taken. Even then, something was left for the appellant.

The conscience of the court must be satisfied. In the instant case, the High

Court has considered the relevant factors. It has been found that the Will was


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the product of the free will. He had executed the Will after knowing and

understanding the contents thereof.

HINDU RIGHT TO MAKE WILL OF UNDIVIDED CO-PARCENARY PROPERTY

THE HONBLE JUSTICE S. NAYAK AND THE HONBLE JUSTICE MANJULA

CHELLUR of Karnataka High Court in the case of Smt. Radhamma And

Ors. vs H.N. Muddukrishna And Ors. Reported in AIR 2006 Kant 68, 2006

(1) KarLJ 176. Prior to coming into force of the Hindu Succession Act, no

coparcener could dispose of whole or any portion of his undivided coparcenary

interest by Will. Now, by virtue of Section 30 of the Act, read with Explanation,

a coparcener derives a right to dispose of his undivided share in Mitakshara

joint family property by "Will" or any testamentary disposition, i.e., by virtue of

law. Again, the Court has to see whether a coparcener was divided from the

joint family prior to the execution of the Will and other circumstances. In other

words, the facts and circumstances of each case would also have bearing on

this aspect. .. Prior to Hindu Succession Act coming into force, a

coparcener was not entitled to either gift or Will his interest in the coparcenary

property. That ban or embargo is removed so far as Will is concerned. His

disability to gift away his undivided interest in the coparcenary property

continues to remain the same even after the codification of Hindu Law, Only a

small portion of the joint family property can be gifted off by manager of the

family for "pios purpose". . Section 30 makes it clear that a Hindu

testator may dispose of any property which is capable of being disposed of by

him by Will or other testamentary disposition in accordance with Indian

Succession Act of 1925. The Explanation again clarifies that it is only in

respect of interest of a male Hindu in Mitakshara joint family property.

The disability prevailed till coming into force of Section 30 of the Act is removed

so far as Will is concerned. Having regard to the fact that one of the

cardinal principles of construction of Will is to the extent that it is legally

possible, effect should be given to every disposition contained in the Will unless

the law prevents effect being given to it, ..

The law relating to the capacity or the right of a Hindu to execute a Will his

share of property in the coparcenary property has seen a sea change

subsequent to coming into force of Hindu Succession Act of 1956. Section

4(1)(a) and (b) of the Act is of relevance, which reads as under:

4. (1) Save as otherwise expressly provided in this Act.--

(a) any text, rule or interpretation of Hindu Law or any custom or usage as part

of that law in force immediately before the commencement of this Act shall


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cease to have effect with respect to any matter for which provision is made in

this Act;

(b) any other law in force immediately before the commencement of this Act

shall cease to apply to Hindus insofar as it is inconsistent with any of the

provisions contained in this Act.

46. By reading Section 4(1)(a) and (b), it is very clear if there is any express

provision in the codified law, it is the duty of the Court to look into the said

provision. In other words, it alone shall govern the rights of the parties though

there is radical alteration or modification from the previous law. If no provision

is made in the 'Act', the old law shall be applicable. Therefore, one has to

necessarily look into whether any provision in the Act, either specifically or by

necessary implication empowers or enables a Hindu to Will away his share in

the coparcenary property.

47. After coming into effect of Hindu Succession Act of 1956, it is the duty of

the Court to see the circumstances and the law prevailing on the date of the

death of the testator in order to put a seal of validity and genuineness to the

disputed Will. Section 30 of the Hindu Succession Act, 1956 reads as under:

Section 30. Testamentary succession.-Any Hindu may dispose of by Will or

other testamentary disposition any property, which is capable of being so

disposed of by him, in accordance with the provisions of the Indian Succession

Act, 1925 (39 of 1925) or any other law for the time being in force and

applicable to Hindus.

Explanation.--The interest of a male Hindu in Mitakshara coparcenary property

or the interest of a member of a tarwad, tavazhi, illom, kutumba or kavaru in

the property of the tarwad, tavazhi, illom, kutumba or kavani shall,

notwithstanding anything contained in this Act or in any other law for the time

being in force, be deemed to be property capable of being disposed of by him or

by her within the meaning of this Sub-sections.

Valliammai Achi vs Nagappa Chettiar & Ors 1967 AIR 1153, 1967 SCR (2)

448A father in a Mitakshara family has a very limited right to make a will and

Pallaniappa's father could not make the will disposing of the entire joint family

property, though he gave the residue to his son. We are therefore of

opinion,that merely because Pallanappa's father made the will and Pallaniappa

probably as a dutiful son took out probate and carried out the wishes of his

father, the nature of the property could not change and it will be joint family


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property in the hands of Pallaniappa so far as his male issues are concerned.

Further it is equally well settled that under the Mitakshara law each son upon

his birth takes an interest equal to that of his father in ancestral property,

whether it be movable or immovable. It is very important to note that the right

which the son takes at his birth in the ancestral property is wholly

independent of his father. He does not claim through the father...." (see Mulla's

Hindu Law, Thirteenth Edition, p. 251, para 224). It follows therefore that the

character of the property did not change in this case because of the will of

Pallaniappa's father and it would still be joint family property in the hands of

Pallaniappa so far as his male issue was concerned. Further as soon as the

respondent was adopted he acquired interest in the joint family property in the

hands of Pallaniappa and this interest of his was independent of his father

Pallaniappa. In such circumstances even if Pallaniappa could be said to have

made an election there can be no question of the respondent being bound by

that election, for he is not claiming through his father.

