LexYUMNAM ONGBI TAMPHA IBEMMA DEVI versus YUMNAM JOYKUMAR SINGH & ORS.
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[2009) 4 S.C.R. 157 .. YUMNAM ONGBI TAMPHA IBEMMA DEVI A V. ·YUM NAM JOYKUMAR SINGH & ORS. Civil Appeal No. 1600 of 2009 MARCH 6, 2009 B (DR. ARIJIT PASAYAT, V.S. SIRPURKAR AND ASOK KUMAR GANGULY, JJ.] Succession Act, 1925 - s. 63 - Evidence Act, 1872 - s. 68 • ~ Mode and manner of execution of Will - Essential ingredients- Discussed - On facts, one of the attesting witness c deposed that the testator did not sign on the Will in his presence and that witness himself signed without knowing the nature of the document - His evidence did not support the due execution and attestation of Will - Genuineness of Will thus not proved. D The question which arose for consideration in the present appeal were whether the Will in question was genuine and whether the requirements of section 63 of Succession Act, 1925 and section 68 of Evidence Act, E 1872 were complied with. Dismissing the appeal, the Court HELD: 1. As per the provisions of Section 63 of the Succession Act, for the due execution of a Will (1) the F testator should sign or affix his mark to the Will; (2) the signature or the mark of the testator should be so placed that it should appear that it was intended thereby to give effect to the writing as a Will; (3) the Will should be attested by two or more witnesses, and (4) each of the said witnesses must have seen the testator signing or affixing G his mark to the Will and each of them should sign the Will in presence of the testator. The attestation of the Will in the manner stated is not an empty formality. It means 157 H 158 SUPREME COURT REPORTS [2009] 4 S.C.R. A signing a document for the purpose of testifying of the signatures of the executant. The attested witness should put his signature on the Will animo attestandi. It is not necessary that more than one witness be present at the same time and no particular form of attestation is 8 necessary. Since a Will is required by law to be attested, execution has to be proved in the manner laid down in the Succession Act and the Evidence Act which requires that at least one attesting witness has to be examined for the purpose of proving the execution of such a document. c Therefore, having regards to the provisions of Section 68 of the Evidence Act and Section 63 of the Succession Act, a Will to be valid should be attested by two or more witnesses in the manner provided therein and the propounder thereof should examine one attesting witness to prove the will. 0 The attesting witness should speak not only about the testator's signature or affixing his mark to the will but also that each of the witnesses had signed the will in the presence of the testator. (Paras 6, 7] (162-E-H; 163-A] Girja Datt Singh v Gangotri Datt Singh AIR 1955 SC E 346; B. Venkatamuni v. C.J. Ayodhya Ram Singh 2006(13) SCC 449; Benga Behera v. Braja Kishora Nanda 2007(9) SCC 728; Ani/ Kak V. Sharada Raje 2008(7) sec 695 - relied on. 2. The trial court did not frame issue regarding the validity of the will. The evidence of PW2, one of the F attesting witnesses did not in any way support the claim of due execution and attestation of the will. On the contrary, it clearly established that testator did not sign in his presence and PW2 did not know what was the nature of the document. There was no attesting witness who G signed in his presence and, therefore, the requirements of Section 68 of the Evidence Act were not complied with in order. [Para 12] [171-E-G] Case Law Reference H AIR 1955 SC 346 relied on Para 8 f- YUMNAM ONGBI TAMPHA IBEMMA DEVI V. 159 YUMNAM JOYKUMAR SINGH & ORS. 2006(13) sec 449 relied on Para 9 A 2007(9) sec 728 relied on Para 10 2008(7) sec 695 relied on Para 11 CIVILAPPELLATE JURISDICTION: Civil Appeal No. 1600 of2009 B From the Judgement and Order dated 15.11.2006 of the Hon'ble High Court In F.A. (0) No. 7 of 2004. Hijam N.K. Singh, Ashok Kumar Sharma, Lenis S. Hijam, Rahul Joshi, for the Appellants. C F.C. Agrawala Gourab Banerji, Gautam Jha, A. Mohendro : Singh, Amit Pawan, Sapam, Biswajit Meitei, Anil Kumar Pandey, Ashok Kumar Singh, for the Respondents. The Judgement of the Court was delivered by D DR. ARIJIT PASAYAT, J. 1. Leave granted. 2. Challenge in this appeal is to the judgment of a learned Single Judge of the Guwahati High Court in the First Appeal by E the respondents. Before the High Court challenge was to the order passed by learned Additional Distric
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