N KAMALAN DEAD Vs. AYYASAMY

JUDGEMENT

(1.) The latin expressions 'onus probandi' and 'animo attestandi' are the two basic features in the matter of civil Court's exercise of testamentary jurisdiction : Whereas 'onus probandi' lies in every case upon the party propounding a Will - the expression 'animo attestandi' means and implies animus to attest : to put it differently and in common parlance it means intent to attest. As regards the latter maxim, the attesting witness must subscribe with the intent that the subscription of the signature made stands by way of a complete attestation of the Will and the evidence is admissible to show whether such was the intention or not (see in this context Theobald on Wills 12th Ed. Page 129). This Court in the case of Girija Datt vs. Gangotri Datt (AIR 1955 SC 346) held that two persons who had identified testator at the time of registration of the Will and had appended their signatures at the foot of the endorsement by the Sub-Registrar, were not attesting witnesses as their signatures were not put "animo attestandi". In an earlier decision of the Calcutta High Court in Abinash Chandra Bidvanidhi Bhattacharya vs. Dasarath Malo (1929) ILR 56 Cal 598, it was held that a person who had put his name under the word "scribe" was not an attesting witness as he had put his signature only for the purpose of authenticating that he was a "scribe". In the similar vein, the Privy Council in Shiam Sunder Singh vs. Jagannath Singh (1928) 54 Mad LJ 43 held that the legatees who had put their signatures on the Will in token of their consent to its execution were not attesting witnesses and were not disqualified from taking as legatee. In this context, reference may be made to the decision of this Court in M. L. Abdul Jabbar Sahib vs. H. V. Venkata Sastri and Sons (1969) 3 SCR 513 wherein this Court upon reference to S. 3 of the Transfer of Property Act has the following to state (Para 8 of AIR) :

(2.) For proper appreciation of the observations of this Court in Venkata Sastri's case (supra), S. 3 of the Transfer of Property Act, in particular, the meaning attributed to the word "attested" ought to be noticed and the same reads as below (para 8 of AIR) :

(3.) Turning on to the former expression 'onus probandi', it is now fairly well-settled principle that the same lies in every case upon the party propounding the Will and may satisfy the Court's conscious that the instrument as propounded is the last Will of a free and capable testator, meaning thereby obviously, that the testator at the time when he subscribed his signature on to the Will had a sound and disposing state of mind and memory and ordinarily, however, the onus is discharged as regards the due execution of the Will if the propounder leads evidence to show that the Will bears the signature and mark of the testator and that the Will is duly attested. This attestation however, shall have to be in accordance with S. 68 of the Evidence Act which requires that if a document is required by law to be attested, it shall not be used as evidence until at least one attesting witness has been called for the purpose of proving its execution and the same is so however, in the event of there being an attesting witness alive and capable of giving the evidence. The law is also equally well settled that in the event of there being circumstances surrounding the execution of the Will, shrouded in suspicion, it is the duty paramount on the part of the propounder to remove that suspicion by leading satisfactory evidence.