THE TECHNICALITY OF LAW CANNOT BE OVERLOOKED IN CASE OF WILL

ATTESTATION AND ITS PROOF. 2001 SC

N. KAMALAM (DEAD) AND ANOTHER vs AYYASAMY AND ANOTHER, AIR

2001 SC 2802.The relevant paragraphs-28 and 32 read as under: "Para 28 : It

is on this count that the learned Advocate in support of the appeal very

strongly contended that there is existing a responsibility on to the law Courts

to deal with the matter having due regard to the concept of justice.

Technicalities. It has been contended there may be many - but would that sub-

serve the ends of justice; one needs to ponder over the same. Justice oriented

approach cannot be decried in the present day society as opposed to strict

rigours of law; Law Courts existence is dependant upon the present day social

approach and thus cannot and ought not to be administered on sheer

technicalities. The discussion of the law as above, definitely make us ponder

over the legal aspects once more since the tenor of the observations contained

therein obviously looked into being in favour of the technicality rather a justice

oriented approach and in that perspective let us now have review of the whole

situation on the factual context. Masaney Gowder executed a Will said to have

been written by one Arunachalam and attested by Subbaiah and Govindaraju.

The two attesting witnesses were not called to give evidence against them - why

it has not been done? The explanation has been that both the attesting

witnesses were inimical towards appellants and as such there was a refusal on


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their part to come to Court and prove the document - how far however the

same is an acceptable evidence; We Will have to examine; but before so doing

the factum of non-availability of the attesting witnesses cannot be discarded

and if so, what would be its consequences. The application for additional

evidence as dealt with herein before, was made after a lapse of about 10 years

after the appeal was filed and the learned judges though it fit to reject such a

prayer and we also do lend out concurrence thereof without taking any

exception - but then what is the effect? we have thus existing on record a

document said to be a Will of one Masaney gowder whose signatures stand

accepted and two attesting witnesses though named in the body of the

document were not made available but the writer of the will or the scribe came

forward and deposed as to the state of affairs on the date of signing of the will,

it would be convenient thus to note the evidence of the scribe and see for

ourselves as to whether even a justice oriented approach would be able to save

the will in the absence of the attesting witnesses. Arunachalam stated in his

examination in Chief as below: "I have written Ex.A.1 `THE WILL', I have

written the WILL EX. A1 for the Sake of Masane Gowder. The said Masane

Gowder has been introduced to me by the Advocate G.M. Nathan who was

formerly have. During the execution of the WILL, Advocate G.M. Nathan was

residing at Thomas Street.At that time Masane Gowder was residing at the

same place after one house of Advocate's home. Before the preparation of the

`WILL' I had been to his house and discussed with him about the details and

he has stated the details. At that time Masane Gowder Mental and Physical

status were found good. After writing the Ex.A.1 the Will, I have read out the

same to him, and he had stated that all were correct. Then in my presence

Masane Gowder had affixed his thumb impression in each page. The affixing ofthumb impression by Masane Gowder in Ex.A1 WILL had been witnessed by

attestor Subbaiah,Govindaraju and myself.The signing of signature for witness

by us, was eye witnessed by Masane Gowder. After the Ex.A1 Will had been

prepared and signed I handed over the `WILL' to Masane Gowder". Para - 32 :

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


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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."

RAJAMMAL vs CHINNATHAL, AIR 1976 MADRAS, AIR 1976 MADRAS 4.In

this case it was held that once the execution of the Will is denied by the alleged

executant the document cannot be admitted in evidence, unless one attesting

witness atleast has been called for proving the execution of the document, if

alive, and subject to the process of the Court. In that case there was no

evidence to show that the attesting witnesses were not alive and none of them

were examined. Therefore, the requirement of Section 68 of the Indian Evidence

Act has not been complied with and as such the Will could not be used in

evidence.

CHINNA NARASIMHALU vs KURUBARA BASAPPA AND ANOTHER, 1983(1)

KAR.L.J. 183. In this case it is held as under: "A witness to be an attesting

witness need not be labelled as an attesting witness. The place at which the

signature or thumb impression of a witness is subscribed to the document is

not a determining factor for holding that a witness is or is not an attesting

witness. What is required to be seen is as to whether the evidence of the

witness reveals that he has signed the document in the presence of the

executant after seeing execution of the document or that he has signed the

document after receiving the person acknowledgement from the executant as

regards the execution of the document." In the case of documents which are

not compulsorily registerable, the Sub-Registrar or other identifying witnesses

can be regarded as attesting witnesses, if their evidence is in Conformity with

the law relating to attestation. Where the lower Court held that the will was

not valid on the ground that the witness had not signed at the place intended

to be signed by attesting witnesses and therefore he cannot be considered to be

an attesting witness, without considering the evidence of the witnesses, and

therefore the legatee could not be brought on record as L.R. of the deceased

party, the Judgment suffers from a serious infirmity and the order of the Court

under Order 22 Rule 4 and 5 of CPC is revisable."

