 of an unprivileged bill. Yesterday, Justice Veeram Kumar, an eminent lawyer, an eminent judge and a resource person, because normally we feel always it's a lawyer and normally we always feel that after committing the office, one becomes a lawyer. And the mode of proof of an unprivileged bill like yesterday he explained what is the difference between a privileged bill in respect of the soldiers, etc. And today we will be taking 32 questions which we have done. We have shared it with the group and taking perspectives forward. And today we have Mr. KVJ Rao who we will request Mr. KVJ Rao to introduce Justice Ram Kumar and as usual he will also take these certain questions with us. What do you want, sir? I mean Justice Ram Kumar needs no introduction. Like saying anything about Justice Ram Kumar is like showing the candle to the wind. He is master of all and criminal law I think has been his passion. So he mostly speaks about criminal law dispassionately and he imparts knowledge to so many of us and we are really thankful to him for the effort that he puts into come and impart knowledge to all of us with that short introduction and hand over the thing back to Vikas. Thanks Vikas. Since we had 18 questions yesterday, we will take from 19 but before that as usual we will ask Justice Ram Kumar to give a slight backdrop what we had discussed yesterday and then we can take the questions forward. Okay. Thank you Vikas. Thank you Mr. Rao. Good evening friends. Yesterday we have seen that unlike in the case of other compulsorily attestable documents, the word execution in the case of a will not only takes in the actual act of signing but also attestation whereas in all other cases we have compulsorily attestable documents, instruments of transfer covered by the transfer of property act, execution and attestation are two different things but in section 63 of the Indian Success Act is clear enough to show that the word execution takes in attestation also where he also referred to Babu Singh versus Ram Sahai. A year 2008 Supreme Court 2485 while interpreting a will, the Leonard judges held that for the purpose of attestation you have to look to section 3 of the transfer property act. With a due respect I beg to disagree because attestation is there in section 63 itself. You don't have to go to transfer property act. Transfer property act has not taken will. Will is not an instrument of transfer. It is not an instrument of transfer intervivos. Therefore to that action that decision may not be laying down the correct law but of course wordings are same attestation in section 3 of the TP Act and attestation in section 63 clause C of Indian Success Act are the same. Yesterday we considered the question of execution. What exactly is an execution? What all things have to be there? Today we pass on to the matter of proof. It is not enough that a will is duly executed. A duly executed will may not be upheld by the court if it is not duly proved. A duly executed will if not duly proved the propounder may lose the case. Therefore it is a proof of a will before a court of law is as important as due execution of the will. We yesterday also noticed that unlike in the case of other documents in the case of a will there is no departure. The main part of section 68 of the Indian Evidence Act that at least one attesting witness shall be called for proving due execution due attestation is a requirement compulsory requirement in the case of a will. Whereas in the other case of document if compulsorily attestable document if registered this requirement is not there but in the case of a will the law does not make any exception. At least one attesting witness should be examined to prove due execution. Otherwise the propounder will have difficulty. Now we pass on to the questions for today on proof. Now yesterday somebody asked me the the page number of 1949 Bombay with M.C. Chagla's decision 1949 Bombay 2006. Of course we will be referring to that decision today. Today also we will be referring to that. We need to take down 1949 Bombay 2006. Yes. Professor Mohan you have the questions. I don't have sir. He doesn't have. No because I appreciate it in the group I thought you would be having it. I will share it with you. Yeah please. So the 19th question is since we have done 18th till yesterday. Is an attesting witness examined in court for proving due execution and attestation of a will obliged to prove due attestation by the other attesting witnesses or witnesses in all cases. This is a very very tricky area. In fact the case law on this point is not very very much helpful because it is slightly misleading. Misleading in the sense that all those judges who decided those cases they had wills before them where the attesting witnesses were simultaneously present. They see law require that at least two or more attesting witnesses should be there and for proof at least one of them should be examined. For execution for attestation at least two or more attestors should be there and for proving the due execution at least one of those attesting witnesses should be examined. That is section 68 of the evidence act whereas under section 63 of the Indian Success Act at least two or more attestors should be there. Now what I will give you the citation in all those citations including 1949 Bombay 266 the leading case where also they held that since both the attester who was examined to prove due execution of the will could not prove the attestation by the other attesting witness. Therefore they said that the will has not been duly proved. However they said that as a court of conscience will not allow the intentions of the destater the desire of the destater to to be defeated. Therefore we will give the propounder one more opportunity and the matter was remanded. Otherwise it is a beautiful decision not otherwise the beautiful decision I proceed on the assumption that both the attestors were present simultaneously at the time of execution that could be the reason why such an observation and remand was made in that case. All other decisions are following this including 1959 Supreme Court the leading case. So therefore see unlike other documents execution includes attestation and under section 63 now we will read section 63. Can anyone of you read section 63? So what can be done is I will try to share 63 in the screen itself. Meanwhile we can take the second part but if you want I can read that. Oh no not necessary I will read a clause C. Clause C of section 63 says the will shall be attested by two or more witnesses each of whom has seen the testator sign or affix is marked to the will or has seen some other person sign the will in the presence and by the direction of the testator or has received from the testator a personal acknowledgement of his signature or mark or the signature of such other person and each of the witnesses shall sign the will in the presence of the testator but it shall not be necessary for that more than one witness be present at the same time and no particular form of attestation shall be necessary. We have seen yesterday that the execution of the will signing of the will by the testator can be he can sign he can put his own signature he can request somebody else to put his signature or the the testator can himself put a mark he can either sign the will or put a mark but both signature or the mark should be put at the appropriate place to make it to make it discernible that he is signing a will understanding the prescriptions under the will if it is put at the proper place at the appropriate place site test the whether it is signature or mark it is valid then in the case if he is not able to sign or put a mark he can request another person to