Home › Allied Laws › Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh (2009) 4 SCC 780

Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh (2009) 4 SCC 780

Indian Succession Act, 1925
S. 63: Execution of wills- Requirements of a valid will – The attesting witness should speak not only about the testator’s signature or affixing his mark to the will but also that each of the witnesses had signed the will in the presence of the testator – execution must be proved by at least one attesting witness, if an attesting witness is alive. [Indian Evidence Act, 1872 , S . 68]

Facts

Appellant filed an application alleging that her late father in-law had duly executed his last will on 13-8-86 in accordance with law, in presence of two attesting witnesses, bequeathing a plot of land in Imphal in her favour. The Respondents questioned the genuineness of execution of the will and contended that the court fee was not properly paid. The District court opined in favour of     the Appellant and directed that a letter of administration be issued in her favour  on her deposit of the requisite stamp. The High Court held that evidence of attesting witness was vague and it cannot be said that there was due execution of the will in question. The High Court opined that no issue was framed regarding   the genuineness of the Will, and the requirements of Section 63 and Section 68.

 

Issue

Whether the Will under question and the execution thereof was in accordance with law?

 

Held

The Court relied on H. Venkatachala Iyengar v. B. N. Thimmajamma & Others 1959 AIR 443 to hold that there may be cases in which the execution of the will may be surrounded by suspicious circumstances. Such suspicious circumstances may be a shaky signature, a feeble mind and unfair and unjust disposal of property or the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit or the will may otherwise indicate that the said dispositions may not be the resultof the testator’s free will and mind. In such circumstances, it would be a part of the initial onus to remove any such legitimate doubtsin the matter.

For this purpose, Section 68 of the Evidence Act postulates the mode and manner of proof of execution of document which is required by law to be attested stating that the execution must be proved by at least one attesting witness, if an attesting witness is alive andsubject to the process of the court and capable of giving evidence.

 

 

As per provisions of Sec. 63 of the Succession Act, for the due execution of a    will:

  • the testator should sign or affix his mark to the will;
  • the signature or the mark of the testator should be so placed that it should appear that it was intended thereby to give effect tothe writing as a will;
  • the will should be attested by two or more witnesses, and
  • each of the said witnesses must have seen the testator signing or affixing his mark to the will and each of them should sign the will in the presence   of the

The attestation of the Will in the manner stated above was not an empty formality. It means signing a document for the purposeof testifying of the signatures of the executants. The attested witness should put his signature on the Will  animo attestandi. It is not necessary that more than one witness be present    at the same time and no particular form of attestation is necessary.

Yet again, Section 68 of the Evidence Act postulates the mode and manner of proof of execution of document which is required by law to be attested stating    that the execution must be proved by at least one attesting witness, if an attesting witness is alive, and subject to the process of the court and capable of giving evidence.

Having regard to the fact that the will was a registered one and the propounder   had discharged the onus, it was held that in such circumstances, the onus shifts    to the contestant opposing the will to bring material on record meeting such prima facie case in which event the onus shifts back on the propounder to satisfy the court affirmatively that the testator did not know well the contents of the    will and in sound disposing capacity executed the same. (CA No. 1600 of 2009     dt. 6-3-2009)

Editorial: The decision was relied upon in Gopal Swaroop v. Krishna Murari Mangal & Ors [CA No. 6801 of 2003] to hold that in the matter of proof of documents as in the case of the proof of Wills, it is ideal to expect proof with mathematical certainty and the test to be always applied is the test of satisfaction  of a prudent mind in such matters.

“The law of sacrifice is uniform throughout the world. To be effective it demands the sacrifice of the bravest and the most spotless.”

– Mahatma Gandhi