 Ram Kumar who is his own style has shared the questions which we have shared in the groups and we normally keep on talking about the wills but as to whether they are different types of wills because normally as a common man we always speak of will and with the wills like when just Ram Kumar and we had narrowed down the topic on the wills and I sent him a message they said he said that the will should be with a capital W. I said so that W will always be there because they say once there is a will there is a lot of will of the people to support that person who has got a will. So that was all in the lighter way and the essentials for a valid execution of an unprivileged will. As the today's session and this is Ram Kumar we were always taking sessions which were touching on the criminal aspects. We all know that this is Ram Kumar in a subtle manner of in a civilized manner of expressing the questions in the right manner. We requested him to take a certain session on the civil side and again in the lighter when he said yes the colors of this civilized aspect should also come forth and we all respect his knowledge and his way of expressions and before we take the questions which we have shared today fortuitously we don't have regular participants like Mr. Rao and Mr. Prem. So the questions will be shared between me and Mr. Shyam. So as usual I will request Mr. Shyam to just give a brief introduction and then I will take the first question. Thank you because it's really a privilege to be back on this platform again and that too with just Ram Kumar sir taking the session. To put it on the lighter way the question for today if I can borrow Shakespeare is die willingly or unwillingly. So we are dealing with testamentary succession and interstate succession and in testamentary succession we are narrowed down to unprivileged wills. So this is the importance of dealing with wills is that you don't have the order around to make a comment on it because the will is becomes or comes into forefront or disputed race only when the testator is no longer and the legatist would like to have a difference of opinion on challenging the will. We have a third of decisions which would say that the testator it should be ensured that the mind followed the pen so that the execution of the will is proper and it has to be established and sanctity is attributed to the will because it's the final wish of the testator. Equally split are the rules of evidence to make sure that there is no misuse or there is any miscarriage of justice and often the Supreme Court has said that you should put yourself in the armchair of the testator to know or think about what exactly went in the mind and just because he is a disinherited son or daughter that just by itself does not mean that he is not as well. I mean there are different nuances he will be touching upon the most important ones today and he have the best person to talk about it just as we run from us sir. So I don't want to take your time sir over to you directly. Thank you Mr. Shampatman. Good evening friends. A confirmed criminal is hereby attempting to become civilized. How far he will succeed is for you to judge. In this lecture we are concerned only with the unprivileged wills and that too with regard to execution. In the lecture tomorrow we will deal with the aspect of mode of proof. How to prove a will? Here how to execute a will today? What is the distinction between privileged will and unprivileged will? Many of you or at least non-lawyers may not be knowing. A privileged will is one executed by a person who is a soldier employed in an expedition or a soldier engaged in actual warfare or an airman employed in an expedition or an airman again employed engaged in actual warfare or a mariner at sea. These are the five categories of persons who can execute a privileged will because they are privileged by virtue of the function, by virtue of the service they render at the war front or in places like that. So you can't expect the usual modalities of executing a will but we are not concerned about that category of will today because the majority of the population is concerned with the unprivileged will that is will executed by persons who are not so privileged. Sections 65 to 67 and 72 of the Indian Success Act 1925 deal with privileged wills. So we won't be dealing with those four sections An unprivileged will is one executed by a person other than one belonging to the above categories soldier, airman, etc. engaged in actual warfare or in an expedition or a mariner at sea where a person called the testator executes a will before his death with regard to his property then upon his death as Mr. Shyam mentioned the properties will will will not devolve as per his personal law of succession or inheritance governing him but instead of instead of the personal law the his inheritance will be decided by the prescription in the will executed by him that is what we call testamentary succession. Now we shall we go to the questions? Are you taking the first question sir? Yes. What is meant by testamentary succession? As I already mentioned testamentary succession is the succession or devolution of properties of a dead person as per the prescriptions under a will executed by such person such person is called a testator and the document which he executes is usually called a will and testament who we go to question number two. So what is the law which governs testamentary succession in India? In India the law which governs testamentary succession is the Indian succession act 1925 a pre-constitutional law even now it governs all Indians. Yes. Which part of the Indian succession act would be a corollary to that testament? Part six part six of Indian succession act deals with testamentary succession the all other part do not deal with testamentary succession this is the part which part six of the Indian succession act dealing with testamentary succession. There are altogether 23 chapters from chapters one to 23 in part number six which covers sections 57 to 191 of the Indian succession act all are covered by part six of the Indian succession act testamentary succession. Yes question four. So three is there okay okay what is the meaning of will under the Indian succession act 1925? The Indian succession act defines the expression will under section two h of the act a will is defined as follows will means the legal declaration of the intention of a testator with respect to his property which he decides to be carried into effect after his death. So a will even though he is executing a will with regard to his properties to how they should be dealt with after his death the will actually takes effect only from the native death of the testator. Then section three clause 64 of the general clauses act 1897 also defines a will as follows will shall include a codicil and every writing making a voluntary posthumous disposition of property posthumous disposition that is the property is disposed of after his death which is called posthumous disposition of property. Now the word will is the translation of the latin word voluntary which was the term used in the text of roman law to express the intention of the testator voluntary in the intention of the testator. You may refer to an important decision of the Supreme Court in paragraph 10 of Umadevi Nambiar versus TC Siddhan 2004 volume 2 SCC 321 corresponding to AIR 2004 Supreme Court 1772 and in fact we conducted the case before the courts below until it went up to the Supreme Court by Dr. Siddhan's wife. Oh yes yes yes yes question number five sir whenever somebody writes a will you say it as testamentary succession so is there a distinction between will and a testament yes there is a distinction a will is usually called along with the testament as you rightly said will and testament this is the last will and testament of so-and-so such as a person why do you call it a will and testament