EXECUTION OF A WILL

( with the relevant case -law analysis )

By

Y. SRINIVASA RAO,
M.A (English); B.Ed; B.L., (LL.M).
I Additional Junior Civil Judge,
Bhimavaram, West Godavari Dist.
Andhra Pradesh. India.
E-mail: y.srinu.judge@gmail.com

A document by which a person (called the trestator) appoints

executors to administer his estate after his death, and directs the
manner in which it is to be distributed to the beneficiaries he
specifies1.

The process by which a testator's Will is made legally valid 2 is known as

Execution of Will. A Will is a legal document, signed in compliance with
the various formalities covered by the legislation. It is the expression of
the testator's wishes concerning how his/her property is to be distributed.
It is the only way one can ensure his/her assets will be distributed
according to his/her wishes after his/her death. It should be in written,
however it may be either handwritten, or printed, or typed. The testator
must sign at the end of the Will. It must be witnessed by at least two
perons present at the time of signing by the testator. The said two
persons ,who witnessed, must acknowledge they were present and must
sign the Will as witnesses in presence of the testator. Making of a Will is
the only remedy to be sure that asest of testator go to the persons he/she
loves.

The essential terms:

administrator3 - A person appointed by the Court to collect and
distribute a deceased person's estate when the deceased died instate, his
will did not appoint an executor, or the executor refuses to act.
Beneficiary 4– 1. A person entitled to benefit from a trust. A beneficiary
was formerly known as the cestui que trust. 2. One who benefuts from a
will.
Bequest5 – A gift by will of property other than land.
Codicil6 – A document supplementary to a will.
demonstrative legacy7 - A demonstrative legacy is payable from a
specified fund.
devise8 - A gift by will of real property; the beneficiary is called the
devisee.
Distribution9 – The process of hand ing over to the beneficiaries their
entitlements under a deceased person's will or on his intestacy. succession

1 Oxford Dictionary of LAW, Third Edition, at page 428

2 Oxford Dictionary of LAW, Third Edition, at page 154
3 Oxford Dictionary of LAW, Third Edition, at page 11
4 Oxford Dictionary of LAW, Third Edition, at page 39
5 Oxford Dictionary of LAW, Third Edition, at page 39
6 Oxford Dictionary of LAW, Third Edition, at page 70 (see it to know more)
7 Oxford Dictionary of LAW, Third Edition, at page 226 in word '' legacy''
8 Oxford Dictionary of LAW, Third Edition, at page 123
9 Oxford Dictionary of LAW, Third Edition, at page 130
executor10- A person appointed by a will to administer the testator's
estate.
Inheritance11 – Property that a beneficiary receives from the estate of a
deceased person.
Intestacy12- The state in which a person dies without having made a will
disposing of all his property.
Intestate - A person who did not execute a will as to his all property
during his life time.
legacy13 - A gift of personal property effected by will. Specific legacy is
a particular identifiable object.
legatee14 - The person to whom a legacy is given.
Probate - Probate is an acceptance or approval by the court of law that
how testator's assets are to be settled.
testate15 – Having left, at one's death, a legally valid will.
testator16 - A person who makes a will.

General Essential Requirements for Making of a WIll:

-A person, being major, and of sound mind can execute a Will.

- He/she can dispose of all his/her property or any part of property under a
Will.

 The Will must a last Wil and testament.

 A declaration should be given by the testator that he/she revokes all

earlier Wills if any.

 However, in case of a subsequent Will is totally inconsistent and void

with an earlier Will, the earlier Will can be considered by implecation
as if it is revoked.

 A Will should be made by the testator who has having sound mind in
state.

 The testator should execute the Will in presence of at least two

witnesses.

 The maker of the Will should sign or put his /her mark at the end of
the Will. If the testator does not signor put his/her mark at the end of
the Will, the text following the singature or mark usually be ignored or
the entire Will may be invalidated. Therefore, care should be taken to
avoid defeat of intention of the testator.

 Normally, non registration of a Will does not lead to any inference

against the genuineness of a Will.

 A Will may be revoked by the execution of a new Will by the testator.

10 Oxford Dictionary of LAW, Third Edition, at page 154
11 Oxford Dictionary of LAW, Third Edition, at page 200
12 Oxford Dictionary of LAW, Third Edition, at page 210
13 Oxford Dictionary of LAW, Third Edition, at page 226
14 Oxford Dictionary of LAW, Third Edition, at page 227
15 Oxford Dictionary of LAW, Third Edition, at page 398
16 Oxford Dictionary of LAW, Third Edition, at page 398
 Yet, in case of muslim testator, Muslim can bequeath one 1/3rd of his
property.