sign the will on his behalf or if the attestors are not there then he can after executing the will approach an attestor and say and make an acknowledgement that is the earlier part of section 63 he can acknowledge to attestor that this is the will executed by me it contains my signature this is my signature I know the the prescriptions under the will I know the bequest made there under now you I am requesting you to put your signature as an attestor if the at that person puts his signature in the presence of the testator it is a valid attestation though as per the earlier part of clause C the attester should should sign in the presence of the testator signing and attestors should sign see the testator signing usually in all other documents execution is witnessed by the attestor attestor is like that is put for witnessing the execution here also that is the rule the attester is called for witnessing the execution execution is signing or putting the mark or requesting somebody else to to sign the document but in the case of a will there is an exception that instead of the attestor seeing the executed the the testator signing or putting his mark or requesting somebody else to put his mark the attest the attestor can accept an acknowledgement from the testator the attesting witness can take an acknowledgement from the testator that this is his duly executed will the signature contained therein is his own signature in that case even without the testator signing the will the attestor can put his signature that is why it it it shall not be necessary that more than one witness be present at the same time and no particular form of attestation shall be necessary at a time one witness alone need be necessary now i had given you a chart yesterday that chart as it is bisect the entire section 63 is bisected and shown is two two separate compartment compartment one is regarding execution compartment one two is regarding attestation so attestation means one two or more witnesses each of whom has seen the testator sign first of all or seen the testator affix his mark or seen some other person sign the will on the request and direction of the testator or received from the testator a personal acknowledgement regarding his signature or received from the testator a person an acknowledgement regarding the testator's mark if he has put a mark only or received from the testator a personal acknowledgement of the signature of the other person yesterday i gave you a problem that some other person had put his mark on the request of the testator the other person did not sign but put a mark only and that person went to a attestor and told the attestor that this is my mark please sign as an attestor no he's not for him to acknowledge the signature acknowledge execution he's for the testator to acknowledge execution even even where a some some other person has signed on behalf of the testator he's not for that other person signatory to acknowledge his signature he's for the testator to acknowledge that this signature is the signature of such and such person was signed the document on my request then he and each of the witnesses shall sign in the presence of the testators this attestors should each of them two or more each of them should sign in the presence of the testator then contains the other rider but it shall not be necessary that more than one person shall be present at the same time now the citations which i am presently going to give you were all presumably cases where both the attestors were simultaneously present and that is why in cases where one attestor was not able to say that the other attestor also signed in his presence the court said that he's not valid attestation because if both are simultaneously present naturally when one attestor attest attest the will he will naturally see the other attestor also the 49 Bombay is Vishnu Ram Krishna Vani versus Natu Vithal Vani AAR 1949 Bombay 2006 then Janki Narayan Boyer versus Narayan Namdyo Kadam AAR 2003 Supreme Court 761 again Shreedevi versus Jayraj Shetty AAR 2005 Supreme Court 780 again Niranjan Umesh Chandra Joshi versus Brindhula Joshi Rao AAR 2007 Supreme Court 614 again Benga Behera versus Bhradja Kishore Nanda AAR 2007 Supreme Court 1975 am i going fast Mr. Vikas no not really sir you're okay then then Roor Singh versus Bachchan Kaur 2009 volume 11 SCC page one again 2009 volume 4 SCC 780 three judges three judges then Devasi Kutty versus Valsala Vishalakshi Amma 2010 KHC 623 that's the Kerala. Probably you have told your video your face is not coming for oh that's not not deliberately done automatic some mistake accident is it okay yeah yes yes you were on 2010 KHC sir so my doubt yes 2010 that's the Kerala decision all following the earlier decision 2010 KHC 6233 6233 again Supreme Court AAR 1994 I am sorry it is again Kerala then my doubt is when witnesses more than two witnesses are not present simultaneously can the court can the court say that due execution has not been proved because both the one witness who was examined who was summoned for proving due execution did not say that he has seen the other witness also signing in all these cases they said that the other came in close that's not my making some yeah I don't know why I don't know today it's a time and again getting this way maybe nobody wants to see my face no problem yes so now I will I will demonstrate my theory by saying that in one particular case we have one in fact even that Umadevi Nambiar versus TC Siddhan AAR 2004 Supreme Court 1772 both the witnesses were not present inside one of the attestors was I was again it is yes sir let me call my expert in fact in Umadevi Nambiar 2004 Supreme Court 1772 also again AAR 2019 Supreme Court AAR 2019 Supreme Court 5682 5682 where the testator went to the addressing witnesses individually with his own signed will and read it out to them and personally and personally acknowledge it is signature after which each of the witnesses affixed the signature at different points of time at different places Supreme Court held that it is this valid attestation it is valid attestation was the was what the Supreme Court said so what can be done is once you log out and then log in because again that we're just switching off yes sir you can unmute yourself yes sir okay okay now let us see so so the this distinction should be borne in mind by everyone dealing with a will for for proving a will it is only when the both the attestors are simultaneously present at the time of execution of the will need they depose before court that while he was signing or while he was attesting the he saw the other attestor also signing the will as a as a witness to execution otherwise it may not be the correct position in law yes we pass on to question number 20 yeah is it not the preponder of a will exempted from proving due execution of the will in a case where the opposite party far from making a specific denial of execution of the will and his pleadings has instead admitted the will and his only defense is that it is a mutual will as I already told you in the case of a will the law does not give any relaxation at all proof as required by section 68 of the evidence act is a must and not understanding that there is a confession or admission by the opposite party not understanding the admission by the opposite party a will shall not be used as evidence that's what the section says 63 60 section 68 of the evidence act also shall not be used as evidence until due execution of the will as prescribed under section 63 of the Indian Success Act in accordance with the mandate of section 68 of the evidence act has been proved has been established the the leading case on the point is H. Venkada Jaila Yengar