2003 (11) TMI 650 - SC - Indian Laws

Will Upheld, Codicil Invalid: Registration Insufficient for Proof; Appeal Dismissed Due to Lack of Merit.

Bhagat Ram and Ors. Versus Suresh and Ors.

The HC concluded that the Will dated 16.5.1973 was validly executed and attested, while the codicil dated 21.5.1973 was not adequately proved. The court ... - Issues Involved:1. Whether the formalities attaching with the execution of a Will need to be carried out in relation to a codicil, and if so, whether a codicil is also required to be proved in the same manner as a WillRs.2. Whether a Registrar of Deeds can also be an attesting witnessRs.3. Whether registration of a Will or codicil dispenses with the need of proving the execution and attestation of a Will in the manner required by Section 68 of the Evidence ActRs.Detailed Analysis:Issue 1: Formalities for Execution and Proof of CodicilThe court examined the definitions of 'Will' and 'codicil' under the Indian Succession Act, 1925, and concluded that the same rules of execution and proof apply to both. Section 63 of the Succession Act outlines the execution requirements for unprivileged Wills, which include signing by the testator and attestation by two witnesses. The court referenced authoritative texts and concluded that a codicil, being an instrument made in relation to a Will, explaining, altering, or adding to its dispositions, must be executed and proved in the same manner as a Will. This interpretation is reinforced by Section 70 of the Succession Act, which equates the revocation of unprivileged Wills and codicils in terms of execution. Therefore, the court held that the same formalities and proof requirements apply to codicils as they do to Wills.Issue 2: Registrar of Deeds as Attesting WitnessThe court analyzed whether a Registrar of Deeds can act as an attesting witness. It referred to previous case law, including the Supreme Court's decision in Dharam Singh v. Aso, which held that a Registrar does not become an attesting witness merely by registering a document. However, the court noted that a Registrar could fulfill the role of an attesting witness if he signs the document in the presence of the testator and witnesses the testator's signature, as required by Section 63(c) of the Succession Act. The court emphasized that the Registrar must be called to the witness box to prove the attestation, and his testimony must satisfy the requirements of being an attesting witness. In this case, neither Ram Dutt nor Vijay Singh Negi, the Registrar, were examined in court to prove the execution and attestation of the codicil, leading the court to conclude that the codicil was not proved.Issue 3: Effect of Registration on Proof RequirementsThe court clarified that the registration of a document does not dispense with the need to prove its execution and attestation as required by Section 68 of the Evidence Act. The court referred to Sections 52, 58, 59, and 60 of the Registration Act, which outline the Registrar's duties in endorsing and certifying documents. The court noted that these endorsements do not include the factum of attestation as required by Section 63(c) of the Succession Act or Section 68 of the Evidence Act. Therefore, a presumption of correctness or regularity of attestation cannot be drawn solely from the registration of a document. The Registrar must be called to testify if he is to be considered an attesting witness. In this case, the codicil's registration did not dispense with the need to prove its execution and attestation, and since the codicil was not proved, it could not alter the dispositions made by the Will dated 16.5.1973.Conclusion:The court concluded that the Will dated 16.5.1973 was duly executed and attested, but the codicil dated 21.5.1973 was not proved. Consequently, the codicil could not alter the dispositions made by the Will. The appeal was dismissed as devoid of merit.