It is not necessary – Attesting witnesses should see the execution of the Will.

Taken from – How to Prove a Will, in Court?

Jojy George & Saji Koduvath.

Will – Attestation

The mode of attestation of Wills is given in Sec. 63(c) of the Indian Succession Act, 1925.

Sec. 63(c) reads as under:

• “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 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.”

Attestation – Not necessary, Witnesses must be present at the same time

The attestation can be –

• either by
• each of the witnesses who has seen the testator sign or affix his mark
• or by
• the witnesses who “has received from the testator a personal acknowledgment of his signature or mark”.

That is, both the attesting witnesses need not be present at the time of execution of the Will. And, one witness need not see the other attests the Will.

It is fortified by the last limb of Sec. 63(c) which reads as under:

• “but it shall not be necessary that more than one witness be present at the same time….”

If the Will, already executed by the testator (author of the will), is produced before one witness and the testator gives “a personal acknowledgment of his signature or mark” (put upon the will) and on that basis the witness attests the Will; and then the testator approaches the second witness and gets the Will attested (by the second witness also) in the same manner, such attestations are also valid and sufficient under Sec. 63(c).

“Personal Acknowledgment of his Signature or Mark”

In Ganesan v. Kalanjiam, (2020)11 SCC 715, the Supreme Court of India (Ashok Bhushan, Naveen Sinha, JJ.) explained as under:

• “The acknowledgement may assume the form of express words or conduct or both, provided they unequivocally prove an acknowledgement on part of the testator. Where a testator asks a person to attest his Will, it is a reasonable inference that he was admitting that the Will had been executed by him.
• “There is no express prescription in the statute that the testator must necessarily sign the will in presence of the attesting witnesses only or that the two attesting witnesses must put their signatures on the will simultaneously at the same time in presence of each other and the testator.”

We can find the same view (that in Ganesan v. Kalanjiam) in the following decisions:

• Ganshamdoss Narayandoss v. Saraswathi Bai, AIR 1925 Mad 861,
• Ganshamadoss Narayandoss v. Gulab Bi Bai, AIR 1927 Mad 1054 ,
• Pachigolla Venkatara v. Palepu Venkateswararao, AIR 1956 AP 1,
• Bishan Devi Khanna v. Pirthi Singh Dhillon, AIR  1963 P&H 66,
• Chhanga Singh Indar Singh v. Dharam Singh, AIR 1965 Punj 204,
• Damodhar Bordoloi v. Mrinalini Devi Trust Board, AIR 1999 Gau 53,
• S. Jagadish v. Dr. S. Kumaraswamy, ILR 2008 Kar 87.

A Large Number of Decisions do not lay down Correct Law

It is clear that the view taken in a large number of decisions do not lay down correct law when they state as under (ignoring the words in Sec. 63 Succession Act, “or has received from the testator a personal acknowledgment of his signature or mark”) as held in Benga Behera v. Braja Kishore Nanda, 2007-9 SCC 728) –

• “A Will is required to be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will.”

In Vikrant Kapila Vs. Pankaja Panda, 2023-6 ALT 37 (SC), it is observed as under:

• “26. …. It is useful to refer to Gopal Swaroop v. Krishna Murari Mangal, (2010) 14 SCC 266, wherein this Court held that as per the provisions of Sec. 63 of the Indian Succession Act, 1925, the due execution of the Will consists of the following:
• i. The testator should sign or affix his mark to the Will;
• ii. The testator’s signature or the mark of the testator should be so placed that it should appear that it was intended to give effect to the writing as a Will;
• iii. Two or more witnesses should attest the Will;
• iv. Each of the said witnesses must have seen the testator signing or affixing his mark to the Will, and each of them should sign the Will in the presence of the testator.

In Savithri v. Karthyayani Amma, (2007) 11 SCC 621, Supreme Court has held as under:

• “17. … A will like any other document is to be proved in terms of the provisions of the Succession Act and the Evidence Act. The onus of proving the will is on the propounder. The testamentary capacity of the testator must also be established. Execution of the will by the testator has to be proved. At least one attesting witness is required to be examined for the purpose of proving the execution of the will. It is required to be shown that the will has been signed by the testator with his free will and that at the relevant time he was in sound disposing state of mind and understood the nature and effect of the disposition. It is also required to be established that he has signed the will in the presence of two witnesses who attested his signature in his presence or in the presence of each other. Only when there exists suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the court before it can be accepted as genuine.”(Quoted in:  Vikrant Kapila Vs. Pankaja Panda, 2023-6 ALT 37 (SC).

‘Attestation’ as defined in Sec. 3 of the T.P. Act

The word ‘Attestation’ is defined in Sec. 3 of the Transfer of Property Act. It is in pari materia to Succession Act. Sec. 3, TP Act reads as under:

• Section 3 – Interpretation-clause – In this Act, unless there is something repugnant in the subject or context-
• “attested”, in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom
  • has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant,
  • or
  • has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person,
• and each of whom has signed the instrument in the presence of the executant;
  • but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary.”

Onus on propounder discharged when essential facts just indicated

Our Apex Court in H. Venkatachala Iyengar v. B. N. Thimmajamma, AIR 1959 SC 443, emphasided that the onus on the propounder of a Will could be taken to be discharged ‘on proof of the essential facts just indicated’.

See – How to Write a Will? Requirements of a Valid Will