 The heirs of a Muslim can consent to bequeath more than 1/3rd of

estate of testator.

 A Muslim testator can cancell any legacy or change his Will.

 It is to be remembered that Muslim Personal Law governs muslim

testator to make a Will.

 Muslim may make a Will either orally or in written. Yet, writtten Will
is desirable.

 In case of a written Will, as to Muslim, such Will need not be attested.

That too, the provisions of Indian Succession Act do not usually apply
to them unless specifically mentioned in the said Act.

-At this juncture, it would be more useful to look into Section 68 of the
Indian Evidence Act, 1872 and also Section 63 of the Indian Succession
Act, 1925. Section 68 of the Indian Evidence Act, 1872 reads as follows17;
"Proof of execution of document required by law to be attested.- If a
document is required by law to be attested, it shall not be used as
evidence until one attesting witness at least has been called for the
purpose of proving its execution, if there be an attesting witness alive, and
subject to the process of the Court and capable of giving evidence:

Provided that it shall not be necessary to call an attesting witness in proof

of the execution of any document, not being a will, which has been
registered in accordance with the provisions of the Indian Registration
Act, 1908 (XVI of 1908) unless its execution by the person by whom it
purports to have been executed is specifically denied."

-From the cursory look of the provisions of the said Section, the Court
can easily cull out the following aspects;

a)If a document is required by law to be attested, the same should be

proved by way of examining one attesting witness and otherwise the same
cannot be used as evidence.

b)If a document is registered under the provisions of the Indian

Registration Act, 1908 (XVI of 1908) and its execution is specifically
denied, one attesting witness must be examined.

-Section 63 of the Indian Succession Act (Act XXXIX of 1925) reads as

follows;

"Execution of unprivileged Wills.- Every testator, not being a soldier

employed in an expedition or engaged in actual warfare or an airman so
employed or engaged, or a mariner at sea, shall execute his Will
according to the following rules:-

17 See ruling to know more, ''Sugumal Duraisingh vs Annamani Ammal''

a)The testator shall sign or shall affix his mark to the Will, or it shall be
signed by some other person in his presence and by his direction.

(b)The signature or mark of the testator, or the signature of the person

signing for him, shall be so placed that it shall appear that it was intended
thereby to give effect to the writing as a Will.

c) The Will shall be attested by two or more witnesses, each of whom has
seen the testator sign or affix his mark to the Will or has been some other
person sign the Will, in the presence and by the direction of the testator,
or has received from the testator a personal acknowledgment of his
signature or mark, or of the signature of such other person; and each of
the witnesses shall sign the Will in the presence of the testator, but it shall
not be necessary that more than one witness be present at the same time,
and no particular form of attestation shall be necessary."

-The provision of the said Section can be vivisected as follows; a)In every
Will, the concerned testator should sign or affix his mark or it shall be
signed by some other person in his presence and that too by his direction.

b)The signature or mark of the testator or the signature of the person

signing for him should appear to give effect to the writing as a Will.

c)The Will concerned should be attested by two or more witnesses.

d)Each witness must see the sign or mark of the testator. e)Each witness
should sign in the presence of the testator. f)No particular form of
attestation is necessary.

-In Jaswant Kaur Vs. Amrit Kaur and others18 the Honourable Apex
Court held that the cases in which the execution of the Will is surrounded
by suspicious circumstances stand on a different footing. A shaky
signature, a feeble mind, an unfair and unjust disposition of property, the
propounder himself taking a leading part in the making of the will under
which he receives a substantial benefit and such other circumstances raise
suspicion about the execution of the Will. It is an acknowledged principle
of law that each decision must be applied according to the facts and
circumstances of the given case.
-In PPK Gopalan Nambiar Vs. Balakrishnan Nambiar and others 19,
the Honoruable Apex Court held that there must be real, germane and
valid suspicious features and not fantasy of the doubting mind.
-In Savithri and others Vs. Karthyayani Amma and others 20, the
Honourable Apex Court held that the natural heirs have either been
excluded or a lesser share has been given to them, by itself without
anything more, cannot be held to be suspicious circumstances.

