1998 (4) TMI 572 - SC - Indian Laws

Summary

Issues Involved:
1. Genuineness of the Will executed by Velugondaiah.
2. Validity of attestation by witnesses.
3. Compliance with the Indian Succession Act and Indian Evidence Act.

Issue-wise Detailed Analysis:

1. Genuineness of the Will Executed by Velugondaiah:
The appellant claimed that Velugondaiah executed a Will on 2.7.45 bequeathing his properties in a particular manner. The genuineness of the Will was challenged by the respondent and Punnamma. The Subordinate Judge and the District Judge both held that the Will was proved by the appellant to be true and valid. However, the High Court, upon reviewing the evidence, held that the Will was not proved as required by law and allowed the second appeals, setting aside the judgments and decrees passed by the lower courts.

2. Validity of Attestation by Witnesses:
The Will purported to have been attested by five persons, but only two had signed, while the other three had not affixed their thumb impressions or made any mark. One of the three, Kondaiah, was examined as DW 2. He admitted that he had not affixed his thumb impression or made any mark on the Will. The High Court held that he was not an attestor in the eye of law and his evidence could not prove the Will. The court emphasized that for valid attestation, the witness must sign or affix a mark themselves, and cannot delegate this to another person.

3. Compliance with the Indian Succession Act and Indian Evidence Act:
Section 68 of the Indian Evidence Act requires the calling of at least one attesting witness to prove the execution of a Will. Section 63 of the Indian Succession Act prescribes that the Will must be attested by two or more witnesses, each of whom must sign the Will in the presence of the testator. The court noted that while the testator may direct another person to sign on their behalf, this provision does not extend to attestors. The court concluded that the attesting witness must either sign or affix their thumb impression themselves, and cannot delegate this function to another.

Conclusion:
The Supreme Court upheld the High Court's decision, agreeing that the Will was not proved as required by law. The court reiterated that for valid attestation under Section 63 of the Indian Succession Act, it is necessary for the attesting witness to sign or affix their thumb impression themselves. The appeal was dismissed, and each party was directed to bear their respective costs.