WILL IS INTERFERENCE OF NORMAL SUCCESSION NATURAL HEIRS

ARE DEPRIVED IN CASE OF WILL IS USUAL 1995 SC

RABINDRA NATH MUKHERJEE AND ANOTHER vs PANCHANAN BANERJEE

(DEAD) BY LRS. AND OTHERS,. AIR 1995 SC 1684, 1995 SCC (4) 459 In

this case their Lordships have held as under: "The circumstances of


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deprivation of natural heirs should not raise any suspicion because the whole

idea behind execution of will is to interefere with the normal line of succession.

So natural heirs would be debarred in every case of will. Of course, it may be

that in some cases they are fully debarred and in others only partially. As in

the present case, the two executors are sons of a half-blood brother of the

testatrix whereas the objectors descendants of a full blood sister, the

disinheritance of the latter could not have been taken as a suspicious

circumstance, when some of her descendants are even beneficiaries under the

Will. The identification by the lawyer could have been regarded as a suspicious

circumstances if a wrong person would have been identified as the testatrix.

That, however, is not the case of the objectors. So, there is no bane in this

circumstance. The third circumstance can not also be said to be suspicious.

Witnesses in such documents verify whether the same had been executed

voluntarily by the person concerned knowing its contents. In case where a will

is registered and the Sub-Registrar certifies that the same had been read over

to the executor who, on doing so, admitted the contents, the fact that the

witnesses to the document are interested loses significance. The documents at

hand were registered and it is on record that the Sub-Registrar had explained

the contents to the old lady. Objection as regards `ubiquitous', cannot be there

if there be other circumstances on record to show the voluntary character of

the document. Such circumstances were present in this case. Taking total view

of the circumstances, which has to be the approach, it must be held that the

Courts below overplayed some circumstances which they regarded as

suspicious and somehow missed some circumstances which bolstered the case

of the propounders."

1980 (1) Kar. L.J. 89 (GANAPATSA GOVINDASA AND OTHERS vs

NINGAPPA RAMAPPA AND OTHERS. In this case relevant paragraph 17 reads

as under: "17. On the validity of the Will, it seems to us, that it would be

proper not to express any opinion in this case. A finding on that question

appears to be uncalled for. Even if the Will is valid, the plaintiff's suit cannot be

thrown out. Ext.P.1. gives him the right to proceed against the legatee. If the

Will is not valid, the plaintiff could proceed against the legal representatives of

Masabi. The fate of the suit does not depend upon the genuineness of the Will,

the investigation of which is therefore, uncalled for in this proceedings. We may

however, observe that the Trial Court was not justified in holding that the will

was not justified in holding that the Will was not proved merely on the ground

that the attestors to the deed did not support it. "An attesting witness who

denies attestation may be contradicted by other evidence and the Court is


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competent to disregard the testimony of the attesting witnesses and pronounce

in favour of the Will if it is satisfied from the evidence collectively of from the

circumstances of the case that the requirements of law have been complied

with and the witnesses who had spoken against the will had not spoken the

truth." Vide Kedar Nath vs Rajkumar (1) We may also make it clear that the

proof of a Will is not a matter of mere dispute between contending parties as in

ordinary actions. It is a matter which falls for satisfaction of the judicial

conscience of the Court. If a Will is surrounded by any suspicious

circumstances as it is in the present case, it is always for the propounder to

satisfy the Court by removing such suspicions by cogent and satisfactory

evidence. We leave it at that for any aggrieved party to challenge it in an

appropriate proceeding and we are told already under consideration in a suit as

between some of the legal representatives of Masabi."

REGISTRAR OF DEEDS IS NOT AN ATTESTING WITNESS 2004 SC

Bhagat Ram And Anr. vs Suresh And Ors. AIR 2004 SC 436, The Registrar

of Deeds who had registered a document in discharge of his statutory duty,

does not become an attesting witness to the deed solely on account of his

having discharged the statutory duties relating to the registration of a

document. Registration of any will, and the endorsements made by the

Registrar of Deeds in discharge of his statutory duties do not elevate him to the

status of a 'statutory attesting witness'. However, a registrar can be treated as

having attested to a will if his signature or mark appears on the document akin

to the one placed by an attesting witness and he has seen the testator sign oraffix his mark to the will or codicil or has received from the testator a personal

acknowledgement of his signature or mark and he has also signed in the

presence of the testator. In other words, to be an attesting witness, the

registrar should have attested the signature of the testator in the manner

contemplated by Clause (c) of Section 63 of the Succession Act. No particular

form of attestation is provided. It will all depend on the facts and

circumstances of a case by reference to which it will have to be answered if the

registrar of deeds fulfils the character of an attesting witness also by looking at

the manner in which the events have actually taken place at the time of

registration and the part played therein by the Registrar. .. A Registrar of Deeds

before he be termed an attesting witness, shall have to be called in the witness

box. The court must feel satisfied by his testimony that what he did satisfies

the requirement of being an attesting witness. .. Registration of a document

does not dispense with the need of proving the execution and attestation of a

document which is required by law to be proved in one manner as provided in


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Section 68 of the Evidence Act. Under Section 68 of the Registration Act the

Registrar shall endorse the following particulars on every document admitted to

registration:

(1) the date, hour and place of presentation of the document for registration;

(2) the signature and addition of every person admitting the execution of the

document, and, if such execution has been admitted by the representative,

assign of agent of any person, the signature and addition of such

representative, assign or agent;

(3) the signature and addition of every person examined in reference to such

document under any of the provisions of this Act, and

(4) any payment of money or delivery of goods made in the presence of the

registering officer in reference to the execution of the document, and any

admission of receipt of consideration, in whole or in part, made in his presence

in reference to such execution.