18. 1977 (1) Supreme Court Cases 369

19. AIR 1995 Supreme Court 1852

20 2007 (11) Supreme Court Cases 621

-In R.Vasanthi Vs. Janaki Devi and others21, the Hon'ble Court held
that the registration of a Will may having regard to circumstances prove
its genuineness.
-In Rabindra Nath Mukherjee and another Vs. Panchanan Banerjee
(dead) by L.Rs and others22, the Honourable Apex Court held that
debarring natural heirs should not raise any suspicion with regard to
execution of the Will in dispute.
- In Sridevi & Ors vs Jayaraja Shetty & Ors on 28 January, 2005, in
was held that ''It is well settled proposition of law that mode of proving
the will does not differ from that of proving any other document except as
to the special requirement of attestation prescribed in the case of a will by
Section 63 of the Indian Succession Act, 1925. The onus to prove the will
is on the propounder and in the absence of suspicious circumstances
surrounding the execution of the will, proof of testamentary capacity and
proof of the signature of the testator, as required by law, need be
sufficient to discharge the onus. Where there are suspicious
circumstances, the onus would again be on the propounder to explain
them to the satisfaction of the court before the will can be accepted as
genuine. Proof in either case cannot be mathematically precise and certain
and should be one of satisfaction of a prudent mind in such matters. In
case the person contesting the will alleges undue influence, fraud or
coercion, the onus will be on him to prove the same. As to what are
suspicious circumstances have to be judged in the facts and circumstances
of each particular case. { For this see H. Venkatachala Iyengar v. B.N.
Thimmajamma & Ors. [(1959) Supp.1 SCR 426] and the subsequent
judgments Ramachandra Rambux v. Champabai & Ors.[(1964) 6 SCR
814]; Surendra Pal & Ors. v. Dr. (Mrs.) Saraswati Arora & Anr. [(1974) 2
SCC 600]; Smt. Jaswant Kaur v. Smt. Amrit Kaur & Ors. [(1977) 1 SCC
369]; and Meenakshiammal (Dead) thr. LRs. & Ors. v. Chandrasekaran &
Anr. [(2005) 1 SCC 280]''

-In Dorairaj vs Doraisamy's case, it was observed as follows: '' At this

juncture, my mind is reminiscent and redolent of the following decisions
relating to Will.
1. 1994 (5) SCC 135 (Bhagwan Kaur vs. Kartar Kaur and others

2. 2003 (12) SCC 35 (Bhagat Ram and another vs. Suresh and others)

3. 2006 (13) SCC 449 (B.Venkatamuni vs. C.J.Ayodhya Ram Singh and
others)

A perusal of the aforesaid judgments would cumulatively reveal that the

propounder of a Will has to prove the due execution of the Will by the
testator as per Section 63 (c) of the Indian Succession Act r/w Section 68
of the Indian Evidence Act. There could be no quarrel over the
proposition that a Will has to be proved strictly in accordance with those
aforesaid provisions of law.

21. 1999 (III) CTC 378

22. AIR 1995 Supreme Court 1684

(i) 2005(1) SCC 40 [Daulat Ram and other vs. Sodha and others]

(ii) 2005(1) SCC 280 [Meenakshiammal (Dead) through LRs. and others
vs. Chandrasekaran and another]

(iii) 2005(1) CTC 443 [Sridevi and others vs. Jayaraja Shetty and others]

(iv) 2005(1) L.W.455 [Janaki Devi vs. R.Vasanthi and 6 others]

(v) 1989 (1) L.W.396 [Nagarajan and 3 others vs. Annammal]

(vi) AIR 1982 SC 133 [Smt.Indu Bala Bose and others vs. Manindra
Chandra Bose and another]

(vii) AIR 1985 SC 500 [Satya Pal Gopal Das vs. Smt. Panchubala Dasi
and others]

(viii) AIR 1991 Bom. 148 [Asber Reuben Samson and others v. Eillah
Solomon and others]

(ix) 2008(2) MLJ 119 [M.Anandan and others vs. A.Dakshinamoorthy]

(x) 2006(4) L.W.942 [Gurdev Kaur & others vs. Kaki & others]

(xi) 2008(1) MLJ 1337 SC [Savithri and others vs. Karthyayani Amma
and others]

(xii) 2007(3) L.W.916 [1. J.Mathew (died) 2. J.Damien and 3 others vs.
Leela Joseph]

(xiii) (1990) 1 SCC 266 (Kalyan Singh, London Trained Cutter, Johri
Bazar, Jaipur vs. Smt.Chhoti and others)

(xiv) (1990) 3 SCC 364 (Ram Piari vs. Bhagwant and others)

