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Supreme Court decision on ‘Will’

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) that 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.”