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THE TECHNICALITY OF LAW CANNOT BE OVERLOOKED IN CASE OF WILL ATTESTATION AND ITS PROOF. 2001 SC

FULL JUDGMENT
N. KAMALAM (DEAD) AND ANOTHER vs AYYASAMY AND ANOTHER, ILR 2002 KAR 4273. The relevant paragraphs-28 and 32 read as under: "Para 28 : It is on this count that the learned Advocate in support of the appeal very strongly contended that there is existing a responsibility on to the law Courts to deal with the matter having due regard to the concept of justice. Technicalities. It has been contended there may be many - but would that sub-serve the ends of justice; one needs to ponder over the same. Justice oriented approach cannot be decried in the present day society as opposed to strict rigours of law; Law Courts existence is dependant upon the present day social approach and thus cannot and ought not to be administered on sheer technicalities. The discussion of the law as above, definitely make us ponder over the legal aspects once more since the tenor of the observations contained therein obviously looked into being in favour of the technicality rather a justice oriented approach and in that perspective let us now have review of the whole situation on the factual context. Masaney Gowder executed a Will said to have been written by one Arunachalam and attested by Subbaiah and Govindaraju. The two attesting witnesses were not called to give evidence against them - why it has not been done? The explanation has been that both the attesting witnesses were inimical towards appellants and as such there was a refusal on their part to come to Court and prove the document - how far however the same is an acceptable evidence; We Will have to examine; but before so doing the factum of non-availability of the attesting witnesses cannot be discarded and if so, what would be its consequences. The application for additional evidence as dealt with herein before, was made after a lapse of about 10 years after the appeal was filed and the learned judges though it fit to reject such a prayer and we also do lend out concurrence thereof without taking any exception - but then what is the effect? we have thus existing on record a document said to be a Will of one Masaney gowder whose signatures stand accepted and two attesting witnesses though named in the body of the document were not made available but the writer of the will or the scribe came forward and deposed as to the state of affairs on the date of signing of the will, it would be convenient thus to note the evidence of the scribe and see for ourselves as to whether even a justice oriented approach would be able to save the will in the absence of the attesting witnesses. Arunachalam stated in his examination in Chief as below: "I have written Ex.A.1 `THE WILL', I have written the WILL EX. A1 for the Sake of Masane Gowder. The said Masane Gowder has been introduced to me by the Advocate G.M. Nathan who was formerly have. During the execution of the WILL, Advocate G.M. Nathan was residing at Thomas Street.At that time Masane Gowder was residing at the same place after one house of Advocate's home. Before the preparation of the `WILL' I had been to his house and discussed with him about the details and he has stated the details. At that time Masane Gowder Mental and Physical status were found good. After writing the Ex.A.1 the Will, I have read out the same to him, and he had stated that all were correct. Then in my presence Masane Gowder had affixed his thumb impression in each page. The affixing of thumb impression by Masane Gowder in Ex.A1 WILL had been witnessed by attestor Subbaiah,Govindaraju and myself.The signing of signature for witness by us, was eye witnessed by Masane Gowder. After the Ex.A1 Will had been prepared and signed I handed over the `WILL' to Masane Gowder". Para - 32 : While it is true that Arunachalam, in the facts of the matter under consideration did write the Will and has also signed it but it is of utmost requirement that the document ought to be signed by the witnesses in order to have the statutory requirement fulfilled. Arunachalam has signed the document as a scribe not as a witness, if there were no signatures available as witness, probably we would have to specifically deal with such a situation and to consider that aspect of the matter but presently in the facts situation of the matter under consideration, we have the advantage of two attesting witnesses, none of whom have been examined and the factum of their non-availability also does not satisfactorily been proved. The requirement of the statute when Arunachalam himself has specifically identified himself as Writer and not as a witness though in his evidence, he tried to improve the situation, but this improvement however, cannot said to be accepted. The Will thus fails to have its full impact and its effect stands out to be non est."

RAJAMMAL vs CHINNATHAL, AIR 1976 MADRAS, AIR 1976 MADRAS 4. In this case it was held that once the execution of the Will is denied by the alleged executant the document cannot be admitted in evidence, unless one attesting witness atleast has been called for proving the execution of the document, if alive, and subject to the process of the Court. In that case there was no evidence to show that the attesting witnesses were not alive and none of them were examined. Therefore, the requirement of Section 68 of the Indian Evidence Act has not been complied with and as such the Will could not be used in evidence.

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