(xv) (1962) II Madras Law Journal Reports (Supreme Court) 27 (Rani

Purnima Debi and another vs. Kumar Khagendra Narayan Deb and
another)

(xvi) 1976 STPL (LE) 8415 SC (Smt.Jaswant Kaur vs. Smt.Amrit Kaur
and others)

(xvii) 1984 (II) MLJ 133 (M.Krishnan vs. Ramaswami and others)

(xviii) 2004 (1) CTC 619 (SC) (P.S.Sairam and another vs. P.S.Rama Rao
Pisey and others)

(xix) (2008) 8 MLJ 647 (Thayammal vs. Ponnusamy and another) Among
the aforesaid decisions, the decision of this Court (Madras High Court)
reported in 2001(3)CTC 283 [Corra Vedachalam Chetty and another vs.
G.Jankiraman] is on the point that the Court while analysing the Will is
acting as a Court of conscience. An excerpt from the above said decision
would run thus: "26. This need for caution, cannot be exploited by
unscrupulous caveators who choose to cull out imaginary suspisions with
a view to prevent the legatees under the Will from claiming the benefit
thereunder and to render the last Will of the deceased wholly ineffective.
In this context, the conduct of the persons who raise the alleged ground
for suspision is also to be looked at, to know as to how credible are the
grounds for suspisions sought to be raised by such persons. In this case,
the suspicion is sought to be raised by a person who is keenly interested
in making the Will ineffective and whose conduct is far from one which
would inspire confidence in truthfulness of his statements." As such, the
cited precedent would also highlight that the Court should not attach
undue importance to imaginary suspicions. All these aforesaid decisions
are on the point that the Court should not at the time of analysing the
validity of the Will proceed on the hypothesis that the Will is an invalid
one.

-In Janki Narayan Bhoir vs Narayan Namdeo Kadam on 17

December, 2002, it was held as infra: '' We think it appropriate to look at
the relevant provisions, namely, Section 63 of the Indian Succession Act,
1925 and Sections 68 and 71 of the Indian Evidence Act, 1872 which
read: Section 63 of the Succession Act

"63. Execution of unprivileged wills.- Every testator, not being a soldier

employed in an expedition or engaged in actual warfare, or an airman so
employed or engaged, or a mariner at sea, shall execute his will according
to the following rules:-

(a) .....

(b) .....

(c) The will shall be attested by two or more witnesses, each of whom has
seen the testator sign or affix his mark to the will or has seen some other
person sign the will, in the presence and by the direction of the testator, or
has received from the testator a personal acknowledgement of his
signature or mark, or of the signature of such other person; and each of
the witnesses shall sign the will in the presence of the testator, but it shall
not be necessary that more than one witness be present at the same time,
and no particular form of attestation shall be necessary."

Section 68 of the Evidence Act

"68. Proof of execution of document required by law to be attested.- If a

document is required by law to be attested, it shall not be used as
evidence until one attesting witness at least has been called for the
purpose of proving it's execution, if there be an attesting witness alive,
and subject to the process of the Court and capable of giving evidence:

Provided..."

Section 71 of the Evidence Act

"71. Proof when attesting witness denies the execution.- If the attesting
witness denies or does not recollect the execution of the document, its
execution may be proved by other evidence."

To say will has been duly executed the requirements 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 from 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 witnesses has to sign the Will in the presence of the testator. It is thus
clear that one of the requirements of due execution of will is its attestation
by two or more witnesses which is mandatory.''

-In Joseph Antony Lazarus (dead) by LRs. Vs. A.J.Francis23, the

Honourable Apex Court held that non-mention in the Will about other
sons of testatrix while bequeathing the entire property to two sons alone
would lead a genuine suspicious circumstances and further non-
examination of Advocate who drafted the Will and Sub-Register before
whom the Will was presented for registration also leads to suspicious
circumstances.
-In Aplone D' Souza VS. John D'Souza24, wherein the Honourable Apex
Court held that no evidence to show that the contents of the Will have
been read over and explained to the testatrix which leads to suspicious
circumstances.
In Adivekka and others Vs. Hanamavva Kom Venkatesh (dead) by
LRs. and another25, The Honourable Apex Court held that non-
examination of the propounder also creates suspicious circumstances and
due to that adverse inference can be drawn.
In Gurdial Kaur and others Vs. Katrar Kaur and others 26, the
Honourable Apex Court has held that the scribe of the Will in dispute has
deposed that he has not known the executant of the Will and some of the
natural heirs have been disinherited in the Will without any reason and
therefore, suspicious circumstances have arisen.
In Rabi Vs. Jasu Leela27, the Division Bench of this Court has held as
follows;
"Under Section 32 of the Indian Succession Act, the property of an
intestate devolves upon the wife or husband, or upon those who are of the
kindred of the deceased, in the order and according to the rules
thereinafter contained in the chapter. As per Section 47 where the
intestate has left neither lineal descendant nor father nor mother, the