Such particulars as are referred to in Sections 52 and 58 of the Registration

Act are required to be endorsed by Registrar alongwith his signature and date

on document under Section 59 and then certified under Section 60. A

presumption by reference to Section 114 (Illustration (e)) of the Evidence Act

shall arise to the effect that the events containing in the endorsement of

registration, were regularly and duly performed and are correctly recorded.

None of the endorsements, require to be made by the Registrar of Deeds under

the Registration Act, contemplates the factum of attestation within the meaning

of Section 63(c) of the Succession Act or Section 68 of the Evidence Act being

endorsed or certified by the Registrar of Deeds. The endorsements made at the

time of registration are relevant to the matters of the registration only (See:

Kunwar Surendra Bhadur Singh and Ors. v. Thakur Behari Singh and Ors., .

On account of registration of a document, including a will or codicil, a

presumption as to correctness or regularity of attestation cannot be drawn.

Where in the facts and circumstances of a given case the Registrar of Deeds

satisfies the requirement of an attesting witness, he must be called in the

witness box to depose to the attestation. His evidence would be liable to be

appreciated and evaluated like the testimony of any other attesting witness.

BURDEN OF PROOF IN CASE OF WILL AND ITS CIRCUMSTANCES 1977 SC


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SETH BENI CHAND vs SMT. KAMLA KUNWAR AND OTHERS AIR 1977 SC

63, 1977 SCR (1) 578, The mere description of a signatory to a testamentary

document as an attesting witness cannot take the place of evidence showing

due execution of the document. An attesting witness is one who signs the

document in the presence of the executant after seeing the execution of the

document or after receiving a personal acknowledgment from the executant as

regards the execution of the document. .. The onus probandi lies in every

case upon the party propounding a will, and he must satisfy the conscience of

the Court that the instrument so propounded is the last will of a free and

capable testator. Where the circumstances surrounding the execution of the

will are shrouded in suspicion, it is the duty and function of the propounder

to remove that suspicion by leading satisfactory evidence, and by offering an

explanation of auspicious circumstances which can satisfy a prudent mind.

IF ATTESTING WITNESS DENIES OR DOES NOT RECOLLECT EXECUTION

IT CAN BE PROVED BY OTHER EVIDENCE 2003 SC

Janki Narayan Bhoir v. Narayan Namdeo Kadam, AIR 2003 SC 761, [(2003)

2 SCC 91]laid down the law on interpretation and application of Section 71 of

the Act in the following terms: "11. Section 71 of the Evidence Act is in the

nature of a safeguard to the mandatory provisions of Section 68 of the

Evidence Act, to meet a situation where it is not possible to prove the execution

of the will by calling the attesting witnesses, though alive. This section provides

that if an attesting witness denies or does not recollect the execution of the will,

its execution may be proved by other evidence. Aid of Section 71 can be taken

only when the attesting witnesses, who have been called, deny or fail to

recollect the execution of the document to prove it by other evidence. Section

71 has no application to a case where one attesting witness, who alone had

been summoned, has failed to prove the execution of the will and other

attesting witnesses though are available to prove the execution of the same, for

reasons best known, have not been summoned before the court. It is clear from

the language of Section 71 that if an attesting witness denies or does not

recollect execution of the document, its execution may be proved by other

evidence. However, in a case where an attesting witness examined fails to prove

the due execution of will as required under clause ( c ) of Section 63 of the

Succession Act, it cannot be said that the will is proved as per Section 68 of the

Evidence Act. It cannot be said that if one attesting witness denies or does not

recollect the execution of the document, the execution of will can be proved by

other evidence dispensing with the evidence of other attesting witnesses though

available to be examined to prove the execution of the will"


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Section 71 of the Evidence Act is in the nature of a safeguard to the mandatory

provisions of Section 68, Evidence Act, to meet a situation where it is not

possible to prove the execution of the will by calling attesting witnesses, though

alive. This Section provides that if an attesting witness denies or does not

recollect the execution of the will, its execution may be proved by other

evidence. Aid of Section 71 can be taken only when the attesting witnesses,

who have been called, deny or fail to recollect the execution of the document to

prove it by other evidence. Section 71 has no application to a case where one

attesting witness, who alone had been summoned, has failed to prove the

execution of the will and other attesting witnesses though are available to prove

the execution of the same, for the reasons best known, have not been

summoned before the court. It is clear from the language of Section 71 that if

an attesting witness denies or does not recollect execution of the document, its

execution may be proved by other evidence.