H. Venkada Jaila Yengar versus B. N. Timajamma a year 1959 Supreme Court 443 in fact this decision all lays down almost all the important aspects of execution etc every almost every aspect only one aspect which requires clarification is what I said about 49 Bombay that is they also say that the attestor who is examined who is called to the court for proving due attestation should also depose that he has seen the other attestor attesting the will that may be necessary only where both are simultaneously present not otherwise is my take on that then other decisions are SR Srinivasa versus Padma Amadamma 2010 volume 5 SCC 274 2010 volume 5 SCC 274 now we have we have in fact a a a division bunch of the Kerala I quote in AIR 1990 Kerala 226 AIR 1990 Kerala 226 consisting of two eminent judges justice case Paripurna and justice TL Vishwanada here both were eminent judges both of them held they there's a verdict by these judges that if the opposite party admits execution of the will then the rigor of section 68 need not be followed because an admit they put it under section 58 of the evidence act an admitted fact need not be proved when a fact is admitted why should you prove it that was the the reasoning that decision held the field for several years in Kerala but in fact I also followed that decision in one case 2009 K8 seat 636 etc but then in the light of the subsequent rulings of the Supreme Court and even even the 2000 even 1959 Supreme Court 443 is a leading decision on that point then again the it was held that that view is not to correct is peringurium because a will can be proved only in the manner special special procedure prescribed by section 68 of the evidence act not in any other form not understanding the fact that it is admitted by the opposite part yes because the under section 58 also even when there is an admission an admitted fact need not be proved even when there is an admission court can call upon the opposite party to prove it therefore that is why the that decision was has not been now followed question 21 can describe of the will play the part of an attesting witness ordinarily no ordinarily a scribe is called only for writing the document he's a document writer basically he is only the scribe of the document he is called only for writing the document so therefore ordinarily a scribe cannot be called as an attest it cannot be cannot play the part of an attesting witness I have got one Calcutta decisions one Calcutta decision a year 1929 Calcutta 123 Supreme Court also in a person who had put his name under the word scribe was not an attesting witness he had specifically written in the document I am the scribe and putting my signature as in my capacity as scribe he cannot be called an attesting witness and he can he cannot he can be called only for proving his signature as a scribe not any other purpose that is what the Supreme Court also said in AIR 2001 Supreme Court 2802 AIR 2001 Supreme Court 2802 again in Srinivasa versus Padma Padmavadamma 2010 Volume 5 SEC 274 but we have a different view of the same Supreme Court if the scribe has also attested the will with the requisite animal attest andy with the requisite animal attest andy that is with the requisite intention to attest to the will he has also attest attested the will in that capacity as well then even though he may be a scribe also he can be treated as an attesting witness as well if his signature is also in the list of witnesses not only that in the document he has signed not only as his scribe but also as an attesting witness with a requisite intention to that is why animal attest andy the intention to attest with that he has signed in a in an appropriate case scribe can also figure as an attesting witness the citation is AIR 2006 Supreme Court 786 AIR 2006 Supreme Court 786 probably both the attesting witnesses might have been dead so in that case probably I don't know then sir at least juncture is there not scope for manipulation and he himself is a scribe and he would be acting in other capacity as a witness no if at the at the place where the attesting witness is to sign there's a placement for that if if his signature figures there in the document nothing wrong nothing wrong if described see there's no legal bar against a scribe figuring as an attesting witness but when ordinarily when you call a call him a scribe his job is to transcribe the document that's all he's a document writer basically but he can also figure as an attesting witness no legal bar yes that is what the Kerala court also held that there is no legal bar he can he can be if he's if he has a fixed his signature as a token of attestation having witnessed execution of the will by the testator uh 2015 3 k l t 7 4 0 duchan bench kerala reviendan cg versus cg goby 2015 3 k l t 7 4 0 we'll pass on to question number 22 there's not a will void if a legity under the will figures as a testing witness to the win there's a popular misconception that if a legity figures as a as an attester as an attested dog because he's a beneficiary under the will he's a beneficiary under the will he is the the holder of a bequest yes there's a bequest in his favor if he figures as an attestee as an attester the the it will vitiate the entire dog we know it's not so the the his bequest alone will be vitiated by virtue of section 67 the bequest in his favor will be vitiated that will not vitiate the will as a whole section 67 of the succession act it's very clear now i'm passing here let me pose a question out of the box see we have seen that the will should be attested by two or more attesting witnesses and that is what section 63 of the succession axis but then section 68 of the evidence act says while proving a will at least one of the attesting witnesses should be called for proving the will now supposing in a case there were two attesting witnesses and one alone and both are alive one alone is called and if that one person then either denies execution or is unable to recollect whether he had attested the will then can can can the propounder rely on section 71 see of the evidence act please take Indian evidence act section 71 prove an attesting witness denies the execution if the attesting witness denies or does not recollect the execution of the document its execution may be proved by other evidence by other evidence this other evidence has been interpreted to me a person who is conversant with this uh signature or his handwriting can be examined by uh recalls to section 47 or if such a person is not there his admitted signature of handwriting can be produced in code and sent to an expert for comparison under section 45 of the evidence act this is other evidence but then if the other attesting witness is also alive then you cannot have recalls to section 71 by by because there is other other attesting witness alive but the propounder is not calling him instead he wants to prove when the the only attesting witness was called for proving execution he denies or he does not remember in such case he the propounder cannot examine a person who is who is conversant with his signature etc that is not the other evidence envisaged by section 71 that is what the supreme court held in janki narayan versus narayan nam nam nam nam devu janki narayan versus narayan nam devu 2003 volume 2 scc 91 2003 volume 2 scc 91 if the other attesting witness is alive he should call that witness that should be the mode of proof don't resort to section 71 of the evidence act only because i omitted to frame a question direct question on this that is why this sir one small doubt yes yes actually a mother of two sons she writes she writes a will and the the legates the sons are the legates and the wives of that and