23. 2006 (9) Supreme Court Cases 515

24. 2007 (7) Supreme Court Cases 225

25. 2007 (7) Supreme Court Cases 91

26.1998 (4) Supreme Court Cases 384

27. 2000 (3) Law Weekly 409

property shall be divided equally between his brothers and sisters and the
child or children of such of them as many have died before him. Here the
parties are Christians. Under the Hindu Law, an adopted son is entitled to
inherit ancestral property. Such adoptions are governed by either
customary law or by the provision contained in the Hindu Adoptions and
Maintenance Act, 1956. Under Hindu Succession Act, an adopted son is
treated as natural son for the purpose of succession of ancestral property
whereas under Indian Succession Act, an adopted son is not treated on par
with natural son and he will not inherit the property of the parents by
interestate succession."

In Vrindavanibai Sambhaji Mane Vs. Ramachandra Vithal

Ganeshkar and others28, the Honourable Apex Court held that as
follows;
"There is also a large body of case law about what are suspicious
circumstances surrounding the execution of a Will which require the
propounder to explain them to the satisfaction of the Court before the
Will can be accepted as genuine. A Will has to be proved like any other
document except for the fact that it has to be proved after the death of the
testator. Hence, the person executing the document is not there to give
testimony. The propounder, in the absence of any suspicious
circumstances surrounding the execution of the Will, is required to prove
the testamentary capacity and the signature of the testator. Some of the
suspicious circumstances of which the Court has taken note are (1) The
propounder taking a prominent part in the execution of a Will which
confers substantial benefits on him; (2)Shaky signature; (3)A feeble mind
which is likely to be influenced; (4)Unfair and unjust disposal of
property. Suffice it to say that no such circumstances are present here."

In Apoline D' Souza v. John D' Souza [(2007) 7 SCC 225]29, the
Hon'ble Supreme Court held that the question as to whether due
attestation has been established or not will depend on the fact situation
obtaining in each case. Therein, it was held :
" Section 68 of the Evidence Act, 1872 provides for the mode and manner
in which execution of the will is to be proved. Proof of attestation of the
will is a mandatory requirement. Attestation is sought to be proved by PW
2 only. Both the daughters of the testatrix were nuns. No property,
therefore, could be bequeathed in their favour. In fact one of them had
expired long back. Relation of the testatrix with the respondent admittedly
was very cordial. The appellant before us has not been able to prove that
she had been staying with the testatrix since 1986 and only on that
account she was made a beneficiary thereof. The will was full of
suspicious circumstances. PW 2 categorically stated that the will was
drafted before her coming to the residence of the testatrix and she had
only proved her signature as a witness to the execution of the will but the
document was a handwritten one. The original will is typed in Kannada,
although the blanks were filled up with English letters. There is no
evidence to show that the contents of the will were read over and
explained to the testatrix. PW 2 was not known to her. Why was she
called and who called her to attest the will is shrouded in mystery. Her
evidence is not at all satisfactory in regard to the proper frame of mind of

28. AIR 1995 Supreme Court 2086

29 It was observed in '' Babu Singh & Ors vs Ram Sahai @ Ram Singh on 30 April, 2008 ''
the testatrix. There were several cuttings and overwritings also in the
will." In the aforementioned situation, the Will was said to have not been
proved.

-"In P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar it has

been held that it is the duty of the propounder of the Will to remove all
the suspected features, but there must be real, germane and valid
suspicious features and not fantasy of the doubting mind."

