SUMITRA DEVI Vs. STATE

JUDGEMENT

(1.) This appeal is directed against the order dated 15th May, 2007 passed by the learned Single Judge rejecting the contention of the appellant herein that a document purporting to be an unprivileged 'Will' attested by only one witness can be probated by the Court. The learned Single Judge consider the aforesaid plea raised by the appellant in depth and upon consideration of the same held that in view of the provisions of the Indian Succession Act, no such interpretation as sought for by the appellant could be given. It was held that a Will to be valid in the eyes of law has to be attested by two witnesses, whether or not probate proceedings are contested.

(2.) In the present case, the unprivileged Will referred to and relied upon by the appellant was witnessed only by one witness. Section 63 (c) of the Indian Succession Act incorporates a mandatory requirement that a Will must be attested by two or more witnesses. The said provision has been examined in Janki Narayan Bhoir versus Narayan Namdeo Kadam (2003) 2 SCC 91 and it has been held that on combined reading of the said Section with Section 68 of the Indian Evidence Act, a 'Will' has to be mandatorily attested by two witnesses. Similar view has been expressed by the Supreme Court in N.Kamalm versus Ayyasamy (2001) 7 SCC 503.

(3.) In our considered opinion, the learned Single Judge was justified in holding that the requirement of attestation of a Will of two or more witnesses is mandatory, whether the Will is contested or not. Probate proceeding are proceeding in Rem.