the daughters in law are the witnesses okay what will be the status of that that will not be shared that will not be shared the attestation are they minors are they minors are they minors they are not minors they are they are majors and wives they are daughters in law they are also the beneficiaries they have different legal status yeah you particularly in present day times yeah different legal entities of course even from the beginning but nowadays they will not acknowledge eh to be known after their husband only that's correct yeah 2023 2023 would it make shall i yeah please please sir would it make any difference if the legatee instead of figuring as an attesting witness has put his signature on the will in token of his consent to its execution see legatee cannot be an attestor if he is an attestor it will not be shared the will did but it will be shared his request it will he will be the big question his favor will go therefore in a in a particular case privy council salvaged the document by by saying that his signature is not as a as an attestor the legatee signature occurring in the document is not as an attestor but only eh in favor it is eh the the he has put his signature as a token of his consent the privy council held that he has put his signature only as a token of his consent to the execution he is not eh he is not attesting the document in such a case the bar under section 67 of the Indian succession act will not apply therefore the big question in his favor will not fail oh shiam sundar singh versus jagannad singh a year 1927 privy council 248 248 in fact this is eh faithfully followed by the kerala echoed edition page of the kerala echoed also in a year 2007 kerala page 77 2007 kerala page 77 so if he has not signed if the legatee has not signed as an attestor but only in as a consent to his having witnessed the execution please consent then that will not initiate the big question in his favor quotes always quotes find out some ways and means to salvage a big question because otherwise maybe it is ignorantly done or unknowingly done the person the the person who advised them did not properly advise them but for that ignorance that the big question should not fail okay okay question 24 are not the requirements of section 63 of the Indian succession act 1925 satisfied where at the time of registering the will the endorsement made by the subregister is to the effect that the executant attestator admitted execution of the will and the subregister signs below the endorsement besides two witnesses in fact the earlier view of the Supreme Court was that no answer was an emphatic no because subregister is is not attesting an execution of a will of course he has got a statutory duty of asking the executant namely the testator whether this is a will executed by whether you executed this document and he will say yes this is the document executed by by him then two witnesses signed there not as attestors they signed there as identifying witness witness in the subregister's office the two witnesses who signed are not attesting his signature execution of the will they are signing only as identifying witness as identifying that this is the person referred to in the document we know him please register please subregister please register the document because we know him he is the person referred to in the document we are identifying him before you the subregister need not know any each and every person coming up for registration that is the purpose for those witnesses to signing the document therefore that is why very correctly Supreme Court held in a year 1955 Supreme Court 346 a year 1955 Supreme Court 346 again 1994 volume 5 SCC 135 volume 1994 volume 5 SCC 135 again a year 2004 Supreme Court 436 again a year 1990 Supreme Court 1888 where they beautifully said subregister cannot be a statutory attesting witness he is not a statutory attesting witness but because again because they also said that he is the the subregister is not attesting the the execution of the will and he is not doing it anymore attest and he he is not doing it anymore attest and he with the requisite intention to attest the document it is not in that capacity that he signing the document but in Penderkota Satyanarayana versus Penderkota Sita Ratnam to a year 2005 Supreme Court 4362 it was held that endorsement by the subregister that the executant had acknowledged it before the subregister due execution of the will amounts to attestation where the attesting witnesses having been dead so that is the case where the attesting witnesses were dead then the the propounder should have resorted to section 71 other by other mode section 47 is there section 45 is there instead of that the subregister was summoned and Supreme Court in that decision held that both the attesting witness are there therefore the requirements of section 59 of the evidence act which allows proof and no attesting witness can be found and due execution of the will was proved by the subregister again same view taken by Supreme Court in 2014 2014 15 SCC 578 2014 volume 15 SCC 578 I have my own reservations about these rulings because the purpose of the subregister is not at all for new execution due attestation of a document he nobody is executing any will before him the executant is only of course for attesting for attesting a document the execute is enough that the testator either signs the he signs before the restater or he gets an acknowledgement of his signature from the restater but then only then only there's only one witness one witness in the form of subregister two more two or more witnesses are the requirement of law in that view also you can't say that the will is duly executed duly adjusted then on the question of burden of proof we pass on to question number 25 the question of proving a will ordinarily arises before which court ordinarily before a civil court in a civil litigation or before a testamentary court yes question 26 what is the nature of the burden of proof on the propounder of a will that is a very important subject when the will is propounded by any of the parties to a litigation the burden to prove the same is always on the propounder who's who is setting up the will who is setting up the will and claiming rights there and the burden is on him the burden becomes heavier if the executor the will is surrounded by suspicious circumstances like the dispositions contained therein appearing to be unnatural or improbable or unfair or such that it gives rise to an indication that the will was not the result of the testator's free will or volition or where the alleged signature of the testator appearing on the document is shaky and doubtful or where the propounder of the will taking a prominent role in the execution of the will which confers substantial benefits to him he is fetching the the attestors he's fetching even separation is brought to the home etc all arrangements are done all convenience are done he is behind that because he is getting substantial benefit under the will when in such circumstances also then where import unity where the the execution of the will by the testator is a result of import unity that is persistent to the point of annoyance he is persisting the testator to the point of an end ultimately unable to bear his import unity the testator unwillingly signs puts his signature these are all the circumstances which show that there are suspicious circumstances these are all circumstances which arouse the suspicion of a court in such circumstances court would ordinarily be reluctant to treat the document as the last will executed by the person with the requisite testamentary capacity he should have the requisite testamentary capacity that is