The Karnataka High Court, while dealing with the case of a disputed Will, suggested the use of technology to video record testators and attesting witnesses to ensure that there is an "unambiguous, credible and clinching record".

"Quite a few disputes concerning the Will land up in Courts." the Court remarked, and "this is one such case." The Court was hearing a Regular First Appeal praying for production of call records and for setting aside the decree for partition passed by the Civil Court, based on a Will registered years ago, and the validity of which was disputed.

A Single-Judge Bench of Justice Anant Ramanath Hegde suggested, "There is a need to embrace the technology to ensure that there is an unambiguous, credible, and clinching record relating to proof of execution of documents, more particularly the documents such as Will where the author of the instrument will not be available to admit or prove its execution when its execution is disputed."

Advocate Rajashekar R. Gunjalli appeared for the Petitioners and Advocate H.R. Deshpande appeared for the Respondents.

Wills, which are documents that contain details on disposition of the testator’s property and enable a person to decide the course of succession in respect of their estate, are a "sacred document," the Court said. "In our culture, lot of significance is attached to the last wish of a person." The Court noted that a duly executed Will overrides the personal law relating to intestate succession and fulfils the "last wish" of the testator in so far as succession to his estate. "This signifies the sanctity attached, by the lawmakers to the last wish of a testator."

Under Indian law, a Will must be attested by at least two attesting witnesses and at least one must be examined to prove it. The concept of Will and proof of Will was introduced through the Indian Succession Act, 1925 and Indian Evidence Act, 1872 and has not witnessed any change even with the advent of the Bharatiya Sahkshya Adhiniyama 2023, the Court noted.

However, "technology in the last two decades has advanced beyond comprehension. There is a need to make good use of the technology in documenting the Wills. The office of the Sub- Registrar is now equipped with computer systems and web cameras. Video recording and storing the data is quite simple and inexpensive. The process of registration can be suitably amended to facilitate video recording of the statement of the testator and attesting witnesses."

The Court suggested that suitable provisions be made to give an option to record the statement by the testator and the attesting witnesses in a Court, testifying about the execution of a Will, with necessary measures or safeguards to ensure the confidentiality. This, the Court said, "will go a long way in assisting the Courts in discharging its function where the Courts have to adjudicate the dispute surrounding the execution of the Will."

"A Will containing the last wish of the testator should last as per his wish, and should not be lost in a complex procedure of proof where when the testator has no voice and the proof of a Will depends on the evidence of attesting witnesses or other witnesses recognized under law." it remarked, clarifying that it was only discussing this to invite the attention of the relevant stakeholders for a "meaningful deliberation and to find a solution to ensure that a genuine Will never fails or a fake Will never succeeds in a Court of law."

Noting the adage that ignorance of the law is no excuse, the Court said many a times a person called upon to prove the attestation of a Will may not know the nitty-gritty of attestation or the importance of the evidence of an attesting witness to a Will.

"The experience of life tells us that in many cases where a dispute surrounding the execution of a Will is tried in Courts, the attesting witness will be deposing before the Court many years after the execution of the Will. The witness may not be in a position to give the correct account of what transpired when the Will was executed or when he signed as an attesting witness. At times, a witness may predecease the testator. Though the law provides for a different mode of proof in such a situation, the fact remains that the best witness is no more. During the trial, where at times a high premium is placed on the accuracy of the statement, the evidence led in support of the Will may fall short of the standard expected." the Court said, adding that it is often the case that the "best person" to speak about the testator's intention is not present.

Under the existing law, the Court noted, the proof of Will and the fulfilment of the last wish of the testator is "entirely dependent on the ability of the attesting witness to withstand the cross- examination by a skilled and trained lawyer. Sometimes, if not all times, the atmosphere in the Court, the presence of a judge, lawyers, and the parties to the proceedings, may infuse a sense of fear or anxiety in the mind of a witness while deposing before the Court. In such a scenario, the witness may fumble, even if the Will is genuine. In the process, it is quite possible that the last desire or wish of the testator may not get fulfilled at all."

The Court said lack of awareness on the significance and importance of being an attesting witness to a Will and or to what attestation means may result in a verdict rejecting the claim based on the Will. More often than not when the evidence on both sides appears to be somewhat evenly balanced, the Court finds it bit difficult to decide which version is true, it said, recording the dilemma.

Cause Title: Indiramma And Ors. v. Hampamma And Ors. [2024:KHC-D:16936]

Appearance:

Petitioners: Advocate Rajashekar R. Gunjalli

Respondents: Advocates H.R. Deshpande and Usha H. Deshpande

Click here to read/download the Judgment


Justice Anant Ramanath Hegde

Tushar Kohli