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Appellants: Lalitaben Jayantilal Popat
Respondent: Pragnaben Jamnadas Kataria & Others
Hon’ble Justice S.B. Sinha and Cyriac Joseph, JJ
Date Of Appeal: 2008
Date Of Judgement: Fri Dec 19 2008
A person executed a Will on 15.4.1978 and died on 30.11.1984 leaving behind his two sons (Jamnadas and Jayantilal) and two daughters (Kasturben and Lalita – appellants in this case). Jamnadas died leaving behind his wife and two daughters, the respondents in this case. Jayantilal died issueless. He intended to have executed two Wills; one on 31.1.1995 propounded by the appellant and the other on 18.6.1995 propounded by respondents.
Respondents filed an application for grant of probate (legal validation of the Will by competent court) for the Will dated 18.6.1995, while appellants filed for the Will dated 31.1.1995. The District Judge granted probate in respect to the Will dated 18.6.1995 while the other application was dismissed. Aggrieved by this decision, appeals were preferred by the appellants.
It was argued by the appellants that a Will, having regard to the provisions contained in Section 63(c) of the Indian Succession Act, is required to be attested by two or more witnesses. Furthermore, although in terms of Section 68 of the Indian Evidence Act it is permissible to examine one witness, this witness must confirm the valid execution and attestation of the Will in the court, i.e., both witnesses have signed in the presence of the testator (the person who made the Will) or the testator has either signed in presence of one or acknowledged his signature before the other.
The Will was in Gujarati. It was typed, and who documented the Will is not known. The attesting witness also confirmed that he was alone with the testator and the testator had already put his signature. The second witness said that the Will had been signed in his presence. It has, therefore, not been proved that both the attesting witnesses either attested the Will in the presence of each other or the testator had acknowledged his signature in the presence of the other witness.
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. However, this attesting witness is to be able to prove the execution of the Will. In this case, the witness was unable to prove the execution of the Will in accordance with the law, and the Will is surrounded by suspicious circumstances.
Thus, the court held the execution of the Will in question to not be proved.
For a Will to be valid under Section 63(c) of the Indian Succession Act, it must be attested by two or more witnesses who have actually seen the person who has made the Will. While Section 68 of the Indian Evidence Act allows proving a Will by examining one attesting witness, this witness must confirm before the court of law that the execution was proper and held in accordance with the law.
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