he should be signed by first of all it should be the last will and testament and signed by a person with the requisite testamentary capacity a person with the sound disposing state of mind he should be a person of sound disposing state of mind supposing he was afflicted by cancer and in a in a in a terminal stage and if his signature appears in a document that too very shaky and not at the exact proper place the exact slightest these are all suspicious circumstances which the court may ask the propounder to clear propounder will have to clear all those suspicions in the mind of the court H. Venkara Jaila Iyengar versus B. N. Timajamma here 1949 1959 here 1959 Supreme Court 443 is the leading case by three judges it contains almost every aspect of the execution and the proof of a will yes question number 27 Rao sir yeah is there any difference in the burden of proof if initiating circumstances like undue influence fraud misrepresentation coercion collusion etc are alleged by those attacking the execution of the will supposing there's a suit for partition and one of the defendants come up with a will with a will saying that property is not partable as per the will executed by our father this property was given to me exclusively all the these properties were given to me you have no right over the property so I this a testamentary succession in my favor only you won't get any property that is his contention then the others say no no this document this execution of the will is initiated by undue influence fraud misrepresentation coercion collusion etc which are the known defenses under the civil law if such a contention is raised by the opposite party who is attacking the execution of the will then indirectly he's admitting the execution of the will he's indirectly admitting the execution of the will and he says that the execution is initiated by these initiating circumstances then the burden beautifully stated in then the burden is not on the profounder the burden is on those who attack the execution of the will on these grounds because signature is there nothing no other suspicious circumstance but then they they they attack the document by saying that which is why undue influence the you you had unduly influence him his mind or fraud you were in a position to dominate his will so you have unduly influence him or fraud has been practiced on him to make it appear that he's signing a some other consent document etc or collusion coercion if the coercion means you he has been made to put his signature under duress so coercion these are all then you are admitting his signature the execution is there then if you're attacking the execution on these grounds the burden is on those persons attacking the document on these grounds beautifully stated by three judges vengadha jala yankar versus tima jama a year 1959 supreme court 443 then followed by suryendra paul versus dr mrs saraswati arora a year 1974 supreme court 1999 1999 three judges davlatra versus so soba a year 2005 supreme court 2003 a year 2005 supreme court 52 any number of rulings to to quote a recent one a year 2020 supreme court 2614 kavita kanwar versus pamela metha a year 2020 supreme court 2614 yes question 28 sir i think that in the question 27 when you say that it is only the dispute is not quality well it is under our circumstances i think this will help a lot of i think that it will help a lot of professionals to understand that but then but then if there are suspicious circumstances it is for the proponent to clear the judicial mind of the court when there are suspicious circumstances like the signature being shaky or unnatural unfair etc but then if there is there is no suspicious circumstance or if the suspicious circumstances have been properly explained away by the propounder but on the contrary the the execution of the willies attacked by the opposite party by saying they don't know it has been executed by practicing fraud undue influence for a coercion etc then you are indirectly admitting execution therefore burden is on you to prove that the execution is initiated by these initiating circumstances i am saying that it will help the doubt in the minds of the professional that is a lawyer understand that the dispute is not quality well that he now the onus is quality circumstances yes onus is shifted to the attacker to the attacker that dispute is not that there is there does not exist a win but he has to demolish that is because of the circumstances that you beautifully explain i think that thank you understand let's say that it's not that this question was explained beautifully you're all questions are explained very beautifully i'm saying this is a very uh they say that the difference between a ordinary and extraordinary lawyer would be that this extra knowledge within which will probably probably i have that judicial perspective also apart from the lawyer's perspective i have the judicial perspective also however judge would look at the position probably that that that my experience comes probably i don't know that that you are saying probably but that is the reason that you are so popular yes uh professor mohan 28 questions 28 he's not the execution of the will for the sole benefit of one of the sons of the testator excluding all other children by itself as a suspicious circumstance this is an aspect on which we have some divergence of judicial opinion at this level of supreme court there are four sons yes three all the all the among the four sons one son is the sole belligatti the testator has preferred only one son he has disinherited all the three other three sons he was loving them equally these are these may be the evidence adduced in a case the the disinherited sons will be will be arguing through their lawyer that viewer the some evidence will be extracted from the witnesses to say that father loved all the sons equally but then why why discriminate why these are all the usual but then one aspect to be noted is if the father wanted to give the properties to sons equally why should he executed will the natural law of inheritance will take place take effect the natural law of inheritance will take effect with the very purpose of executing a will is to disturb the natural succession this is this is altogether a new viewpoint that is that is not my viewpoint not my viewpoint in fact way back in 1969 to a c w r they say it is not reported in a a r sec or criminological etc to 1969 volume 2 s c w r supreme court weekly reports 605 chukka ready let them versus let them are ready okay there they they said that when the natural order of succession when the natural order of succession itself has been disturbed disturbed that itself is a suspicious of contents is what the supreme court said of a subsequent subsequent rulings of the supreme court did not approve this view because the very purpose of executing a will is to disturb the natural order of succession you want to prefer somebody in preference to somebody else it is the wish of the wheel maker what you want to do exactly with this exactly exactly that cannot be called into question as long as the same mind yes correct so vedha mitra varma versus dharam deo varma 2014 15 sec 578 to 2014 volume 15 sec 578 held that it is not a suspicious circumstance but the other decision 69 to a c w r 605 held that that by itself is a suspicious circumstance but mind you mind you even though it is that by itself is not a suspicious circumstance but that coupled with other circumstances can be can be a ground for the court to think that there are there are some suspicious circumstances the the natural order of succession disturbed and there are other negotiating circumstances or other disturbing circumstances