now it is an instrument made in contemplation of death therefore a will is a testamentary disposition of a person real property real property means land and other removal property and a testament is an instrument for disposing of his personal property in law we all know real property is a movable property and personal property is movable property so movables and intangible properties are taken in by testament when you say will and testament it takes in both the movable and movable properties so whenever and the person who execute that document is called the testator yes question number six what is the court is it yes section 2b of the indian succession act 1925 defines a court is it as follows court is it means an instrument made in relation to a will and explaining altering or adding to its dispositions and shall be deemed to be deemed to form part of the will that is the definition of court is it under section 2b of the indian succession act in fact court is it is like any other will which is also it it has to be executed with all the formalities executing a will in fact the supreme court in Bhagat Ram versus Suresh a year 2004 supreme court 436 a year 2004 supreme court 436 has observed that a court is in for its validity must be executed and attested in the same manner as a will so court is it is nothing but a will only maybe very often it is executed after the execution of a will or at the end of a will therefore court is it may be a separate document but it has to be executed with all the requisites of essentials of a valid will executing a valid will question number seven court is it cannot exist on its own it should be attached to a will not necessarily it can refer to the will it can refer to the will already executed it can because as the definition goes explaining because as you rightly said it presupposes the existence of a will explaining and altering or adding to the dispositions under a will is a court is it but if you are ex if you want to for example a testator might have forgotten a particular aspect in the will therefore he may execute a court is it for which also the formalities are the same it can add to explain or alter the the prescriptions in the will that is called a court is more or less like an addendum and an irratum it can contain the will it can it can even effect an irratum correct sir now the next question deals with the indian muslims can they make an orally will of their immobile properties now if it is open to a muslim to execute an oral will this is because section 58 one of the indian succession act declared that the provisions of part to six of of the indian succession act does not apply to succ to a testamentary succession to the property of Muhammadance therefore in the case of muslims the law applicable to them in the matter of executing a will which is called a wasiyat in their in their personal law wasiyat is their personal it is their personal law which governs them not the indian succession act they are exempted from part six while all others can execute only a written will muslims can execute an oral will likewise a privileged will also can be an oral will because by virtue of the position they occupy at the forefront etc otherwise all wills have to be especially all unprivileged wills can be has to be in writing as per the but as per the personal law of the muslims a muslim cannot bequeath more than one third of the surplus of his estate after payment of the funeral expenses and debts any because made in excess of the one legal one third cannot take effect unless unless the legal is concerned to the same after the death of the testament this is the the special provision in the muslim law another important attribute of wasiyat is that it need not be in writing and can also be oral as i already mentioned yes question eight are not all the provisions that is section 57 to 191 of part six of the indian succession act 1925 applicable to hindu's buddhist six and jains i already said that part six contains 57 to section 57 to 191 but all these provisions are not applicable to one sex particular category of person namely hindu's buddhist six and jains by virtue of section 57 of the indian succession act only those provisions of part six as are shown in schedule three the act contains a schedule schedule third schedule only those provisions which are shown in the third schedule alone are and that too subject to the restrictions and modifications specified in schedule three alone are applicable to hindu's buddhist six and jains yes question number nine i think the next question is almost answered which sections of part six of the indian succession act 1925 are excluded in their application to hindu's buddhist six and jains yes i will i will now refer to section by sections which are excluded section six 16 relating to testamentary guardian they are excluded then section 65 to 67 i already told you pertain to privilege revils again section 72 is also relating to privilege revils then section 69 revoke the marriage of the testator when the testator marries it automatically revokes the wheel executed by him earlier wheel executed by him that is also not made applicable to hindu's buddhist six and jains then section 91 a general because include any property within the power of the restator is excluded from these four categories of persons then section 92 where there is default in the disc in the direction for appointment the objects in the will to operate as a gift that portion also does not apply to these four categories again section 93 effect of be equals to a is etc of particular person without qualifying those also does not apply to hindu's buddhist six and jains then section 94 effect of be equals to representatives etc of a particular person not applicable 97 effect of words describing a class added to the request in favor of a person when you mention about a class to a person that is not applicable to these four categories then section 99 mentioning meaning of specified relations referred to in the wheel meaning of specified relations that's not applicable to hindu's buddhist and six and jains section 100 relatives denote only legitimate relatives feeling which it will include the person who acquired the reputation of such relative not applicable to these four category and section lastly section 118 when does the power to access to be quick properties to religious or charitable uses this section even without excluding has been struck down by the apex court in john volle metham versus union of india 2003 volume six sec six double one 2003 volume six sec six double one where it was held that it is violative of articles 14 15 25 and 26 of the constitution of india and this portion was struck down by the supreme court way back in 2003 it was a case case from kerala that we pass on to question number 10 why is it said that except in the case of privilege wills a hindu buddhist sick or jain cannot execute an oral way that is because by virtue of restriction number one in schedule three to the indian succession act the above persons cannot be quick property which they cannot alienate indian values see all these categories under the contract act and transfer property act they cannot alienate properties interact orally interviable interviable meaning during their lifetime during their lifetime if they cannot alienate properties orally they cannot execute a will also orally that is because of the restriction number one in schedule three of the indian succession act that is why just as an oral sale is not permissible and oral will also is not permissible one second finally excuse me i'm sorry i'm sorry i'm sorry yes sometimes while discussing will there is also god will that one should have a break yes sir now we were discussing that yes that i completed because of the restriction number one in schedule three a person other than a muslim or a person executing a privilege reveal he