However, in a case where an attesting witness examined fails to prove the due

execution of will as required under clause (c) of Section 63 of the Succession

Act, it cannot be said that the Will is proved as per Section 68 of the Evidence

Act. It cannot be said that if one attesting witness denies or does notrecollect the execution of the document, the execution of will can be proved by

other evidence dispensing with the evidence of other attesting witnesses though

available to be examined to prove the execution of the will. Yet, another reason

as to why other available attesting witnesses should be called when the one

attesting witness examined fails to prove due execution of the Will is to avert

the claim of drawing adverse inference under Section 114 illustration (g) of

Evidence Act. Placing the best possible evidence, in the given circumstances,

before the Court for consideration, is one of the cardinal principles of Indian

Evidence Act. Section 71 is permissive and an enabling Section permitting a

party to lead other evidence in certain circumstances. But Section 68 is not

merely an enabling Section. It lays down the necessary requirements,

which the Court has to observe before holding that a document is

proved. Section 71 is meant to lend assistance and come to the rescue of a

party who had done his best, but driven to a state of helplessness and

impossibility cannot be let down without any other means of proving due

execution by "other evidence" as well. At the same time Section 71 cannot be

read so as to absolve a party of his obligation under Section 68 read with

Section 63 of the Act and liberally allow him, at his will or choice to make

available or not a necessary witness otherwise available and amenable to the

jurisdiction of the court concerned and confer a premium upon his omission or

lapse, to enable him to give a go bye to the mandate of law relating to proof of

execution of a will.


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Turning to the facts of the case on hand, it is evident that only one

attesting witness Prabhakar Sinkar, examined in the case, did not prove the

execution of the Will inasmuch as he did not prove the attestation of the Will by

the other attesting witness Wagle who though available was not examined. The

scribe examined in the case was not an attesting witness, which is clear from

the evidence on record and as rightly conceded so by learned counsel for the

respondent before us. Hence, it is unnecessary to go into the question whether

the scribe in this case could or could not be an attesting witness. The evidence

of Sinkar, the only attesting witness, does not satisfy the mandatory

requirements of Section 68 of the Evidence Act. We are not in a position to

accept the contention urged on behalf of the respondent that the evidence of

other witnesses, namely, that of the respondent and the scribe could be

considered under Section 71 of the Evidence Act. Section 71 has no

application when the one attesting witness, who alone has been summoned,

has failed to prove the execution of the will and other attesting witness though

available has not been examined. When the document is not proved as

mandatorily required under Section 68 of the Evidence Act, the provision of

Section 71 of the Evidence Act, which is permissive, and enabling in certain

circumstances as discussed above does not help the respondent. In Vishnu

Ramkrishna & Ors. v. Nathu Vithal & Ors. [(AIR) 1949 Bom. 266], Chagla, C.J.,

speaking for the Division Bench in similar circumstances has stated that

although Section 63 of the Succession Act requires that a will has to be

attested by two witnesses, Section 68 of the Evidence Act permits the execution

of the will to be proved by only one attesting witness being called. Where the

attesting witness, who is called to prove the execution, is not in a position to

prove the attestation of the will by the second witness, the evidence of thewitness called falls short to the mandatory requirements of Section 68. Section

71 of the Evidence Act can only be requisitioned when the attesting witnesses

who have been called failed to prove the execution of the will by reason of either

denying their own signatures or denying the signature of the testator or having

no recollection as to the execution of the document. This Section has no

application when one attesting witness has failed to prove the execution of the

will and other attesting witnesses were available who could prove the execution

if they were called.

WHEN THE ORIGINAL WILL IS LOST LOSS OF ORIGINAL TO BE

PROVED 2007 SC

Benga Behera & Anr vs Braja Kishore Nanda & Ors (AIR 2007 SC 1975), A

document upon which a title is based is required to be proved by primary


27/45

evidence, and secondary evidence may be given under Section 65(c) of the

Evidence Act. Loss of the original, therefore, was required to be proved. In a

case of this nature, it was obligatory on the part of the first respondent to

establish the loss of the original Will, beyond all reasonable doubt. His

testimony in that behalf remained uncorroborated. Furthermore, secondary

evidence, could be led by production of a certified copy given in terms of the

provisions of the Indian Registration Act. In support of the proof of the Will,

purported Xerox copy and a certified copy thereof have been produced. In the

Xerox copy, an endorsement has been made by an advocate that the executant

was his client and it was written by his clerk in his office on his dictation,

whereas in the certified copy there is no such endorsement of the advocate. A

question has also been raised as to whether a certificate by Sub-Registrar at

the time of registration proves attestation. A Sub-Registrar in the matter of

registration of a document acts under the provisions of the Registration Act,

1908. S.52 of the 1908 Act prescribes the duty of Registering Officer when

document is presented in terms thereof. The signature of every person

presenting a document for registration is required to be endorsed on every such

document at the time of presentation. If an authority in performance of a

statutory duty signs a document, he does not become an attesting witness

within the meaning of s.3 of the Transfer of Property Act and s.63 of the

Succession Act. "Animus attestandi" is a necessary ingredient for proving the

attestation. If a person puts his signature in a document only in discharge of

his statutory duty, he may not be treated to be an attesting witness.