which may disturb the mind of the court because unless the propound is able to clear the conscience of the court he cannot win he cannot succeed therefore court may be in in a in a dilemma why did this person prefer one person even when the evidence is to the effect that he was loving all children alike and he had not provided for the other three why provide for one child alone one son alone that may be the the way in which the mind of the court working but there might be evidence to show that this person is is having no fun no vocation no fun he's a i'm virtually living in abject poverty etc that might have moved the mind of the testator to make a which are preference to make a preference in favor of that son all these circumstances will have to be shown so so i will say that natural order of violating or disturbing the natural order of succession by itself is not a suspicious circumstance that coupled with others may be a suspicious circumstance which the propounder will have to clear we'll have to explain we'll have to explain but that by it actually i i read a case where all the all the sons they are living elsewhere in america and other foreign countries and there is somebody a a stranger actually a distant relative who was with the father of those people and he was given the entire property willed away by will and that that when the when the challenge challenge the supreme court decision as i remember and it has been the execution has been okayed by the court or approved by the court i see okay that's so my maybe the testator thought that all all of them are well placed they're well placed and this person who has been looking after him during his old age and he might maybe that maybe he's in that that should be properly reflected in the evidence adduced by the propounder yeah in which case the court will be inclined to justify the will accept the will yes question 29 is it not correct to say that when by the will the natural order of succession to the testator is disturbed by creating legacies in favor of the propounder or beneficiary the burden is heavy on the propounder to remove the above suspicious circumstances of unfair disposition of property under the will see that by itself is not a initiating circumstance or a suspicious circumstance but that coupled with other circumstances will certainly loom large in the mind of the court and unfair disposition of property or an unjust exclusion of legal age particularly the descendants is regarded as a suspicious circumstance one of the suspicious circumstances Kavitha Kanwar versus Pamela Mehta Kavitha Kanwar versus Pamela Mehta a year 2020 2614 Supreme Court 2614 69 Supreme Court the wording i will i'll the exact wording i will say 69 to ACWR 605 they say that when the dad the very fact that natural order of succession has been disturbed is by itself is a suspicious circumstance that we cannot agree in fact in that umadevi nambiar which i gave you the citation which i gave you yesterday to the a year 2004 supreme court 1772 justice aridhya persaas has beautifully explained the every the a to z of will executing and attestation etc there his lordship also says when the very purpose of executing a will is to disturb the natural order of succession otherwise why execute a will leave it to the law of inheritance which the parties are governed in fact there is a constitution bench ruling there's a constitution bench ruling a year 1964 supreme court 529 which many of the subsequent rulings need not notice a year 1964 supreme court 529 5 judges that is shashi kumar banerjee versus subodh kumar banerjee wherein the the observation is reads thus if the propounder succeeds in removing suspicious circumstances the court would grant probate even if the will might be unnatural and might cut off wholly or in part near relations wholly or in part nearly even he can designate all his children and give it to somebody else there should be valid explanation that's all because this is an observation by a constitution bench right 69 69 sc w re is contrary to this observation and umadevi nambiar was a tc siddhan a year 2004 supreme court 1772 justice arjith prasad has beautifully explained that a will is executed to alter the ordinary mode of succession and by the very nature of things it is bound to result in either reducing or depriving the share of natural is if a person indents his property to pass to his natural is there is no necessity at all for executing a will yes question number 30 what technicalities are raised for assailing a will is the court expected to act as a court of conscience yes yes the court is expected to to act as a court of conscience while dealing with a will because a person if you are able to show that it is the last will and testament of a person and uh he was of of a sounded disposing state of mind when he executed the will then his intentions should not be defeated by some interpretation given by the court court should enter the armchair of the testator should get into the armchair of the testator and think that is what the courts have held therefore the the uh in vishnu ram krishna vani versus natu mital vani aya 1949 bombay 2006 justice mc chagla the other judge was also equally great judge kajendra garkar we are dealing with the case of a will and we must approach the problem as a court of conscience it is for us to be satisfied whether the document put forward as the last will and testament of ganga by that's again a ganga by was the testatrix in that case court says they say that we should be satisfied this is the last will and the testament of ganga by if we find that the vicious of the testatrix are likely to be defeated or thwarted merely by reason of want of some technicality we as a court of conscience would not permit such a thing to happen we have not heard mr council on the other point but assuming that ganga by had a sound sound and disposing state of mind and that she wanted to dispose of her property as she in fact has done the mere fact that the propounders of the will were negligent or grossly negligent in in not complying with the requirements of section 63 of the indian succession act in proving the will they ought to have that should not deter us from calling the necessary evidence in order to satisfy ourselves whether the will was duly executed or not after holding so they in fact that there is that is where i had one aspect of this judgment i have some some reservation that is probably presumably both the attesting witnesses were simultaneously present in that case that is why the only attesting witness who was called for proving due execution could not or did not say that i have seen the attestation by the other attestor also invariably that will that is the usual practice both the attestors will be present for the this attesting witness did not prove that who they the division budget through justice mc chagla hold that the propounder was grossly negligent in not proving the ingredients of the section therefore that will not that should not defeat the wishes of the attestator therefore they called for a finding from the lower court and i don't know what happened thereafter probably the will might have been appalled because that was they had already given their mind now this is the principle which you find in section 87 of the indian succession act section 87 of the indian succession act reads test testators intention to be effectuated as far as possible the intention of the testator shall not be set aside because it cannot take effect to the full extent but effect is to be given to it as far as possible that should be the endeavor of every court dealing with a will so instead of straight away discarding the will as not properly