cannot execute an oral will because if he cannot execute a sale deed intervivors likewise he cannot execute a normal will also yes question level restriction number 11 would be a bit difficult for me but still i'll start we'll be i mean i think i'll share with because also in the sense like it's latin maxims and yes will test will and will and testament will and testament means you have to learn some latin maxims at least seven are being discussed here like i started off saying sir latin is great to me but still i'll start the first one is testatum yes testatum end up testatum end up testatum is voluntary just nostril just a sentientiel sentientiel do you go to his post mortem swam fareed well it yes you my lord manage it oh thank you sir thank you sir it it only means a testament is the just expression of our will concerning that which anyone wishes to be done after his death or a testament is the legal declaration of a man's intentions which he wishes to be performed after his death this maxim gets statutory recognition in the definition of will under section two h of the indian success net then comes second leave leave something for because also thankfully that latin maxim is slightly shorter yes testamentum only morte consumetum consumetum every wheel is completed by the death of the testator a will cannot operate cannot take effect when the testator is still alive it takes effect only from the date of death of the testator yes third third is volunteer space squad in testament script of valid yes the intention of the testator gives validity to what is written in the will this maxim gets statutory recognition in section 87 of the indian success net which says the testators intention is to be effectuated as far as possible in fact we will come back across a for just 1949 decision of the bombay echo speaking through just chief judge is mc chagla where this principle was given effective and in very many high courts the same 49 bombay is being followed because when on some hyper technicality the court is about to say that the will is not properly executed every endeavor shall be given to to effectuate the intention of the testator because here is a person who is not alive to say about the the dispositions made by him therefore the court that is why the court is getting into the armchair of the testator and deciding the question so every every endeavor shall be made to effectuate the intention of the testator yes fourth yeah uh valentice uh test spotless habit interpret any let them it benignum i thought sir has given us that uh tongue questions today the will of the testator should receive broad and liberal interpretation same same principle that is again you get statutory recognition of that principle in section 87 of the indian success net the intention of the testator should not be allowed to be defeated by the courts by by a process of interpretation yes fifth testator is aljima volunteers as perimplanta second um where um indian shenam jen shinam swam swam or volunteers aljima testator is as perimplanta second um where um indian sheniam swam same principle the last will of the testator is to be fulfilled according to his true intention his true intention should be should be effectuated by every court trying to interpret a will instead of finding out technicalities to defeat his intention section that is why i i said in nine a year 1949 bombay yes his chief judge is jagla as jagla and i think it is gejendra ghatkar both these judges great judges they have evolved a principle giving effect to these these principles by saying that if you if on some technicality the job of the court is not to strike down the will as not validly executed every endeavor should be seen done to see that the intention of the testator is fulfilled by the courts because he has he is no not alive to explain his will therefore court is stepping into his shoes and trying to interpret trying to gauge his intention his mind yes yeah testator is ambulatoria ambulatoria est usur at modern or volunteers testator is est ambulatoria ask add extreme vitay extreme sir after reading all these maxim i'm feeling that that they say that the lawyer should speak with a pause after speaking all these maxims i think his style of argument will automatically yes it will get slowed down with that just get slowed down no it only means that the will of the testator is changeable right up to his death or the testator may change his will at any time that is why it is always said that a will is ambulatory in character will use ambulatory in character because anytime the testator can change his will his max maxon gets recognition in his statutory recognition section 62 of the indian success not yes ambulatory and ambulance do they have some connotations simultaneously ambulance ambulance ambulatory ambulatory i mean it it is liable to change it goes on changing is liable to change he can always change it until his last breath until his last breath he can go on changing supposing it is not static it can change even in the same will if an earlier there are two conflicting clauses mutually conflicting clauses unlike in the case of ordinary instruments ordinary deeds the principle of interpretation is that the earlier conflicting clause will prevail and the latter conflicting clause will will have to be rejected but in the case of a will there is an objection there is a difference the last one will prevail when there are two conflicting clauses one conflicting or one diametrically opposite to the other the last conflicting clause will prevail that is only that in wills alone we will find this exception in all other situations the earlier clause will prevail in the last clause will be dismissed as a false or demonstrative demonstrator yes last test of end up come do in the same book nesha recognition recognition to fight to fight recognition repair inter ultimum radium s or sickest come to intercept recognition repair in yodem testamento when two conflicting wills are found the last one will prevail so as so as it is when two conflicting clauses in the will child when there are two conflicting clauses the last clause will prevail there are supposing there are two wills the last will will prevail likewise supposing there are two conflicting clauses in the same will the last clause will prevail this is an exception to the normal rule applicable to all deeds all instruments where the earlier clause the earlier clause will prevail but in the case of a will the last clause will because it is ambulatory in character the the testator can always change his intention changes mind so that is why these these legal doctrines are recognized by courts yes now over to the about the time this the way we were taking the Latin maximum I am reminded that one is going very smoothly then they are speedbreakers they are so much sometimes you feel whether that whether they are the pitfalls or the pitfalls or the other speedbreakers in a lighter way or to have its own expression and abhi once had said these difficult one difficult word like this was coming time and again it was a criminal case the the lawyer used to pronounce in a different way and the judge he had a different slang of English perfect pronunciation he time and again used to say you should pronounce properly ultimately it was around 10 times when that word used to come and he said in Punjabi he said it means it has again come you are you are incorrigible yes yes section 59 of the indian succession act enumerate the persons who are capable of making a valid will the said section reads i'll read the section 59 persons capable of making wills every person of sound mind not being a minor may dispose of his property by will there are explanation there are a few explanations explanation one a married woman may dispose of by will any property which she could alienate by her her own act during her life then explanation two persons who