Rajamani vs Commissioner K. Paramathi Panchayat Union and Others

S.M. Abdul Wahab, J.—The main question involved in this case is whether the attestation has been proved by the witnesses. Here in this appeal three witnesses have spoken about the execution and registration of will R.W. 1 is the beneficiary herself. Therefore that evidence cannot be relied upon. P.Ws. 2 and 3 are third parties. But P.W. 2 has stated that he did not visit the house of P.W. 1 when the will was executed. That itself is sufficient to show that he is not an attesting witness. P.W. 3 is another witness. He has stated that immediately after the execution of the will the witness signed the will and thereafter he signed it. Further that P.W. 1 stated that all of them i.e. the testator, beneficiary and witnesses left the house of P.W. 1 to have registration of the will. But in the cross-examination this witness stated that he went straight from tea shop to Chinnatharapuram. Therefore whether he was actually present at the time of execution of the will is doubtful. From the evidence of P.W. 3 it is seen that he was not present at the time of execution, probably he might have gone to the Registrar office for registering the documents. But Section 68 of the Indian Evidence Act, 1872 requires that he must be an attesting witness to the execution but not to the registration. Therefore in my view this witness cannot be said to have proved the execution of the will. P.W. 1 as already stated is none other than the beneficiary, under the will and for whose benefit the will has been executed. The Courts below have considered the evidence of P.Ws. 1 to 3 and they have found contradiction in the evidence of P.Ws. 2 and 3 and hence according to them execution has not been proved.

It is no doubt true that the document has been registered and witnesses who have taken part in the registration have proved registration but as stated earlier the law namely Section 68 of the Indian Evidence Act, 1872 requires proof of execution. As the execution has not been proved there is no necessity for interference in the second appeal. Hence the second appeal is dismissed. However there will be no order as to costs. Consequently C.M.P. No. 291 of 1998 is closed.