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. arayan 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 ign 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 effectas 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 presenceof the testator."
As regards compliance of the provision of Section 68 of the EvidenceAct, 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 andthe other attesting witness in order to prove there was due execution of thewill. 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. Whereone attesting witness is examined and he fails to prove the attestation of thewill by the other witness there will be deficiency in meeting the mandatory
requirements of Section 68 of the Evidence Act. "
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