are deaf and dumb or blind are not thereby incapacitated for making a will if they are able to know what they are doing then third explanation a person who is ordinarily insane may make a will during interval in which he is of sound mind that is why we very often we say during the lucid intervals an unsound mind during his lucid intervals can make a will as in the case of committing crimes also if he commits a crime during his lucid interval he won't get the protection section 84 of the indian penal code then explanation four no person can make a will while he is in such a state of mind whether arising from intoxication or from illness or from any other cause that he does not know what he is doing there are a few illustrations given first illustration is a can perceive what is going on in the in his immediate neighborhood and can answer familiar questions but has not a competent understanding as to the nature of his property or the persons who are kinder to him or in whose favor it it would be proper that he should make a will they cannot make a valid will he is incapable of making a just assessment of his property etc and to whom he should devolve in a big question with his property a executes an instrument for putting to be his will but he does not understand the nature of the instrument nor the effect of its provisions this instrument is not a valid will so he is incapable of understanding the the implications of the document a being very feeble and debilitated but capable of exercising a judgment add to the proper mode of disposing of his property makes a will this is a valid will not understanding his debility you see in therefore a now what do you call a person who is not a sound mind a person who is of who is not a sound mind is usually called non-composed mentees non-composed mentees means a person who is not a sound mind yes question 13 is of practical value in the sense like the points to be born in mind before proceeding to make a will yes you are absolutely right when a when a person is about to make a will he will call the scribe or he will go to the scribe and he will have some relation with him who is dependable person and he they all what all things which should enter the mind of a scribe or a document writer while preparing a will this is the this is the answer one every person whether male or female and who is of age of majority capable of making a will as per section 59 of the Indian success next which I refer to now can make a will that that is a fundamental principle then a will should be in writing of course a privileged will by its very nature need not be in writing similarly a will by a musulman can be oral but it is even in the case of a musulman it is safer to make a valid will written will then third is it is desirable to ascertain the name description identity and geographical location of the mobile and immobile properties owned by the testator you should have a fair idea about the mobile and immobile properties which is owned by him then the details of the specific properties if any which the testator decides to dispose of during his lifetime to specific persons if any otherwise then the proposed will may be ascertained so apart from giving properties to the legates which is proposing to be quick he may be desires of alienating properties to certain persons during his lifetime other than through the will though he should be aware of those properties also specific items of properties which he does not want to be quick as per a will that also you should have then the name description identity and geographical location of the specific properties and the specific person to whom the stator decides to be quick is assets with that and the and relationship if any of such persons with the testator these are also to be ascertained because which all properties he wishes he wishes to be quick to which all persons what is his relationship with those persons all these things should be ascertained so that the appropriate instructions can be given to this crime to the document writer while preparing the will if in case he's engaging a document writer no no need at all to have a document writer for for writing a will you can write a will in your own handwriting on a piece of paper though no stamp duty is available no registration is necessary it need not be registered registered is only optional so you can write down your will in a piece of paper only thing is the requirements of law should be satisfied namely the execution and attestation that's all otherwise any and a will written in your own handwriting manuscript will is called a holograph will holograph will then if the movable immobile properties of the stator are in one country and the stator in another country where his movables and some immoables are to be found it is advisable that he executes two separate wills one relating to his properties in the country of his domicile and another relating to his property where situated abroad so it is desirable to have two separate wills instead of clubbing all these properties in one single single instrument then the personal law by which the test is governed may be ascertained the language of the will can be the language usually spoken and understood by the stator very often when we attack a will we very often find the language of the document writer described which may not be the language of the stator so it is very often argued while attacking a will this was not the language of the stator he was using very simple simple vernacular language he never used such a technical expression so it is not his will that is one one way of attack so ordinarily it is his language to be adopted the will can be drawn upon any ordinary paper no stamp duty is available in respect of will the rules regarding execution and attestation should be scrupulously followed that is the only requirement for a valid will registered to the will is not compulsory but is only optional even if the will is admitted or disputed or denied or called in question by the opposite party the propounder will have to prove two things one the propounder means the person who sets up the will he will have to prove two things the testamentary capacity of the stator that is the he was the stator was in a sound disposing state of mind then the execution and attestation of will new execution and attestation of the will this also will have to be proved by every propounder who sets up a will or who claims properties and reveal we pass on to question number 14 is there any distinction in the matter of mode of proof as between will and other documents required by law to be tested yes is an important question there is a distinction an important distinction in the matter of mode of proof between a will and other documents required by law to get tested should be borne in mind by every every person as per section 68 of the Indian Success Indian Evidence Act every compulsorily attestable document including a will can be used in evidence can be used in evidence only if one attesting witness only one attesting witness at least has been called for the purpose of proving its execution if there be an attesting witness alive and subject to the process of the court and capable of giving evidence but the proviso to section 68 contains a relaxation to the above rule in the case of all compulsorily attestable document other than a will so in the case of a will no relaxation at all but in the case of all other compulsorily attestable document the document is registered there is a there is a relaxation in the proviso to section 68 if a if such a compulsorily attestable document has been registered as per the provisions of the registration act 1908 then the main part of section 68 need not be complied with namely calling at least one attesting witness but in the case of a will there is absolutely no relaxation the the requirements of main part of section 68 of the evidence