A question has also been raised as to whether a certificate by Sub-Registrar at

the time of registration proves attestation. A Sub-Registrar in the matter of

registration of a document acts under the provisions of the Registration Act,

1908 (1908 Act). Section 52 of the 1908 Act prescribes the duty of Registering

Officer when document is presented in terms thereof. The signature of every

person presenting a document for registration is required to be endorsed on

every such document at the time of presentation. Section 58 prescribes the

particulars to be endorsed on documents admitted to registration, such as :

"(a) Signature of the person admitting the execution of the document;

(b) Any money or delivery of goods made in presence of Registering Officer in

reference to the execution of the document shall be endorsed by the Registering

Officer in the document presented for Registration.

Therefore this is the only duty cast on the Registering authority to endorse on

the will, i.e. to endorse only the admission or execution by the person who


28/45

presented the document for registration. The compliance of this provision leads

to the legal presumption that the document was registered and nothing else.."

If an authority in performance of a statutory duty signs a document, he does

not become an attesting witness within the meaning of Section 3 of the

Transfer of Property Act and Section 63 of the Succession Act. The term

`attestation' means: "to `attest' is to bear witness to a fact. The essential

conditions of valid attestation are (i) two or more witnesses have seen the

executant sign the instrument (ii) each of them has signed the instrument in

presence of the executant.

"Animus attestandi" is a necessary ingredient for proving the attestation. If a

person puts his signature in a document only in discharge of his statutory

duty, he may not be treated to be an attesting witness. .. The said witness

did not know the testatrix personally. Even her parentage was not asked for

and inquired into. He was examined eight years after the registration. It is

difficult for any ordinary person after a period of eight years, inter alia, on the

basis of a certified copy to depose in regard to evidence of such nature,

particularly, in a case where a Will has been executed on the day on which she

had executed a deed of sale in favour of a complete stranger. His evidence,

therefore, does not inspire confidence. In any event he cannot be said to have

proved due execution or attestation of the Will.

It is now well settled that requirement of the proof of execution of a Will is the

same as in case of certain other documents, for example Gift or Mortgage. The

law requires that the proof of execution of a Will has to be attested at least by

two witnesses. At least one attesting witness has to be examined to prove

execution and attestation of the Will. Further, it is to be proved that the

executant had signed and/or given his thumb impression in presence of at

least two attesting witnesses and the attesting witnesses had put their

signatures in presence of the executant.

WHEN THE WILL CAN BE DOUBTED

Joseph Antony Lazarus (Dead) by LRs v. A.J. Francis [(2006) 9 SCC

515] in which the Apex Court has held that non-mention in the Will about

other sons of testatrix while bequeathing the entire property to two sons alone

and suspicious circumstances of execution of the Will like old age, indifferent

health of testatrix, existence of two different signatures of testatrix on each


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page of the Will, registration of the Will after one year, non- examination of

advocate who had drafted the Will and Sub- Registrar before whom Will was

presented for registration makes genuineness of the Will doubtful.

Honourable Supreme Court Niranjan Umeshchandra v. Mrudula Jyoti Rao

and Ors, AIR 2007 SC 614, in which it has been held by the Apex Court that

execution of Will while the testator was admitted in ICU of hospital and other

circumstances make genuineness of execution of the Will suspicious.

Court in H. Venkatachala Iyengar vs B.N. Thimmajamma and others (AIR

1959 SC 443),wherein the following circumstances were held to be relevant

for determination of the existence of the suspicious circumstances :

(i) When a doubt is created in regard to the condition of mind of the testator

despite his signature on the Will;

(ii) When the disposition appears to be unnatural or wholly unfair in the light of

the relevant circumstances;

(iii) Where propounder himself takes prominent part in the execution of Will

which confers on him substantial benefit.

Honourable Supreme Court Niranjan Umeshchandra v. Mrudula Jyoti Rao

and Ors, AIR 2007 SC 614,wherein it is held as follows: There are several

circumstances which would have been held to be described by the Supreme

Court as suspicious circumstances. These circumstances are (i) When a doubt

is created in regard to the condition of mind of the testator his signature on the

Will; (ii) When the disposition appears to be unnatural or wholly unfair in thelight of the relevant circumstances; (iii) Where propounder himself takes

prominent part in the execution of Will which confers on him substantial

benefit.

In Ramabai Padmakar Patil (Dead) though L.Rs. and Others v. Rukminibai

Vishnu Vekhande and Others [(2003) 8 SCC 537], Court held : 8. A Will is

executed to alter the mode of succession and by the very nature of things it is

bound to result in either reducing or depriving the share of a natural heir. If a

person intends his property to pass to his natural heirs, there is no necessity

at all of executing a Will. It is true that a propounder of the Will has to remove

all suspicious circumstances. Suspicion means doubt, conjecture or mistrust.

But the fact that natural heirs have either been excluded or a lesser share has

been given to them, by itself without anything more, cannot be held to be a

suspicious circumstance, especially in a case where the bequest has been


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made in favour of an offspring._ [See also S. Sundaresa Pai and Others v.

Sumangala T. Pai (Mrs.) and Another - 2002 (1) SCC 630].

