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of <h1>Supreme Court Upholds Decision on Will Attestation</h1> <h3>N. Kamalam (Dead) Versus Ayyasamy</h3> N. Kamalam (Dead) Versus Ayyasamy - 2001 AIR 2802, 2001 (1) Suppl. SCR 272, 2001 (7) SCC 503, 2001 (6) JT 219, 2001 (5) SCALE 65 Issues Involved:1. Onus probandi and animo attestandi in testamentary jurisdiction.2. Validity of attestation under Section 3 of the Transfer of Property Act.3. Proof of wills under Sections 67 and 68 of the Evidence Act and Sections 59 and 63 of the Indian Succession Act.4. Admissibility of additional evidence under Order 41 Rule 27 of the Code of Civil Procedure.5. Role of the scribe as an attesting witness.Summary:Issue 1: Onus probandi and animo attestandi in testamentary jurisdictionThe judgment explains that 'onus probandi lies in every case upon the party propounding a will,' meaning the burden of proof is on the party presenting the will. The term 'animo attestandi' implies the intent to attest, requiring that the attesting witness must sign with the intention of attesting the will.Issue 2: Validity of attestation under Section 3 of the Transfer of Property ActThe essential conditions of a valid attestation u/s 3 are that two or more witnesses must see the executant sign the instrument or receive a personal acknowledgment of his signature, and each witness must sign the instrument in the presence of the executant with the intent to attest.Issue 3: Proof of wills under Sections 67 and 68 of the Evidence Act and Sections 59 and 63 of the Indian Succession ActThe court reiterated that the party propounding a will must prove the signature of the testator and due attestation by witnesses. Section 68 of the Evidence Act requires at least one attesting witness to be called for proving the execution of the will. The court emphasized that the will must be attested by two or more witnesses, each signing in the presence of the testator.Issue 4: Admissibility of additional evidence under Order 41 Rule 27 of the Code of Civil ProcedureThe court highlighted that additional evidence can be admitted only if it falls within the specific situations prescribed in Order 41 Rule 27, such as the evidence being refused by the lower court or not being available despite due diligence. The court found that the application for additional evidence, filed ten years after the appeal, was rightly rejected by the High Court.Issue 5: Role of the scribe as an attesting witnessThe court clarified that the scribe's signature does not fulfill the statutory requirement of attestation unless it is explicitly stated that the scribe signed as a witness. In this case, the scribe, Arunachalam, signed as a writer, not as a witness. The court concluded that the will was not duly attested as required by law, and the evidence provided by the scribe could not substitute for the attestation by witnesses.Conclusion:The Supreme Court upheld the High Court's decision, dismissing the appeal and ruling that the will was not proved as per legal requirements. The court emphasized the necessity of strict compliance with statutory requirements for attestation and the inadmissibility of additional evidence filed after a significant delay.
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