act will have to be scrupulously followed in the case of a will because there is the executant is not allowed to confirm or deny the document so that is why the law is very strict then question 15 sir we earlier dealt with what is to be born in mind when proceeding to make a will now during the process of making the will a valid execution how it can be ensured in a ramp and privilege what is the legal mandates for that yes now section 63 of the indian succession act is the is the section for proving the execution of a will now in fact in the case of other documents or other instruments which are compulsorily attestable execution is different from attestation in the case of all other documents execution is different from attestation the signing of the document is mainly the execution but in the case of a will even attestation is included in the expression execution see the title of section 63 itself execution of unprivileged reveals that takes an attestation also unlike other instruments every attestator not being a soldier employed in an expedition or engaged in actual warfare or an air they are excluding the religious will or in an or engage in an actual warfare or an airman so engaged or employed yeah or a mariner at sea shall execute his will every attestator shall execute his will according to the following rules roof clause a the attestator shall sign or shall affix his mark to the will or shall be signed by some other person in his presence and by his direction that is signing signing of the will either by the attestator or by some other person on his direction then the signature or mark of the attestator or the signature of the person signing for him shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will the the signature should not appear in some corner of the paper he should show the placement the position of the signature or mark should be such that it should appear that it was intended to be put as a as a in acceptance or acknowledgement of the the prescriptions under the will so it should be even the location of the signature placement of the signature has got some importance then see the will should be attested by two or more witnesses who has seen the attestator sign or affix his mark to the will or has seen some other person sign the will in the presence and by the directional attestator was or has received from the attestator a person acknowledgement of his or the signature of such other person and each of the witnesses shall sign the will in the presence of the destater but 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 now the testator has put his signature or mark as contemplated by section 63a the act only after the contents of the writing have been containing the his his intention regarding devolution etc have been explained to him or understood by him this is because it has it is not possible to authenticate the declaration before it has actually been reduced to writing something which is non-existent cannot obviously be authenticated you may refer to a few decisions you know on this aspect a year 1985 aloha about 220 a year 1986 aloha about 220 then a year 1974 Andhra Pradesh 13 they are there are beautiful discussion contained beautiful discussions regarding the why such a strict prescriptions have been made then a year nineteen seventy four Andhra Pradesh page 13 a year 1982 Calcutta 236 then regarding the position of the signature the signature or the mark of the destater should be so placed that that it should appear that it was intended thereby to give effect to the document to the instrument as a will that is yamnum on to be number ebema devi that is 2009 volume 4 scc 780 2009 volume 4 scc 780 three judges of the supreme court have applied their mind to this aspect of the execution the signature or mark should find in such in such a such a place it should be so placed that it should appear that it was done with the necessary intention of executing a will not and some at some some remote corner of the paper the propounded will was not accepted as duly executed within these cases in these cases the propounded will was not accepted because the signature was not found at the appropriate location place site is where it should have been there a year 2020 noc 456 kerala corresponding to 2020 k hc 3372 then there's a madras decision muttuleshmi versus tangaraj 2020 k hc 3335 corresponding to a year 2020 noc 417 madras in these decisions the the since the signatures were not for the marks were not found at the appropriate site us the court did refuse to accept the document as the valid will because anything can be fabricated as a will because that person is not alive to confirm or deny that is why the courts apply this these strict rules question 16. Yeah on the request and direction of the testator his nephew affected his mark to the will at the appropriate player a place where the testator should sign there are two testators also to the will in a suit for partition the will is propounded by the legacy one of the test testators give evidence in support of what transpired in the making of the will the opposite party argued that there is no due execution of the will can the opposite party succeed what happened we have seen the definition we have seen section 63 now on the request and direction of the state level his nephew affects his mark to the will at the appropriate place where the testator ought to have signed there are two and so in a suit for partition the will propounded by the legacy one of the attesters gives evidence regarding what have in support of what transpired in the making of the will the opposite party argued that there is no due execution of the will what have you got to say we have read the definition now can you please screen share that chart which has which I have given you and given you a chart in fact one important aspect in the definition has been omitted here or there is a there is a mistake committed by the either the scribe or by the testatory himself because the state will can sign the document the state will can put a mark at the instead of signature but if somebody else is asking somebody else he can only ask that somebody else to sign that somebody else cannot put a mark see the chart I have given I have I have the the section section 63 has been dissected I have dissected section 63 to make it more understandable section 63 has been bisected into its component parts so that if you can screen share that is sharing see now please go through the execution execution of an unprivileged will section 63 the testator shall sign the will clause a the signature of the testator shall be so placed and that it shall appear that it was intended thereby to give effect to the writing as a will that is clause B or the testator shall affix his mark to the will instead of signing he can affix his mark to the will clause A that the mark of the testator shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will clause B so he can either sign the will at the appropriate place or he can put a mark in the will at the appropriate place both are execution part of execution or the will shall be signed by some other person and by the direction of the testator instead of the testator himself signing or putting his mark he can ask some other person to sign the will only to sign the will mind you that some other person cannot put a mark that prerogative is available only to the testator therefore when the testator ask somebody else to sign the will and if that other person puts a mark it is not valid execution that is precisely what happened in our problem so that that person put a mark instead of signing that is see the next portion the will shall be signed by some other person in shall be signed by some other person by the directional testator clause A the signature of the person signing for the testator shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will then the will