-Now, with regard to the proof of the will, it is apposite to quote the
observations of Gajendragadkar, J. in AIR 1959 SC 44330 : "The party
propounding a will or otherwise making a claim under a will is no doubt
seeking to prove a document and, in deciding how it is to be proved,
reference must inevitably be made to the statutory provisions which
govern the proof of documents. Sections 67 and 68 of the Evidence Act
are relevant for this purpose. Under Section 67, if a document is alleged
to be signed by any person, the signature of the said person must be
proved to be is his handwriting, and for proving such a handwriting under
Sections 45 and 47 of the Act, the opinion of experts and of persons
acquainted with the handwriting of the person concerned are made
relevant. Section 68 deals with the proof of the execution of the document
required by law to be attested; and it provides that such a document shall
not be used as evidence untill one attesting witness at least has been
called for the purpose of proving its execution. These provisions prescribe
the requirements and the nature of proof which must be satisfied by the
party who relies on a document in a court of law. Similarly, Sections 59
and 63 of the Indian Succession Act are also relevant. Thus the question
as to whether the will set up by the propounder is proved to be the last
will of the testator has to be decided in the light of these provisions. It
would prima facie be true to say that the will has to be proved like any
other document except as to the special requirements of attestation
prescribed by Section 63 of the Indian Succession Act. As in the case of
proof of other documents so in the case of proof of wills it would be idle
to expect proof with mathematical certainty. The test to be applied would
be the usual test of the satisfaction of the prudent mind in such matters".

-In AIR 1949 Bom 266, Vishni Ram-krishna v. Nathu Vithal

considering the requirements under Section 68 of the Evidence Act, a
Hon'ble Division Bench of the Bombay High Court observed that
although the Indian Succession Act requires that a will has to be attested
by two witnesses. Section 68 of the Evidence Act permits the execution of
the will to be proved by only one attesting witness being called. But it is
important to note that at least one witness should be in a position to prove
the execution of the will. If that attesting witness can prove the execution
of the will, the law dispenses with the evidence of the other attesting
witness. But if that one attesting witness cannot prove the execution of the
will, then his evidence has to be supplemented by the other attesting
witness being called to prove the execution. After stating thus the court
observed "that in this case the one attesting witness who has been called,
and he is the only attesting witness. Dr. Pillay, does not prove the
execution of the will. The execution of the will does not merely mean the
signing of it by the testatrix or putting her thumb impression on the
30 It was observed in K.M. Varghese And Ors. vs K.M. Oommen And Ors. On 20/7/1993
document, but it means all the formalities required and laid down by
Section 63, Succession Act, and, as we have already pointed out, Dr.
Pillay is not in a position to prove the attestation of the will by the second
witness, and, therefore, the evidence of Dr. Pillay falls short of the
mandatory requirements of Section 68, Evidence Act."

-In AIR 1974 AP 13 K. Nookaraju v. P. Venkatarao a learned single

Judge of A.P. High Court held that it is clearfrom Section 68 of the
Evidence Act read with Section 63(c) of the Indian Succession Act, that it
is sufficient even if one attestor is examined but that attestor should speak
not only about the testator's signature or affixing his mark to the will or
somebody else signing it in his presence and by his direction or that he
had attested the will after taking acknowledgment from the testator of the
signature or mark, but he must also speak that each of the witnesses had
signed the will in the presence of the testator."
-In the case reported in AIR 1977 SC 63 (Beni Chand v. Kamla
Kunwar) it was held that as D and two others had signed below the
thumb impression of the testatrix and D was examined and his evidence
showed that he and the two others saw the testatrix putting her thumb
mark in the will by way of execution and that they all signed the will in
token of attestation in the presence of the testatrix after she had affixed
her thumb mark in the will, the execution was held proved in terms of
Section 63 of the Indian Succession Act read with Section 68 of the
Evidence Act.

-In AIR 1974 Andh Pra 13 (K. Nookaraju v, P, Venkatarao) it has been
held that (at p. 15)31," But, proof of execution by the testator alone is not
sufficient. A will is a document which is required to be attested by at least
two witnesses. Thai is clear from Clause (c) of Section 63 of the Indian
Succession Act. Section 68 of the Evidence Act forbids the using of a
document which is required by law to be attested as evidence until at least
one attesting witness has been called for the purpose of proving its
execution, if there be an attesting witness alive. What is required to be
proved by calling at least one attesting witness is the execution of the
document. By execution of a will is meant the whole process prescribed
under Section 63 of the Indian Succession Act. Indeed its marginal note
reads execution of unprivileged wills. Such execution includes not only
the signing or affixing the mark of the testator to the will or by somebody
else in his presence and by his direction but also attestation by two
witnesses, Reading Section 63 it is quite plain that attestation as
postulated by Clause (c) is a part of execution of a will. Such attestation
has to be by two or more witnesses. Each of them must have either seen
the testator sign or affix his mark to the will or has seen some other
person sign the will in the presence and by the direction of the testator or
has received from the testator a personal acknowledgment of his signature
or mark or of the signature of such other person. It is also necessary that
each of the witnesses shall sign the will in the presence of the testator.
However, it is not incumbent that more than one witness be present at the
same time. Nor, is there any particular form of: attestation prescribed."

