Advocate S Selvakumar|Property advocates in Bangalore|Property lawyers in Bangalore
Execution of
a can is needed to be evidenced in terms of the provisions of Section 63(c) of
the Indian Succession Act and Section68 of the Indian evidence Act. In Janki
Narayan Bhoir v. Narayan Namdeo Kadam, [(2003) two SCC 91], whereas addressing
the question in an elaborate way, the Hon'ble Supreme Court has command as
under:
“To say can
has been punctually executed, the necessity mentioned in Clauses (a), (b) and
(c) of Section 63 of the Succession Act
are to be complied with i.e., The individual has got to sign or affix his mark
to the desire, or itought to be signed by another person in his presence and by
his direction;
The
signature or mark of the individual, or the signature of the person linguistic
communication at his direction, has got to seem at an area kind that it may
seem that by that mark or signature the document is meant to own result as a WILL;
The most
necessary purpose with that we have a tendency to are presently involved during
this attractiveness, is that the desire has got to be documented by 2 or
additional witnesses and every of those witnesses should have seen the
individual sign or affix his mark to the desire, or should have seen another
person sign the desire within the presence and by the direction of the
individual, or should have received from the individual a private
acknowledgement of signature or mark, or of the signature of such different
person, and every of the eleven witnesses has got to sign the desire within the
presence of the individual."
As regards
compliance of the availability of Section 68 of the evidence Act, it absolutely
was opined:
"In a
way, Section 68 offers a concession to those that need to prove and establish a
can in an exceedingly Court of law by examining a minimum of one attesting
witness despite the fact that can has got to be documented a minimum of by 2
witnesses obligatorily underneath Section63of the Succession Act. However
what's vital and to be noted is that one attesting witness examined ought to be
in an exceedingly position to prove the execution of a can. to place in
different words, if one attesting witness will prove execution of the desire in
terms of Clause (c) of Section 63, viz., attestation by 2 attesting witnesses within the manner contemplated in this, the examination of different attesting
witness are often distributed with.
The one attesting witness examined, in his
proof has got to satisfy the attestation of a can by him and therefore the
different attesting witness so as to prove there was due execution of the
desire. If the attesting witness examined besides his attestation doesn't, in
his proof, satisfy the wants of attention of the need by different witness
conjointly it falls wanting attestation of will a minimum of by 2 witnesses for
the easy reason that the execution of the desire doesn't simply mean the
signing of it by the individual however it suggests that fulfilling and proof
of all the formalities needed underneath Section63 of the Succession Act.
wherever one attesting witness examined to prove the desire underneath Section 68 of the proof Act fails to prove the due execution of the desire
then the opposite obtainable attesting witness has got to be referred to as to
supplement his proof to form it complete altogether respects. Wherever one
attesting witness is examined and he fails to prove the attestation of the desire
by the opposite witness there'll be deficiency in meeting the necessary needs
of Section 68 of the evidence Act."
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