shall be now coming to the attestation the will shall be attested by two or more witnesses called the testator attesting attestors each of whom has seen the testator sign each of the attestors should see that the testator has signed or seen the testator affixes mark instead of signing each of them should see the testator affixing his mark or has seen some other person sign the will see in the case of some other person putting mark is not given there are the right to put mark is not given he can only sign some other person sign the will in the presence and direction of the testator or received from the rest of the personal economy so this is a case where this the other person who who was requested by the testator to sign the will he instead of signing the will he put his mark so that is not valid execution then I will put one question out of the box which is not there in the present and direction of the testator his brother law that is wise brother put the signature for and on behalf of the testator at the appropriate place one of the attestors present signed as such in the presence of the testator the brother in law of the testator took the will to the owner of the next door apartment and on his request and acknowledgement that will was signed by the owner of the apartment see I this is the problem testator signed the will one attestor was present along with the testator he also signed the will because he has seen the testator signing the will then the that attestor took the will document to the next door apartment next door apartment and and he told the owner that this is the will executed by so and so I have put as put my signature as the first attestor you are requested to put your signature as the second attestor he reads out the prescriptions under the will also that person is convinced that it is valid will executed by the next door man so he puts his signature is there any impropriety in such a execution please look into the chart the testator has to say that otherwise it is not valid the testator received from the testator a personal acknowledgement the personal acknowledgement that it is my will I have executed it I have this is my signature that acknowledgement should come from the testator not from the one of the attestors so to that extent the attestation is bad so every every care should be taken that this other person who is requested to sign as the testator on behalf of the testator should sign he cannot put his mark likewise the personal acknowledgement to the to a testate to an attestor who has not seen the testator signing should be from the testator himself rather the testator should himself go to the next door apartment and tell him see this is my will I executed this these are the prescriptions under the will these are the big quest such as property being liquid to my nephew etc then then he should say that this is my signature I have signed it now you you as an attestor may sign they have one or the other attestors have signed it not for the attestors not for any of the attestors to tell another attestor that testator signed I have seen it no testator himself should make the acknowledgement that is the beauty of the section yes now we pass on to question 70 sir in the other case you mentioned the first witness signed from Calicut yes the bill was taken to Ernakulam the second attesting witness was Justice T. L. Vishanadayya he signed from Ernakulam not at the same place but the attestator who is the wife of T. C. Siddhan that is Arani Siddhan said that it's my signature yes now see see the see the last portion of the section in the chart also right last portion it shall not be necessary that more than one witness be present at the same time absolutely the same time and no particular form of attestation shall be necessary I'll be taking you through a few decisions including 1949 Bombay where the attestor who was examined failed to prove that he had seen the other attestor signing on that short ground the matter of course they did not say that the release has not been validly proved they remanded the matter because of the other principle of section 87 that the the intention of the testator should not be allowed to be defeated by the court therefore in as a court of conscience they allowed the propounder to prove due execution but I have my own reservations about that part of the set of 1949 Bombay as well as all other rulings which say that the one of the attestors should see that other attestors signing that is doing violence to the section section says it shall not be necessary that more than one witness be present at the same time what does it mean yes now we will pass on to question number 70 what is meant by any more attestandy the latin expression very often we come across in this jurisdiction is owners probandi and animal attestandy owners probandi is the is the burden of proof which is on the propounder of the will he has to prove that the will was executed duly executed by a a testator having the requisite state of mind and it was the there was due execution of the will that is the owners probandi which is on the propounder the burden of proof on the propounder then animal attestandy animal attestandy is the animus in the attestor to the will the person who attesting the will should sign the the document in with the intention of attesting the will that is animal intention animal the he should sign the will animal attestandy means he should sign the will with the requisite intention that and knowledge and understanding that he is attesting a very solemn document namely execution of a will that is the meaning of animal attestandy then you may refer to one decision ml abdul jabbar sahib versus mv venkada shatri a 1969 volume 1 scc 573 1969 volume 1 scc 573 a three-digit bench it was observed that it is essential that the witness should have put his signature animal attestandy that is for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgement of his signature he should see this the testator either sign that document or he should receive a person an acknowledgement from the testator that I have signed the will this is my signature you can now put your signature as a as an attestor then only he you can say that he has attested the will animal attestandy with the intention or with the with the with the knowledge and intention of attesting the document the document that question 18 what is meant by attestation yes that is the another important aspect of section 63 attestation means to testify or affirm to be true or genuine or authenticate the execution of the document or instrument by the executant by signing as a will this is called attestation in Babu Singh versus Ram Sahai earlier Ram Singh 2008 volume 14 scc 754 corresponding to AIR 2008 Supreme Court 2485 AIR 2008 Supreme Court 2485 it has been held that attestation of a will should be in conformity with section three of the transfer of property act 1882 with due respect I have my own reservations about these observations attestation is the requirement of attestation is in section 63 itself why do you go to transfer of property act section three of the transfer property act there are also the word at section three of the transfer db act also defines attestation the same same meaning same words same words which you occur in clause 3 clause c clause c of section 63 of the Indian success night same meaning same words and when the same words are occurring in 63 itself why should you go to tp act tp act is for a document for a doc for a transfer document of transfer this is not a document of transfer is not this is not a transfer intervios this is you are executing a will to be take to take effect after the death of the testator so you can call it a transfer how well how does the transfer property act come come in picture I have my own reservations with due respect subject to any one of you elucidating me or enlightening me that decision