MODE OF PROVING WILL

Savithri & Ors vs Karthyayani Amma & Ors (2007) 11 SCC 621] A Will like

any other document is to be proved in terms of the provisions of the Indian

Succession Act and the Indian Evidence Act. The onus of proving the Will is on

the propounder. The testamentary capacity of the propounder must also be

established. Execution of the Will by the testator has to be proved. At least one

attesting witness is required to be examined for the purpose of proving the

execution of the Will. It is required to be shown that the Will has been signed

by the testator with his free will and that at the relevant time he was in sound

disposing state of mind and understood the nature and effect of the

disposition. It is also required to be established that he has signed the Will in

the presence of two witnesses who attested his signature in his presence or in

the presence of each other. Only when there exist suspicious circumstances,

the onus would be on the propounder to explain them to the satisfaction of the

court before it can be accepted as genuine.

In Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao & Ors. [2006 (14)

SCALE 186],Court held : Section 63 of the Indian Evidence Act lays down the

mode and manner in which the execution of an unprivileged Will is to be

proved. Section 68 postulates the mode and manner in which proof of

execution of document is required by law to be attested. It in unequivocal

terms states that execution of Will must be proved at least by one attesting

witness, if an attesting witness is alive subject to the process of the court and

capable of giving evidence. A Will is to prove what is loosely called as primary

evidence, except where proof is permitted by leading secondary evidence.

Unlike other documents, proof of execution of any other document under the

Act would not be sufficient as in terms of Section 68 of the Indian Evidence

Act, execution must be proved at least by one of the attesting witnesses. While

making attestation, there must be an animus attestandi, on the part of the

attesting witness, meaning thereby, he must intend to attest and extrinsic

evidence on this point is receivable. The burden of proof that the Will has been

validly executed and is a genuine document is on the propounder. The

propounder is also required to prove that the testator has signed the Will and

that he had put his signature out of his own free will having a sound


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disposition of mind and understood the nature and effect thereof. If sufficient

evidence in this behalf is brought on record, the onus of the propounder may

be held to have been discharged. But, the onus would be on the applicant to

remove the suspicion by leading sufficient and cogent evidence if there exists

any. In the case of proof of Will, a signature of a testator alone would not prove

the execution thereof, if his mind may appear to be very feeble and debilitated.

However, if a defence of fraud, coercion or undue influence is raised, the

burden would be on the caveator. [See Madhukar D. Shende v. Tarabai

Shedage (2002) 2 SCC 85 and Sridevi & Ors. v. Jayaraja Shetty & Ors. (2005) 8

SCC 784]. Subject to above, proof of a Will does not ordinarily differ from that

of proving any other document.

Gurdial Kaur and Others v. Kartar Kaur and Others [(1998) 4 SCC 384],

wherein it was held : 4. The law is well settled that the conscience of the court

must be satisfied that the Will in question was not only executed and attested

in the manner required under the Indian Succession Act, 1925 but it should

also be found that the said Will was the product of the free volition of the

executant who had voluntarily executed the same after knowing and

understanding the contents of the Will. Therefore, whenever there is any

suspicious circumstance, the obligation is cast on the propounder of the Will to

dispel the suspicious circumstance. As in the facts and circumstances of the

case, the court of appeal below did not accept the valid execution of the Will by

indicating reasons and coming to a specific finding that suspicion had not been

dispelled to the satisfaction of the Court and such finding of the court of appeal

below has also been upheld by the High Court by the impugned judgment, we

do not find any reason to interfere with such decision. This appeal, therefore,

fails and is dismissed without any order as to costs.

Honourable Supreme Court Janki Narayan Bhoir v. Narayan Namdeo

Kadam, (2003) 2 SCC 91, at Page 102, wherein the Honourable Supreme

Court has held that 'although Will is required to be attested by two witnesses,

it could be proved by examining one of the attesting witnesses as per Section

68 of the Indian Evidence Act and further, one attesting witness examined

should be in a position to prove an execution of the Will and as per Section 71

of the Indian Evidence Act, if an attesting witness denies or does not recollect

execution of the document, its execution may be proved by other evidence and

moreover, this Section has no application when one attesting witness has failed

to prove the execution of the Will and other attesting witnesses were available

who could prove the execution if they were called.'


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Court in Mst. Karmi Vs. Amru reported in AIR 1971 SC 745,a widow who

succeeds to the property of her deceased husband on the strength of his will,

cannot claim any right other than those conferred by the will. Thus life estate

given to her under a will cannot become an absolute estate under the

provisions of Section 14 (2) of the Hindu Succession Act, 1956.

In Navneet Lal Vs Gokul and others reported in 1976 (1) SCC 630,a bench

of three judges of this court was concerned with an almost identical situation,

wherein a life estate was created by the testator in favour of his wife. After

going through the will, this Court held that it was permissible for the testator

to create a limited estate in favour of his wife by making a will.

S.B. Itigi and anr vs Sulochana and ors ILR 2007 Kar 247 wherein

Karnataka High court has observed that, non signing on the first page of the

Will creates doubt, in normal course the signature of the testator will be upon

all the pages.

The Apex Court in a judgment reported in 2008 AIR SCW 5666 in thematter of Baljinder Singh vs. Rattan Singh has held, the Will executed and

registered not at place where testator usually visited or resided. The attesting

witness not known to testator, and Will does not make any reference to the real

son of the testator creates a Will as suspicious.

