"(1) Can the execution of a Will and its attestation be on a date subsequent to the date shown in it as the date of its execution?
The evidence tendered by the defendants to prove the execution of Ext. B2 Will and the genuineness of Ext. B2 Will have also to be considered. DW2 is the scribe who prepared Ext. B2 Will. Ext. B2 is dated 21.03.2001. The date of execution of Ext. B2 Will is clearly shown as 21.03.2001. According to DW2, Ext. B2 was prepared as instructed by Raghavan Vaidyar and his wife. At the same time, DW1 who is the wife of testator, has clearly stated that Raghavan Vaidyar was not in the habit of discussing such matters with her. According to DW2, Ext. B2 Will was registered on 27.03.2001. He clearly narrated and explained that on 27.03.2001 at 9.30 a.m., the testator, his wife and two attestors came to his office. Ext. B2 Will was read over to them. The testator signed in Ext. B2 Will in his presence as well as in the presence of the attestors. Thereafter, the attestors affixed their signatures. After that they went to the Sub Registry office and got Ext. B2 Will registered.
21. In cross- examination, DW2 has clearly deposed that Ext. B2 Will was prepared on 21.03.2001 and it was signed on 27.03.2001. When he was asked whether the testator and the attesting witnesses had affixed their signatures in Ext. B2 Will on 21.03.2001, he clearly stated that the signatures were affixed on 27.03.2001. In re-examination he was made to say that Ext. B2 Will was intended to be registered on 21st and thereby it was prepared and subsequently it was postponed to 27th when he was so instructed over phone.
22. DW3 is one of the attesting witnesses in Ext. B2. His evidence in chief examination itself shows that the document was read over to them and thereafter Raghavan Vaidyar affixed his signature on all the pages of Ext. B2 Will in his presence and the other attesting witnesses, and they could see him signing it. Thereafter, he along with other attesting witnesses, after writing their names and addresses in the last page of Ext. B2 Will, affixed their signatures. Strangely enough, DW3 has no case that he along with the other attesting witnesses had affixed their signatures in the presence of the testator or that the testator could see them affixing their signatures in Ext. B2 Will. Therefore, such an attestation cannot be treated as proper and valid attestation within the meaning of S.63(c) of the Indian Succession Act.
23. In cross-examination, DW3 has deposed that the testator had given instructions to the document writer to prepare Ext. B2 Will while they were in the car. He clearly admitted that it is false to state that the signatures were affixed in Ext. B2 Will on 21.03.2001. Apart from that, the credibility of DW3 has also to be considered. He has clearly admitted that he was an accused in a vehicle theft case and further that another case was there against him when he was found in suspicious circumstances.
24. Execution of a document and registration of a document are totally different. The formalities for attestation contemplated under Section 63 of the Indian Succession Act is confined to the execution of a Will and not for its registration. A Will is not a compulsorily registrable document. In fact, registration has no importance at all; whereas, registration may result in some sort of added credibility on the proof of its execution. The presence of identifying witnesses before the Registrar cannot be substitute of valid attestation in the case of a Will. The attestation contemplated under Section 63(c) of the Indian Succession Act is confined to the execution and not the registration.
25. On a perusal of Ext. B2 Will and the written statement filed by defendants 1 to 3, it could be seen that the date of execution of Ext. B2 Will is 21.03.2001. When Ext. B2 Will was allegedly executed on 21.03.2001, it cannot be said that the attestation of such a document was on 27.03.2001. The document was registered on 27.03.2001 only. When it is shown that the document was executed on 21.03.2001, that date should be the date of its execution as well as attestation. It has clearly come out from the evidence of DW2 and DW3, that Ext. B2 Will was not executed on 21.03.2001, which date it bears as the date of its execution.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA No. 779 of 2011 (A)
Decided On: 07.03.2017
K.C. Bindu and Ors. Vs.Leela Kollandi and Ors.
Hon'ble Judges/Coram:
B. Kemal Pasha, J.
Citation: AIR 2017(NOC)1119 Kerala