says the will should satisfy the it should be in conformity with the expression attested occurring in section three of the tp act which contains the same wording as in clause c of section 63 attested in relation to an instrument the same meaning same meaning are formed therefore in my respectful submission that decision does not apply should not apply to a will which is not a transfer intervios transfer property act applies only to documents of transfer really is not a document of transfer it is a document which which which the testator decides to to give to come into effect only after his death and that is with that I think I will close on the question of execution now execution includes attestation also you need not go to tp act for proving attestation attestation is given in clause c of section 63 now next lecture tomorrow how to prove a will it is enough it is not enough that a will has been duly executed how to prove how to prove whenever whenever a will and testament is put forward or is propounded by a person maybe a legati how should he prove that will how can the will be said to have been properly proved before a quote of law that is the next lecture we will have it on tomorrow same time same time 4 30 a couple of questions are there in the chat box and we take that uh burrally has put a question what do you mean by mark putting a mark other than signature see the other than signature that is what this any mark x or any or any any mark for a square or a rectangle or a triangle or supposing a person is in the habit of putting a mark only that mark is enough but if the person who has been requested by the testator to put to sign the signature he has to put his well suppose of course supposing his signature is writing swing supposing his signature is writing swing which which may resemble a mark that is his signature but other than a signature he cannot put a mark which is the prerogative of the testator only because okay amrita has put a question is it possible for one person to write a will for another oh yeah nothing wrong any person can write a scribe is writing many very often they go to a scribe for preparing a will because they are not familiar with the usual phraseology therefore they very often good but actually it is not necessary going by the intense access net you give you give expression to your intention by writing your desire your intention in a piece of paper that is enough if it conforms to the requirement of a will and only thing if it should be duly executed the execution part should be is very strict because especially in the case of underrated will very often after the depth of a person people people fabricate their documents to be the last will of a person very often that is why courts are very strict in but at the same time if the court is satisfied that this is a testament will and testament executed by a deceased person and it should and the some hypertechnicality is put forward court should be should not be an instrument to that court should see that the intention of the testator is not defeated by by such a hypertechnicality sir baswar ajashwari has put a question that's regarding sir your statement that the registration is optional what the first will is registered and the second will is not no problem registration does not give any separate sanctity nothing nothing no particular sanctity section 17 of these registration act does not uh 17 1 does not make it a compulsory it is not a compulsorily registrable document unlike sale deed or other things of value above 100 rupees is compulsorily registered but in the case of a will it falls under 17 b or so where it is optional if he wants he can register the will that's all i think the confusion might have been created because there is a legal this thing that is a registered document can only be got over by another registered document or by a declaration by a court of law that's why we have because in the case of a will it is ambulatory liable to be changed at any time the testator can change it at any time before his death so it that is the the basic quality of a will the therefore he should be able to change his will change his will change the prescriptions under a will anytime he can even execute a codicil the only thing is codicil also should be executed as per the requirements of a executing a will that's all execution attestation can they contain the general or has to be necessarily the specific in respect of properties this by the ishmukh if they are capable of identifying if the the description the description of the properties are so described properties are so described that it is possible to or capable of identity capable of being identified that is enough this is by advocate kanan by way of will whether a testator can give ancestral properties to the proponder ancestral property be given to the proponder yes if the ancestral property you mean undivided property ancestral property can be divided and you see obtained from the ancestors divided or in joint family property if it is joint family property he has got a particular fraction that fraction and that will will operate only so far as his right over the property is concerned sharer co-sharer a co-sharer can execute a will with regard to his fraction of the property that will now if we can put it very simply if you are going to say joint family but he has clarified it's a joint family property joint family property supposing he has got 150 shares supposing he execute a will execute a will with regard to a half of the entire property that will will take effect only with regard to his one he cannot us are his rights over the entire property or a chunk of the property it will take effect only so far as his right of the property is concerned that is my understanding of the law because I am not an expert on this branch of law please correct me if I am wrong today you didn't start the session with the k-weight that's why people are asking more questions that is because some of my friends say that I am I am what should I say I am being re-civilized initially I was a civil lawyer then old wine in a new bottle maybe whatever expression you call it what is the effect of the well not being probated that we'll come tomorrow inside probate probate is not our subject in this in these two lectures the shield probate is not our probate letters of administration all these things are not in our subject because we are only concerned with the execution and proof of a will of an um um um what do you call um unprivileged will execution and proof only probate is something else there are section 212 is there where a without taking probate a a right center the will cannot be claimed by a person then supposing there is a debt due to a debt person letters of succession certificate will have to be applied for all those things we are not dealing in today or tomorrow even tomorrow also yeah this is on the youtube it says can a minor be a witness to a will I doubt minor should be uh and nothing wrong minor can be a witness because minor can be a witness before a court of law if a minor can be a witness before a court of law under section 118 of the uh evidence act even a minor is a competent witness therefore if a minor can be a competent witness before a court of law why not a minor be a witness to a will I don't know but uh witness in what sense attesting witness is it attesting witness or identifying witness there are two types of witness to a will one is attesting witness then at the time of registration there will be an identifying witness we will examine that tomorrow that is whether registration can prove valid execution of a will whether the execution before the sub registrar who registers a will whether that can prove valid execution of a will that is one question on which we have different viewpoints by the supreme court and other icons some a minority view is that even sub registrar can prove