SUPREME COURT REITERATES THE PRINCIPLES OF VALID EXECUTION OF WILL

The Supreme Court has in a recent case of V. Kalyanaswamy (D) by Lrs and Another vs L. Bakthavatsalam (D) by Lrs. And Others passed a Judgment dated 17-07-2020 and held that the Will dated 10-05-1955 (#Will) executed by Late Mr Rangaswami Nadu (#Testator) was valid and lawful in nature.

In this case, Late Mr Rangaswami Nadu along with his brother, Late Mr Lakshmiah Naidu had constituted a Joint Hindu Family business. But thereafter, owing to an illness, he executed the Will in which he bequeathed his share in the #JointHinduFamily property and self-acquired #properties in favor of his wife.

Later, upon the death of Mr Rangaswami Nadu, his wife filed civil suit in Civil Court of #Coimbatore for declaration of title to such properties and recovery of mesne profits from defendants, who were the sons of Late Mr Lakshmiah Naidu and were in possession of such properties. The Court allowed the same.

Thereafter, a string of cases were filed in the Civil Courts of Coimbatore by the nephews of Late Mr Rangaswami Nadu, thereby claiming share in the bequeathed property on the ground that they were a part of the Joint Hindu Family property and that they were rightfully entitled to a share in such properties. But each time, the parties entered into a compromise and in accordance with which, all the parties received some share in the properties. But one, Mr. V. Kalyanaswamy, another nephew of the deceased Testator, i.e. the Appellant herein, later challenged the validity of the Will on the ground that the Will was executed under coercion, undue influence or fraud exercised by the Respondents and further, that any will executed by a coparcener of his undivided interest in the Joint Hindu Family Property is illegal and invalid as per the Hindu Law of Succession.

The Supreme Court made the following observations about validity of the Will in this case:

(1)        The Will in this case was an unprivileged will under Section 63 of the Indian Succession Act 1925. As per the said provision, the testator has to sign the will in presence of two or more witnesses, and the witnesses shall attest the said will in the presence of the testator.

(Clarification for Readers-Section 63 deals with proving a document by way of secondary evidence. For instance (a) a photograph of an original is secondary evidence of its contents, if it is proved that the thing photographed was the original. Or (b)A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original.)

(2)        Further, in order to test the genuineness of the testamentary document, i.e. a will, as per the terms of Section 68 of the Indian Evidence Act 1872, one of the attesting witnesses named in the will has to prove that the will had been duly executed by the testator in presence of at least two witnesses and that the other witnesses had also duly attested the will.

(Clarification for Readers-Section 68. Proof of execution of document -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)

(3) In the event that the attesting #witnesses have died or are unable to physically come to court or they have become insane, etc, in such circumstances, the will may be proved as per Section 69 of the Indian Evidence Act 1872, one has to prove that the attestation of at least one attesting witness and signature of the Testator are in their respective handwritings.

(Clarification for readers Sec. 69 Proof where no attesting witness found. If no attesting witness can be found, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.)

(4)        But where the attesting witness denies or does not recollect #execution of the will, then Section 71 of the Indian Evidence Act 1872 provides thatin such cases, the will may be proved by producing some other evidence.)

(Clarification for Readers Section 71.  If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.

(5)        But in the present case, the Appellants failed to prove that the Will was made out of coercion, fraud or undue influence.

Thus, the Apex Court upheld the validity of the Will on the ground that firstly, the deceased Testator had clearly mentioned in his Will, all the details of the properties that would be bequeathed to his wife and the manner in which she would have to use the said properties. Secondly, that prior to the passage of Hindu Succession Act 1956, a #Hindu was allowed to bequeath his interest in the joint family property to another person during the period when the joint family status was intact. Therefore, the Supreme Court dismissed the Appeal filed by the Appellants.

SUSHILA RAM

Chief Consultant

The Indian Lawyer

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