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Umapati Devi vs Sri Arbind Kumar &Amp; Anr. on 18 January, 2011 cites

Nirmal Kanta (Dead) Through Lrs vs Ashok Kumar & Anr on 28 March, 2008

In decision reported in 2001 (4) PLJR page 147 Nirmala (dead) & another Vs. Ayyasaomy & another it has been observed that the latin expression "onus probandi" and "animo attestandi" are the two basis feature of the testamentary jurisdiction by expression and animo attestandi means and implies animus to attesty i.e. it means intend to attest. Attesting witness must subscribe with the intend to attest, the attesting witness must be with the intent that subscription of the signature may stands by way of complied attestation of the will and evidence is admissibility to show whether such was intention or 14 not. "onus probandi" is to satisfy the court conscious that will was executed by the testator with under signed and disposing state of mind and onus is discharge as regards due execution if the propounder leads evidence to show that the will bear the signature and mark of testator and the will is duly attested. However, attestation shall have to be proved in accordance with Section 68 of the Evidence Act which requires that if document is required by law to be attested which shall not be used as evidence unless at least one attesting witness has been called for the purpose of proving its execution if the attesting witness capable for giving evidence and further in the event of any suspicious surrounding circumstance then propounder remove the suspicious for leading satisfactory evidence and further held that ascribe can not be identified to the same status of attesting witness as animus to attest is not available to the subscribe. He is not witness to the will but a mere writer of the will and his presence and his signature on the document does not by itself to be taken a prove of due attestation unless the situation is so expressed in the document itself and hence it has been held that animus to attest is not available to the subscribe as he is not witness to the will but mere writer of the will and statutory requirement can not be 15 transposed in favour of the writer rather goes against propounder as two witnesses named with details address but no time to bring them or to produce them before the court so as to satisfy the judicial conscious and persons of ascribe and his signature appearing on the document or itself taken to prove of due attestation unless situation so expressed in the document and hence held the will fails to mark in effect stands out to be nonest.
Supreme Court of India Cites 5 - Cited by 20 - A Kabir - Full Document
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