Is a Registered Will Valid Without Witnesses?

Honaji Dama Kadam died, leaving agricultural land and a house. Janki Narayan Bhoir, his only daughter, contested the claim of Narayan Namdeo Kadam, the son of Honaji's cousin brother. Kadam claimed both properties under a Will dated October 23, 1975, said to have been executed by Honaji.

The trial court accepted the Will on the evidence and decreed the possession suit. In the first appeal, the District Judge reversed that decree. He held that Kadam had examined only one attesting witness and that the witness's evidence was not sufficient to establish that the Will was duly executed.

The Bombay High Court restored the trial court's decree in the second appeal. It said that both attesting witnesses need not be examined, that surrounding circumstances could fill the gap where one witness could not remember whether the other had signed, and that the scribe, Duttatray Raikar, had signed the Will and could be treated as an attesting witness.

Before the Supreme Court, Kadam's counsel fairly conceded that Raikar was only the scribe and not an attesting witness. Prabhakar Sinkar was the one attesting witness examined. He said he did not know whether the other attesting witness, Ramkrishna Wagle, was present in the house of the respondent at the time of execution of the Will. He also stated that he did not remember whether he and Raikar were present when he put his signature. He did not see Wagle at that time, and he did not identify the person who had put the thumb impression on the Will. Wagle was alive but was not examined, and nothing on record showed any attempt to examine him or any impediment to doing so.

Section 63(c) of the Succession Act makes attestation by two or more witnesses mandatory. Each witness must have seen the testator sign or affix his mark, or seen another person sign the Will in the testator's presence and by his direction, or received a personal acknowledgement of the signature or mark. Each witness must also sign in the testator's presence.

Section 68 permits proof through one attesting witness, but the Supreme Court stressed that it is not merely an enabling provision. It lays down the necessary requirements the court must observe before holding a document proved. Section 71 is a separate safeguard: if an attesting witness denies or does not recollect the execution, it may be proved by other evidence.

The grey area in Kadam's case was whether Section 71 and surrounding circumstances could make up for an unexamined second attesting witness. The Court also noted that calling the available witness helps avert the claim of an adverse inference under Section 114 illustration (g) of the Evidence Act. It disapproved Mt. Manki Kaur v. Hansraj Singh and Ors., AIR (1938) Patna 301, and approved the view in Vishnu Ramkrishna and Ors. v. Nathu Vithal and Ors., AIR (1949) Bom. 266.

Proving a Will means proving every formality in Section 63, not merely proving that the signature on it is the testator's. One attesting witness can complete the Section 68 proof only by proving his own attestation and the other witness's attestation. In this case, Prabhakar Sinkar did not prove that Ramkrishna Wagle attested the Will, even though Wagle was available. Kadam conceded that Duttatray Raikar was only the scribe, and the Court held the High Court wrong to treat Raikar as an attesting witness without any basis.

The Court held that the High Court had committed a serious error. The official record marks the disposal as "Dismissed". The operative order, however, set aside the High Court's judgment and decree, restored the first appellate court's judgment and decree, and dismissed Kadam's suit, with no order as to costs.

• The Court closed the loophole that let a party examine one witness, leave the second witness uncalled despite availability, and then invoke Section 71 as a rescue.
• It also rejected the attempt to count the scribe as an attesting witness. Raikar gave evidence as the scribe, and nothing on record showed any intention on his part to attest the Will.

• Start with the Will and any court record identifying who wrote and attested it. In this case the material people were scribe Duttatray Raikar and attesting witnesses Ramkrishna Wagle and Prabhakar Sinkar; identify the equivalent people for your Will.
• Collect proof that an attesting witness is alive, subject to the court's process, and capable of giving evidence, because Section 68 makes that witness's examination the threshold for using the Will as evidence.
• In the civil court hearing the possession suit, call the attesting witness who can prove both his own attestation and the other witness's attestation. If he cannot, call the other available attesting witness before relying on anyone else.
• Do not ask the court to count the scribe or surrounding circumstances as the second attestation. Kadam's concession that Raikar was only the scribe and the Court's rejection of that theory make this the judgment's clearest mistake to avoid.