31 . it was observed in '' T. Venkat Sitaram Rao And Anr. vs T. Kamakshiamma And Ors. On
20/12/1977; AIR 1978 Ori 145''
-In (Venkatachala v. Thimmajamma) the Hon'ble Supreme Court held-
"As in the case of proof of other documents so in the case of proof of will
it would be idle to expect proof with mathematical certainty. The test to
be applied would be the usual test of the satisfaction of the prudent mind
in such matters.

However, there is one important feature which distinguishes will from

other documents. Unlike other documents the will speaks from the death
of the testator, and so, when it is propounded or produced before a Court,
the testator who has already departed the world cannot say whether it is
his will or not; and this aspect naturally introduces and element of
solemnity in the decision of the question as to whether the document
propounded is proved to be the last will and testament of the departed
testator."

-In Shashi Kumar Banerjee v. Subodh Kumar Banerjee the Hon'ble

Supreme Court held-

"The mode of proving a Will does not ordinarily differ from that of
proving any other document except as to the special requirement of
attestation prescribed in the case of a Will by S. 63 of the Indian
Succession Act."

-In Abdul Jabbar Sahib v. Venkata Sastril the Hon'ble Supreme Court
while considering the meaning of the word "attestation" in Section 3 of
Transfer of Property Act held- "To attest is to bear witness to a fact.
Briefly put, the essential conditions of a valid attestation under Section 3
are : (1) two or more witnesses have seen the executant sign the
instrument or have received from him a personal acknowledgment of his
signature; (2) with a view to attest or to bear witness to this fact each of
them has signed the instrument in the presence of the executant. It is
essential that the witness should have put his signature animo attestandi,
that is, for the purpose of attesting that he has seen the executant sign or
has received from him" a personal acknowledgment of his signature. If a
person puts his signature on the document for some other purpose, e.g., to
certify that he is a scribe or an identifier or a registering officer, he is not
an attesting witness."

- in Venugopal Reddiar v. Gopalsami Reddiar (1988) 1 Mad LJ 440 at

pages 442 and 44332 held- "A reading of Section 63(c) of the Indian
Succession Act with Section 68 of the Evidence Act establishes that a
person propounding a will has to prove the will was duly and validly
executed and that should be done by not merely establishing that the
signature on the will was that of the testator, but also that the attestations
were made in the manner contemplated by Clause (c) of Section 63 of the
Indian Succession Act. It is true that it is not necessary under Section 68
of the Evidence Act to examine both or all the attesting witnesses.
However, it does not follow that if one attestor proves that the testator had
acknowledged his signature to him it is not necessary that the
acknowledgement by the testator before the other attesting witness need
be proved. In cases where two attesting witnesses had signed in the
presence of each other, it is not necessary to examine both to prove that
they had received the acknowledgement from the testator, but if the

32. it was observed in AIR 1999 Mad 149 ; A. Ramesh vs A. Manohar Prasad And Ors.
attestations are not made at the same time, it is necessary to prove that the
attestators had signed so on the acknowledgement of the testator."

-In Kashibai v. Parwatibai . Their Lordships of the Supreme Court

held-"A reading of Section 68 will show that 'attestation' and 'execution'
are two different acts one following the other. There can be no valid
execution of a document which under the law is required to be attested
without the proof of its due attestation and if due attestation is also not
proved, the facts of execution is of no avail .....Law does not emphasise
that the witness must use the language of the section to prove the requisite
merits thereof but it is also not permissible to assume something which is
required by law to be specifically proved."

-In Indu Bala Bose v. Manindra Chandra Bose the Hon'ble Apex Court
explained the meaning of the word "suspicious" in the following words-

"Needless to say that any and every circumstances is not a "suspicious"

circumstance. A circumstance would be "suspicious" when it is not
normal or is not normally expected in a normal situation or is not
expected of a normal person."

-In Smt. Sushila Devi v. Pandit Krishna Kumar Missir their Lordships
held-

"Prima facie, the circumstance that no bequest was made to the appellant
by the testator would make the Will appear unnatural but if the execution
of the Will is satisfactorily proved, the fact that the testator had not
bequeathed any property to one of his children cannot make the Will
invalid."

