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Appellants: Benga Behera and Another (Legal Heirs)
Respondent: Braja Kishore Nanda and Others (Beneficiary)
Hon’ble Justice S.B. Sinha and Markandey Katju JJ
Date Of Appeal: 2003
Date Of Judgement: Tue May 15 2007
It is a case in which the validity of the executed Will dated 15.01.1982 by Sarajumani Dasi, a 70-year-old woman, in favour of Braja Kishore Nanda, who was a complete stranger to her family, was challenged by the actual legal heirs. The stranger upon who’s favour the Will was executed, seems to be the son of the founder of Bharathi math at Puri where Sarajumani Dasi was residing and further, he claims that he too was residing along with her in that math, wherein he was taking a proper care and providing necessary help and assistance to Sarajumani Dasi during that time and in return of which she executed the Will in his favour. Later, the person in who’s favour the Will was executed applied for a grant of probate (the process through which the Will is legally validated by the competent court) and the execution of the Will was proved by oral testimonies by the scribe and witnesses. The actual legal heirs challenged the grant of probate based on various grounds such as it was not made out of free consent and further, it was made by her when she was not in a sound mind (wherein she was not even in the capacity to read and understand the contents of the Will).
The court rightly set aside the subordinate court’s judgment and allowed the appeal based on the suspicious circumstances that were prevailing in this case. The scribe mentioned that it was the first time of him seeing the Will executor, that too during him signing the Will, and there were no instances where he has met her before. So, overall the absence of the original Will, inconsistencies in the witness testimonies and thumb impressions given thereunder the Will lead to the image of such suspicious circumstances, which the Judges considered and was of the view that the Will executed must be of free consent and further, two witnesses has to be present while the Will is being executed as per the law, which was not promptly followed in this case and hence, it was considered just to allow an opportunity to proceed with this appeal challenging its validity.
As clarified by the court, the authority who is present at the time of signing the Will cannot be an attesting witness to it within the meaning of Section 3 of the Transfer of Property Act and Section 63 of the Succession Act. The authority is to perform his duty as mandated by law and not there to be a witness. The term ‘attestation’ means: to ‘attest’ is to bear witness to a fact. The ingredients of valid attestation are:
Animus attestandi – intent to attest – is a necessary element for proving the attestation. If a person puts his signature on a document only in discharge of his statutory duty, he may not be treated as an attesting witness.
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