Five steps inquiry for inferring that there was valid execution of will

 This court in the case of Sri J.T.Surappa and another -v- Sri Satchidhanandendra Sarawathi Swamiji Public Charitabel Trust and Others reported in ILR 2008 KAR 2115 has laid down the five steps to be considered to prove the Will, viz., under the Indian Succession Act, 1925, the Will to be valid, should be reduced into writing, signed by the testator and shall be attested by two or more witnesses and atleast one attesting witnesses shall be examined. If these legal requirements are not found, in the eye of law there is no Will at all. The second step is that when the legal heirs are disinherited, the court has to scrutinize the evidence with greater degree of care than usual, the third step would be to find out whether the testator was in a sound state of mind at the time of executing the Will. Fourth step is whether there exist any suspicious circumstances surrounding the execution of the Will. Fifth step is to consider whether the Will that is executed is in accordance with Section 63 of the Indian Succession Act, r/w Section 68 of Evidence Act. In the light of the said judgment, examination of the attesting witness is sine qua non to prove the Will.

12. As could be seen from the certified copy of the registered Will, neither the signature of the testator can be verified nor the signature of the attesting witnesses can be examined. Thus it would be a futile exercise to accord permission for leading secondary evidence on the basis of certified copy of the Will.

13. It is well settled law that the entries made in the revenue records would not confer any title and right to the parties. Any entry mutated in the revenue register also would not come to the assistance of the petitioner herein unless the original Will is produced before the Court.

14. Yet another aspect to be considered is that the Will is not a public document under Section 74 of the Act. It can be held that certified copy of the Will is not admissible per se in evidence. It cannot be presumed to be a primary document, which could be adduced in evidence.

Karnataka High Court

Rajendra @ Deendhar Genitive vs Smt. Ningawwa W/O Dodappa ... on 28 August, 2017

Author: S.Sujatha