All these three requirements by its nature would show the mandate to be complied with in the execution of a Will or Codicil apart from a document required by law to be attested. A mere attestation as in the case of a document required by law to be attested is not sufficient in the matter of execution of a Will or Codicil and it should satisfy the requirements as enumerated under clauses (a) and (b) to Section 63 of the Indian Succession Act, besides the requirement as enumerated in clause (c). Different treatments were given to a Will and Codicil apart from other document required by law to be attested by insisting compliance under Clause (a) to (c) to S. 63 of Indian Succession Act. Apart from the above said requirement regarding execution of a Will or Codicil, in the matter of proof also, a different treatment was given apart from a document required by law to be attested under S. 68 of Indian Evidence Act. The reason is quite obvious that the question of genuineness of signature of testator and due execution of a Will or Codicil would arise only after his or her death. The Clause (b) to S. 63 mandates that the signature or mark of the testator or the person who signed on behalf of the testator, "shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will" which stands for affixture of signature by the testator or person under his instruction, in his presence, to give effect to the document with full knowledge at his free volition, free from any vitiating circumstance. It is by virtue of clause (b) to S. 63 of the Act, a burden cast upon the proponder to explain and clear out all suspicious circumstance attached to the execution of the Will or Codicil. But no such requirement is mandated in the matter of a document required by law to be attested, such as gift, settlement, etc. When legatee is permitted to stand as an attesting witness that itself amounts to a suspicious circumstance within the meaning of clause (b) to S. 63 of Indian Succession Act when read along with the other two mandate - clauses (a) and (c) to S. 63 of the Act Needless to say that a Will or Codicil attested by legatees alone or the person interested with the legatees who holds a fiduciary relationship with the legatee/legatees would itself amounts to suspicious circumstance attached to its execution, absence of an independent attesting witness to the document is so fatal to the bequest under the document. It would destruct the legislative intention demanding compliance of mandate incorporated both under S. 68 of Indian Evidence Act and S. 63 of Indian Succession Act and their evidence or attestation would stand as self serving, though there is no provision debarring attestation by a legatee as far as an unprivileged Will of a Hindu is concerned. Atleast one of the attesting witness should be an independent witness and his examination cannot be avoided if he is capable of giving evidence and amenable to the process of the court for proving the Will or Codicil in accordance with the mandate under S. 68 of the Evidence Act. In short, a legatee under the Will or a person who is interested in the bequest cannot be an independent witness for the purpose of attestation to a last testament either as a Will or Codicil and hence mere examination of a legatee who stand as one of the attesting witness would not be a sufficient compliance of mandate under S. 68 of the Evidence Act. In the instant case, the only witness examined to prove the due execution of Ext. A4 is the first defendant and the Will was executed in favour of his children by giving major portion of the property and hence he cannot be an independent witness for the purpose of mandate under S. 68 of Indian Evidence Act in proof of execution of Ext. A4 Will.
IN THE HIGH COURT OF KERALA
S.A. No. 717 of 2002
Decided On: 29.01.2019
Raveendran Nair Vs. Raman Nair
Hon'ble Judges/Coram:
P. Somarajan, J.
Citation: AIR 2019 Kerala 91
