Saji Koduvath, Advocate, Kottayam.

Abstract

Section 67 of The Indian Succession Act, 1925, reads as under:

• 67. Effect of gift to attesting witness.—A will shall not be deemed to be insufficiently attested by reason of any benefit thereby given either by way of bequest or by way of appointment to any person attesting it, or to his or her wife or husband; but the bequest or appointment shall be void so far as concerns the person so attesting, or the wife or husband of such person, or any person claiming under either of them.
• Explanation – A legatee under a will does not lose his legacy by attesting a codicil which confirms the will.

Attesting Witness, if Beneficiary, will not Get Benefit under the Will

In Lisamma v. Saramma (A. Hariprasad, J.), ILR 2017-3 Ker 133; 2017-3 KHC 27; 2017-2 KLT 1084, explained Sec. 67 as under:

• “On a careful reading of the Section, following matters will be clear:
• .(i) A Will shall not be deemed to be insufficiently attested by reason of any benefit given to any person attesting it.
• (ii) The benefit can either be by way of a bequest or by way of an appointment (like executor, administrator, etc.)
• (iii) No deemed insufficiency in attestation, even if such a benefit is given to any person attesting it or to his or her wife or husband, as the case may be.
• (iv) However, the bequest or appointment shall be void so far as it concerns the person so attesting, or the wife or husband of the attestor, as the case may be, or any person claiming under either of them.
• 9. The sum and substance of the Section is that merely for the reason that a beneficiary has attested a Will, the document will not become void ipso facto. If any benefit is given to the attestor by way of a bequest or by way of an appointment, he will not get any right as that bequest or appointment shall be void insofar as he is concerned. Not only that the attestor’s wife or husband, as the case may be, and persons claiming under either of them are also precluded from claiming any benefit or appointment, as any such benefit or appointment conferred on them by the Will shall be void.”

A beneficiary can be a witness to the Hindu’s Will

Sec. 57 says that provisions of the Succession Act as to Wills apply to Wills of Hindus, Buddhists, Sikhs or Jainas (after 1^st January, 1927) –

• but, it is  limited to provisions listed in Schedule III of the Act; and
• Schedule III does not enumerate Sec. 67.

Thereby, a beneficiary can be a witness to Hindu’s Will; and he/she will not lose benefit, if any, under the Will.

It is delineated in Lisamma v. Saramma, as under:

• “10. It is interesting to note that the restrictions in Section 67 of the Act may not be applicable to Hindus. It will be amply clear on a conjoint reading of Section 57 and Schedule III of the Act.”

Section 57 reads as under:

• 57. Application of certain provisions of Part to a class of Wills made by Hindus, etc.—The provisions of this Part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply—
• (a)to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of September, 1870, within the territories which at the said date were subject to the Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and
• (b)to all such Wills and codicils made outside those territories and limits so far as relates to immoveable property situate within those territories or limits; and
• (c)to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of January, 1927, to which those provisions are not applied by clauses (a) and (b):
• Provided that marriage shall not revoke any such Will or codicil.

Section 58 reads as under:

• “58. General application of Part.—(1) The provisions of this Part shall not apply to testamentary succession to the property of any Muhammadan nor, save as provided by section 57, to testamentary succession to the property of any Hindu, Buddhist, Sikh or Jaina; nor shall they apply to any Will made before the first day of January, 1866.
•  (2) Save as provided in sub-section (1) or by any other law for the time being in force, the provisions of this Part shall constitute the law of India applicable to all cases of testamentary succession.”

Relevant portion of SCHEDULE III reads as under:

“Provisions of Part VI Applicable to Certain Wills and Codicils Described in Section 57 –

Sections 59, 61, 62, 63, 64, 68, 70, 71, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 95, 96, 98, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189 and 190.”

Read similar Blogs:

• Witnesses to the Will Need Not See the Execution of the Will
• Interpretation of Wills
• Interpretation of Inconsistent Clauses in a Will
• Will – Probate and Letters of Administration
• Executors of Will – Duties & their Removal
• How to Prove a Will, in Court?Is Presumption enough to Prove a Registered Will?
• How to Write a Will? Requirements of a Valid Will
• When Execution of a Will is ‘Admitted’ by the Opposite Side, Should it be ‘Proved’?
• A Witness to Hindu-Will will not Lose Benefit