In Shivdev Kaur (D) by L.Rs. & Ors. v. R.S. Grewal (Civil Appeal

Nos.5063-5065 of 2005, decided on 20.3.2013), Court dealt with the issue

of Section 14(2) of the Act 1956 and held :- Thus, in view of the above, the law

on the issue can be summarised to the effect that if a Hindu female has been

given only a life interest, through Will or gift or any other document referred

to in Section 14 of the Act 1956, the said rights would not stand crystallised

into the absolute ownership as interpreting the provisions to the effect that she

would acquire absolute ownership/title into the property by virtue of the

provisions of Section 14(1) of the Act 1956, the provisions of Sections 14(2) and

30 of the Act 1956 would become otios. Section 14(2) carves out an exception

to rule provided in sub-section (1) thereof, which clearly provides that if a

property has been acquired by a Hindu female by a Will or gift, giving her only

a life interest, it would remain the same even after commencement of the Act

1956, and such a Hindu female cannot acquire absolute title.

WILL UNDER SUSPICIOUS CIRCUMSTANCES


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THE HON'BLE MR. JUSTICE N. KUMAR AND THE HON'BLE MR. JUSTICE

H. S. KEMPANNA of Karnataka High Court in the case of Smt Sulochana

Manvi vs Chitriki Shivayogappa Decided on 8 August, 2012

It is well settled that if the persons who would get the property of the testator

by inheritance are deprived of the said property by a Will and no reasons are

coming forward to explain this disinheritance, that itself constitutes a

suspicious circumstance. Then again a duty is cast on the propounder of the

Will to remove the said suspicious circumstance. In the Will all that has been

said is, testator has performed the marriages of his daughter and the plaintiff

and none of them are living with him. He has given them gold ornaments and

stree dhana; he does not want any dispute after his death in respect of his

share in the joint family property and therefore he is making the Will.

Absolutely no material is placed on record by the propounder of the Will to

show what is that stree dhana given to the plaintiff and to the other daughters.

In so far as gold ornaments are concerned, it is customary in a Hindu family

especially when people are coming from a fairly affluent rich family as that of

the parties to the proceedings, daughters are given these gold ornaments. That

cannot be construed as a share in a joint family property. If any property isgiven as stree dhana out of the joint family property, probably that would be a

sufficient ground to deny a share in the joint family property. Though there is a

reference to stree dhana in the Will, absolutely no evidence is place on record.

On the contrary, the evidence on record discloses, not an inch in the joint

family property is given to the plaintiff in particular and to the daughters of the

deceased testator. If no stree dhana property out of the joint family property is

given and if no reasons are given for denying the daughters of the family and

the plaintiff who is a son's daughter, that itself constitutes a suspicious

circumstance, which compels the propounder to give satisfactory explanation

to discharge the said suspicious circumstance. No evidence is coming forward

in this direction. If really the testator wanted to exclusively give his share in the

joint family property to his two sons and he had no intention of giving any such

property to his daughters or to the plaintiff who is none other than a son's

daughter and he bequeathed his undivided share under Ex.D.3, three years

thereafter he has effected a partition of the joint family property by way of a

Registered Partition Deed- Ex.P.2 dated 05.08.1959. In the said registered

partition deed there is no reference to this Will-Ex.D.3. The recitals in the said

partition deed makes it clear in order to prevent any disputes arising in future

and consequently the family getting into difficulties, the parties, i.e., the

testator and his two sons, decided that it is proper to live separately. Therefore

they effected partition of all the joint family properties under Ex.P.2; the gold

and silver utensils and other household articles were distributed, then the


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immovable properties were divided into three shares, i.e., A, B & C. 'A' share

was allotted to the share of the testator; 'B' and 'C' shares were allotted to the

share of the defendant nos. 1 and 2. Full description of the properties were

given. On the day the partition deed was executed the testator Totappa was not

in a position to affix his signature due to a paralytic stroke and therefore he

put his left hand thumb impression, it is on 05.08.1959. He died on

15.03.1960. It is in this context, it is necessary to find out when did this

paralytic stroke occurred, because as the Will was executed on 26.07.1956 it is

necessary to find out whether the testator was in a sound state of mind. Even

in the absence of any specific contention, a propounder in order to succeed in a

Court of law in proving the Will owes a duty to establish to the satisfaction of

the Court that the testator was in a sound state of mind and that he executed

the Will out of his own free Will. The Apex Court in the aforesaid judgment has

held that the condition of the testator's mind may appear to be very feeble and

debilitated and therefore when the disposition made in the Will is unnatural,

improbable or unfair and when the Will indicates that the said disposition may

not be the result of the testator's free Will and mind, the presence of such

suspicious circumstances naturally tends to make initial onus very heavy and

unless it is satisfactorily discharged, Courts should be reluctant to treat the

document as the last Will of the testator. The propounder has to show by

satisfactory evidence that the Will was signed by the testator and the testator

at the relevant time was in a sound and disposing state of mind, that he

understood the nature and effect of the disposition and put his signature to the

document out of his own free will. In this background when admittedly in 1959

the testator had a paralytic stroke and immediately thereafter he died the Will

having come into existence about three years prior to the partition deed, unlessthe propounder of the Will by satisfactory evidence satisfy the Court that the

testator was in a sound state of mind on the date of execution of the Will; the

Will cannot be said to have proved in accordance with law. If the Will is validly

executed and ins

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