-In Gopalan Nambiar v. Balakrishnan Nambiar the whole of estate

was given to a son in execution of the daughter and the Supreme Court
held that itself is not sufficient to generate suspicion regarding the Will.

-The Privy Council in Suna Ana Arunachellam Chetty v. S.R.M.

Ramaswami Chetty (1916) 35 Ind Cas 1 : (AIR 1916 PC 113)
held-"Once the man's mind is free and clear and is capable of disposing of
his property, the way in which it is to be disposed of rests with him, and it
is not for any Court to try and discover whether a Will could not have
been made more consonant either with reasons or with justice."; Similar
view was taken by the Supreme Court in (Ishwardev Narain Singh v.
Kamta Devi), the Supreme Court observed :--"The Court of probate is
only concerned with the question as to whether the document put forward
as the last Will and the testament of a deceased person was duly executed
and attested in accordance with law and whether at the time of such
execution the testator had sound disposing mind. The question whether a
particular bequest is good or bad is not within the purview of the Probate
Court."

-The Privy Counsel in Judah v. Isolyne Shrojbashini Rose, AIR 1945

PC 174 held -"It was all along a common ground that she was unwell
when she executed the will but that is a long way from saying that she had
no testamentary capacity."
-The Privy Counsel in (Judah v. Isolyne Shrojbashini Rose), AIR
1945 PC 174 held -"It was all along a common ground that she was
unwell when she executed the will but that is a long way from saying that
she had no testamentary capacity."

-The Hon'ble Court in Lakshmi Ammal v. Lakshmanan (1988) 2 Mad

LJ page 469 at page 476 held -"A will is a document required by law to
be attested and under Section 68 of the Indian Evidence Act it shall not be
used as evidence until one attesting witness at least has been called for the
purpose of proving its execution, if there be an attesting witness alive and
subject to the process of the Court and capable of giving evidence."

-In Girja Datt Singh v. Gangotri Datt Singh, it was held that in order to
prove the due attestation of the Will, the pro-pounder of the Will, has to
prove that the two witnesses saw testator sign the will and they
themselves signed the same in the presence of the testator.

-While deciding the attestation of the Will, the Hon'ble Supreme Court in
Naresh Charan Das Gupta v. Paresh Charan Das Gupta, -"It cannot
be laid down as a matter of law that because the witnesses did not state in
examination-in-chief that they signed the will in the presence of the
testator, there was no due attestation. It will depend on the circumstances
elicited in evidence whether the attesting witnesses signed in the presence
of the testator. This is a pure question of fact depending on appreciation
of evidence."

Other relevant cases as to ''Will'':

1. J. Naval Kishore vs D. Swarna Bhadran, J. Parasmul, P. ... on 3 October,
2007 33
2. Kamal Narayan Saini vs Smt. Sushil Bai on 4 May, 2007
3. Kasinath Patel vs Radha Bai And Ors. on 20 April, 2005 34
4. Smt Baby Dey vs. Shri Birendra Kr. Dutta & Anr .. .. on 15 June, 2009

5. Vallurupalli Devi Ravindra ... vs Vallurupalli Rukmini Bayamma And ... on

22 June, 2006
6. L. Bakthavatsalam's case. (2007)
7. Arvind S/O Bhaurao ... vs Smt. Indirabai W/O Balkrishna ... on 24 April,
2008
8. Benga Behera & Anr vs Braja Kishore Nanda & Ors on 15 May, 2007
9. Kartar Kaur vs Kewal Singh And Others on 16 September, 2009

10.Sugumal Duraisingh vs Annamani Ammal, on 14 August, 2009

11. M. Kuppusamy Naicker vs M. Mani on 2 September, 2009

12. Muniammal vs Annadurai (Deceased) on 23 July, 2008
13. Thayammal vs Ponnusamy on 24 July, 2008
14. R.Suburathinam's case , (2009)
15. Senniappa Chettiar vs The Commissioner, Hindu on 7 April, 2005
16. Shri Harish Chander Kawatra vs State And Others on 18 May, 2009
17. K. Chandrasekara Rao, Through ... vs G. Masilamani And Ors. on 26 April,
2005
18 Dorairaj vs Doraisamy.. on 12 August, 2009

33. 2008 (1) CTC 97

34. 2005 (4) ALD 859
In view of the above, we can understand that how a Will should be
executed. I hope that this article is useful to the judicial officiers,
lawyers, law students and others who seek information regarding
execution of Will.

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