proved the bench called for a finding from the lower court yes we pass on to question number 31 what you had said you can explain that but you had already explained that armchair rule of interpretation yes that question is where where did you come across this principle who who laid down the yes the armchair rule was originally set out in boys versus cook boys versus cook 1880 14 chance there is chance reduction 53 where the high court of judges of england and wales stated that the court may place itself in the testators armchair and consider the circumstances and consider the and the circumstances by which he was surrounded when he made his will to assist the court in arriving at his intention this is the arm the the this is first propounded by the high court of england and the wheels the above rule which is reflected in section 87 of the act say indian succession act was followed by the supreme court of india in vengadha jala yengar versus tim majama air 1959 supreme court 443 3 judges that's why i said that this 59 decision is a is an encyclopedia regarding the law pertaining to wilts what is the citation i will post it in the proper year 1959 supreme court 443 3 judges and well vengadha jala h vengadha jala yengar if you if you look at the the digest you will not find this decision because you will have to find for h only if you locate it you can find this decision you go for a vengadha jala yengar you won't find this it is the problem with our digest digest nowadays it is online so it's not all that difficult then it was followed by several other rulings of the supreme court that is 2009 11 sec 33 2009 volume 11 sec 33 again there are kerala decisions also then yesterday one doubt was raised by somebody i don't remember who that when there is a registered will i am not dealing with the revocation of will which is covered by section 70 of the indian succession act somebody asked a question when there is a registered will can it be revoked by an unregistered will yes it can be it can be because for revoking a registered will you don't require an unregistered will itself because registration itself is optional not compulsory in the case of a will therefore and the section 70 if you read section 70 of the indian succession act pertaining to cancellation of the revocation of will the no unprivileged will or court is ill nor any part thereof shall be revoked otherwise than by marriage this is not the revocation by marriage is not applicable to hindus buddhists six and jainas because of the exclusion under schedule three read with section 57 on the yesterday i had articulated on that aspect because under section 69 of the succession act if a testator after having executed a will marries that itself revoke the will under section 69 but that is applicable only to indian christians okay not not to hindus buddhists six or jainas why why sir why why sir i am getting it out this is specifically excluded under section 57 read with schedule three of the act you please look into schedule three i will take you to schedule three third schedule third schedule gives which all sections which all sections in part six of the indian succession act are applicable to hindus buddhists six and jainas in in those sections 69 is conspicuously absent 69 is the section which we invalidates a will on account of marriage of the testator then therefore i will give a citation of the kerala i court that a you even if an unregistered will has been executed it can be revoked by because the wording of section 70 the wording of section 70 70 no unprivileged will or court is ill nor any part thereof shall be revoked otherwise than by marriage as is not applicable for hindus six and buddhists or by another will so it can no another will or court is ill or by some writing declaring indent it can be revoked only by another will or some writing or declaring his intention because it should have all the attributes of a will but there's some misconception that if it is a registered will it can be revoked only by a registered another registered will no can be revoked by another will for some writing saying that because it is an ambulatory document we saw yesterday a will is an ambulatory document the the testator has got the right to change it at any time before his death that is why it is called an ambulatory document so therefore he should have that right he should be able to exercise that right at any time just because he has executed a registered will should not stand in the way of his exercising this right of ambulance the chronology key of the will will prove itself if it is after the registered will then that will stand otherwise also that is why we had tested correct that is why we discussed a section 88 section 88 of the succession act says supposing there is a subsequent will is executed to automatically revoke the nearer will likewise in the same will if there are two inconsistent clauses inconsistent clauses one destroying the other one diam diametrically opposite to the other the last one will prevail in the case of a will whereas in the case of all other transfers all other documents the first one will prevail but in the case of a will the last one will prevail because of the ambulatory nature of a will the section itself is section 88 then I will give an citation that for revoking a registered will another registered will is not necessary but an unregistered will but only thing is there should be a written will or we return document to revoke a will the recent citation of the K. L. I. Code baby mall Varghese baby mall Varghese versus PS Jacob 2019 two K. H. C. two K. H. C. one double seven by Justice Omar Raja who is a sitting judge of the L. I. Code then somebody asked me some words on that is not on on on in our topic but then if you want to know the Indian Christians are exempted Muslims are exempted from from applying for probate etc because the exemption part six does not apply to them that is why yesterday I told you in the case of Muslims they can execute an oral will only other person other than a Muslim who can execute an oral will is a privilege reveal a privilege reveal executed by a person who a bar a person who is an actual soldier soldier engaged in actual warfare etc such persons alone can execute a privilege reveal they there it need not be document written document written will can be oral will also otherwise all other unprivileged will should be in writing another reason for saying that how will you prove section 63 the requirements of section 63 if it is oral for proving section 63 it should be written somebody executing the will testator executing in the will putting a signature or mark to the will or asking somebody to put his signature for and on behalf of the restater or etc so or a testator acknowledging his signature to an attestor and getting the signature of the attestor in his present that is attestation one of the modes of attestation these are all these all will be impossible if it is an oral will in the case of Christians also they they they were not exempted from obtaining a probate but then in in for the sake of for the entire kerala territory an amendment was brought to the Indian Succession Act Indian Succession Act Kerala amendment 2000 that is 1996 with effect from 14 3 1997 Indian Christians in Kerala were exempted from executing a for asking for a probate of a bill subsequently the central legislature also stable in the Indian Succession Amendment Act of 2002 by which to with effect from 27 5 2002 the entire country all Indian Christians in entire country are now need not apply for probate for for a will and the distinction between probate and letters of administration is in the a probate can be applied for