valid execution but uh the preponderance of judicial opinion is otherwise sub registrar is there only to register the document he cannot validly prove attest he cannot attest the document he is not a attesting witness of course when the when before registration he will ask the executor the attestator whether this is a document it is a will executed by you he will say yes but from that you can't say that he is he is attesting the signature of the executant etc after getting an acknowledgement about his signature but in there are there is one or two decisions supreme court also that effect in fact in one case both the attesting witnesses were not i like so but why naturally the court was inclined to accept the the registrar's endorsement as per the registration act the registrar's the sub registrar has to make certain endorsement of the document he had made an endorsement that the attestator admitted execution before me and there are two witnesses signing he also signs but those two witnesses are signing as identified he they sign before the sub registrar as a person who has identified the attestator they are not adjusting the attestator's will the will executor by the attestator but when the attestator admits before the sub registrar that this is my duly executed will executed by me he is admitting execution and if the sub registrar after getting an acknowledgement from the attestator signs it he can loosely be called an attestor but then which will should be attested at least by two attestors requirement of law that there should be two attestors at least attestation there should be two for proving it only one one alone need need be there for proving attestation but for attesting there should be a two or more as one section says so register by himself cannot be two or more and other two persons who are signing is only they are only saying that this is the so so called person who has a who admits execution of the will before you we identify him as one so they are identifying the attestor they are not executing the will or attesting the execution of the will attestation it may not be correct also but anyway faced with the difficulty of the attesting witnesses not being alive supreme would have to rely on that this is can there be three witnesses or only two are sufficient to minimum two two or more that is what the section says section say two or more therefore there should be minimum two but while proving the will do you execute on the will one at section 68 of the evidence that says only one attesting witness should be examined if alive there's a last question by Ajit Sejwani what are the consequences of a will when the testator signs a will when he's in ICU of the hospital this question normally has a reason after the COVID yes if it can be shown by the proponder that the testator with the full knowledge that he's executing a will had signed the will and if he is able to examine the doctor etc or the nurse who was attending on the restator and he was having a test and they having the test reclusive testamentary capacity he was having the reclusive testamentary capacity that he was not in a morbid condition he was he was not so morbid that his faculties were impaired if that is that could be proved by the doctor or the nurse then nothing wrong if he he knowingly and willingly execute put his signature or put his mark to the document or requested a person another person standing by him to put his signature even that is valid execution as per section 63 only thing is he should do that with the full knowledge that he is executing a solemn document in the form of a will and testament if that can be proved nothing wrong what happens if the testator turns hostile while giving evidence testator will not turn hostile because will will take the effect only after his death you have to turn hostile from the other world no not testator a tester you said that tester a tester turns hostile then section 154 is there under the evidence act section 154 the person who called him as a witness can put can take the permit of the court to put questions which might be put in cross-examination by the opposite party namely virtually cross-examining him after taking the permission of the court he can be cross-examined or if the other witnesses is alive that is precisely what bombay echo did through mc chagla they found that because the page number somebody's asking that mc chagla 1949 supreme court 9th supreme court i gave you the page number 49 one second i think it is 286 or so tomorrow we'll share it one second let me right now that is every lawyer every judge should know this decision because on hyper technicalities the intention of a testator should not be allowed to be defeated by such a the court court has got a responsibility in the matter that is why the we come to the armchair rule etc the court has to occupy place itself in the position of a testator who is brooding in an armchair 1949 i think it is 286 also page number i have noted down somewhere tomorrow we'll share it okay this is a muslim is married under the special marriage act can still be going by muslim personal law allowing them to execute a what they'll be allowed now he's a muslim see marriage under the special law special marriage act will not make him a non-muslim he does not convert to a non become a it is because both the parties parties to marriage are not the same religion that is why special marriage act is has is giving a right to get married just because they get married they don't renounce their personal religion a muslim marrying a hindu can marry under the special marriage act so that marriage can be valid validly registered and he does not cease to be a muslim the other person also will not cease to be a hindu they don't they don't indulge in apostasy or the the religion they don't lose their religion by by getting married under the special marriage act because personal law will not allow a in a person outside the religion to have a marriage that is why whether it is muslim or hindu yes sir so uh these are all the questions which we think and tomorrow friends we will connect again at 4 30 p.m and we have the second part of the series and it's always been a pleasure connecting with this is our mark because the way he takes things forward is a treat for the mind also as well as the legal mind it actually gets eliminated we'll ask Mr. Shyam again to conclude yeah Mr. Shyam what else can I say an evening or an afternoon well spent and that you want the nuances of testamentary succession unprivileged wills whether it is criminal whether it is civil the inimitable style in which Ramana sir takes it drills in I mean I'm sure that no doubts would be lingering in the minds at least of how I will if at all anyone among us want to have a will each and everyone with example uh with uh in a question answer format it has been drilled in so uh indeed encrypted to you sir for amanna the the the simple or simplification or demystification of uh of of the law like I mean that's what is what is uh required and that's the way we like to move forward and uh because it's been wonderful that you've been carrying on this and uh the way in which you're using the speakers the topic and the audience that is following you it's really wonderful to be part of this thank you thank you very much sir I can only share that once we are taking with details together they say that uh one is solo and two in a tango move things better so once they know that Mr. Ram Kumar and Mr. Sham and Mr. Prem will come the session will be stimulating to the mind hopefully tomorrow Prem and Mr. K. V. J. Rao will be there we are missing the stars of today if there is a will there is a way it is it is it is something different sir wherever there is a will there is a litigation I add to that they say that where there is a will there are lawyers and lawyers also enjoy thank you everyone stay blessed and stay safe