Evidence Law - Litigating Hand

Chankaya vs. State and Ors. [MANU/DE/2995/2019]: Delhi High Court

Will should be signed in presence of attesting witnesses and they shall attest in presence of the testator

21. Section 63 of the Indian Succession Act provides that an unprivileged Will is to be attested by two or more witnesses each of whom has seen the testator signing or affixing his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator and each of the witnesses shall sign the Will in the presence of the testator. The attestation by two or more witnesses is mandatory. The mode of proving a Will has to be in accordance with Section 68 of the Indian Evidence Act. On a conjoint reading of the two provisions, it emanates that the Will had to be proved by producing at least one of the attesting witnesses. From a reading of the above noted provisions, it also emerges that if there is an attesting witness who is alive and capable of giving evidence then subject to the process of the Court, he has to be necessarily examined, before the document required by law to be attested can be used in any evidence.