only if your the testator has appointed an executor the testator has appointed an executor under the will you can you cannot apply for letters of administration you can only apply for a probate otherwise you can apply for a letters of administration either with the will annexed or without the will annexed both are permissible under the act anyway we are not going into those aspects I am not striking to those objects which are you on our topic outside our topic so grateful sir it's it's thank you thank you the listeners are chinna samsaya there is no scope for any samsaya okay I usually tell them if you have no doubts that means you have not understood anything or you have understood everything two things everything you understood here the reverse of here here the letter part is true sir yeah that's correct anyway this is confirmed the criminal straying into civil law how far he has succeeded for you to judge the criminal mind is the most devious one so you will be thinking of the right point not the wrong point so we have to look at it from that aspect so grateful sir so grateful sir we are immensely indicted and there is a lot of take home today and even yesterday but I could not completely understand that yesterday's session I was just watching and I honestly request honorable sir to share the platform with us in Christi Jayanthi college in Yasambala may be a criminal or a civil thing and I request Vikas Chathir sir to share the number of honorable sir I don't know why Shyam Bhatman is not present he would have he he's a Shyam Bhatman Mr. K. Vijayravar usual attendee yes he don't fail we are addicted we are addicted to the South Indian talk but they are all assimilated for having the criminal side of yours yes true I see true but today you have not seen that so that's what I'm saying they are used to that you should come with a criminal better mind sir this is by Amrita Das does the will have a limitation period but does the will have a limitation period yes if you want to apply for probate or letters of administration there is no period of limitation prescribed by the limitation act therefore courts have taken the view that the residuary clause under the limitation act the last article will govern therefore within three years of the will but very often the party may not be knowing whether a will has been executed or not so three years from the date of knowledge can be safely applied oh there's a ruling on the Supreme Court also if you want I will give you the citation one second I don't have right now there is there is a question can a minor sign as attested witness this I think I answered yesterday I answered yesterday because a minor can be a witness a minor if a minor can be a witness competent witness why not he figure as an attester but only thing is he may not be able to prove due attestation prove due execution because he of course he is a competent witness within the venue of section 118 of the Indian Evidence Act only thing is before examining a minor the court should conduct a what do you what do you call a what is that expression they say natural consequences of the act under the under the under the oath sack it is a voyeur dire examination there should be a voyeur dire that's a French word okay meaning to speak the truth it is unlike unlike the usual words it is not Latin the French word which means to speak the truth therefore the court will have to ascertain whether this witness is having the testimonial competence testimonial competence that is the the ability to speak the truth and then both will be administered only if the witness child witness is about 12 if 12 or above if it is below 12 both will be administered only if the court finds that after lawyer dire examination court finds that the witness not only knows the duty of speaking the truth but also the nature of oath nature of oath is if he does not speak the truth he will be hauled up for perjury that the witness would know the consequence of not speaking the truth the nature of oath if the witness knows even though below 12 years then the court will administer oath otherwise below 12 no oath is to be administered about 12 invariably oath is to be administered and no oath is to be administered to an accused person unless he is in the witness box as a defense witness because of section 4 2 of the oath sack 1969 there is another question a relation to testator can be a witness to the will definitely definitely but he should not be a legality exactly that's it then 67 will will catch him section 67 of the success night will catch him when a daughter is collecting jewelry from bank locker according to the will should it be in front of other lr's siblings etc that's all practical practical some practical question yes because ordinarily no if she is the legality in respect of the jewelry if she is the legality in respect of the jewelry yes he need not obtain it not obtain the consent of anybody else that's correct the last question will be how can the legality prove the oral slash privilege when legality yeah oral wills we have not come across to be frank because that is something pronounced orally by a say a javan on the war front maybe made to another friend who he may be at the at the verge of dying anticipating imminent death he may say that this is my last will wish please convey it to my wife and children family so that is only by word of mouth so it does not require all the ingredients of the sections I gave you the yesterday section 74 or 70 etc oral will prove it in fact this is a very elaborate subject the testamentary disposition is a very elaborate subject there are how many there are very many types of wills about 12 types of wills there are 12 types of wills if you if you want me to scare you can give you I can give you the names duplicate will double will holograph will in the own handwriting of the restator joint will mutual will in fact decisions then my mystic will mystic will non-cooperative will prenuptial will post nuptial will parliamentary will unprivileged will which we we very often come across privileged will 12 types of wills are there we have taken all the questions sir and yes yeah thank you sir it was a pleasure as you hearing the insights from you and that's what Ravi kajar also endorses he says your lectures are so good to hear and he says thank you thank you and it's always a pleasure hearing and I can say that since we have started first time on the civil side of your sessions gradually people will understand that you are the you are just like a coin two sides of the same coin and both have the equal value to be enjoyed for all times to come but both cannot see each other one cannot see each other they cannot they cannot see each other but they coexist yeah there are two sides of the same coin we have to learn to live with it yeah very often Bench and the bar is said to be two sides of the same coin and they say rider they cannot see each other they say the judge who gives the relief is is always into the best I used to say is a one judicial officer one said with every judgment a judge gets one sure enemy one who who is who loses and a doubtful friend okay the person who wins before you need not necessarily be your friend they come they advocate me say oh it's not because of the merit of the judge we won the case my argument that's correct that's correct so thank you sir it's always a pleasure connecting with you we will keep on sharing the platform with likes of professor mohan kvg now frame sham and all of those participants who are watching us those who have missed the webinar they can always like share subscribe to our channel and they can have the earlier sessions also just a long one long with us thank you