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Will cannot be used as evidence till a witness proves its execution

Whether the Will has duly been executed or not, the court must satisfy its conscience with regard to the totality of the circumstances

My father owned a house in Ghaziabad. It is in his name and he made a Will which is currently in the custody of my mother. I am concerned about potential disputes about the property’s ownership arising after my mother’s demise because the witnesses of the Will are my father’s friends who are also of my father’s age, that is, around 85 years. I feel that after their demise, the issue might become complicated. What would be the right course of action to ensure that until the Will becomes valid in the eyes of the law, there is no dispute whatsoever about the property among the legal heirs?

—Name withheld on request

At the outset, we have assumed that your father has expired leaving behind his last Will and testament, by virtue of which he has bequeathed all his assets, both movable and immovable properties, including the house in Ghaziabad. The Will is in the custody of your mother who is alive and you have expressed that there is no dispute whatsoever among the legal heirs of your father about your father’s Will and that the position will be the same even after the demise of your mother.

You have informed us that the issue lies in the old age of the two witnesses, who are your father’s friends and are both around 85 years of age, and have attested your father’s Will as witnesses.

Please keep in mind that the law requires a Will to be attested by two or more witnesses, each of whom has seen the testator, that is, your father, in the instant matter, signing or affixing his mark on the Will or has seen some other person signing the Will in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of the signature or mark or his signature or the signature of such other person, and that each of the witnesses has signed the Will in the presence of the testator.

A Will cannot be used as evidence until one of the two attesting witnesses has been called for the purpose of proving its execution, if there is an attesting witness alive, subject to the process of the court, and capable of giving evidence.

Also, whether the Will has duly been executed or not, the court must satisfy its conscience with regard to the totality of the circumstances.

My mother is a Hindu and father is a Muslim. I practice Islam. Can I legally claim property rights to my father and mother’s ancestral properties?

—Faizan Khan

It is interesting to note that a Mohammedan male may contract a valid marriage not only with a Mohammedan woman but with a Kitabia, that is, a Jewess of a Christian, but not with an idolatress or a fireworshipper. If he does marry an idolatress or a fireworshipper, the marriage is not void (batil), but merely invalid (fasid).

The Supreme Court has concluded that Muslim law does not treat the marriage of a Muslim man with a Hindu woman as void, and confers legitimacy upon children born out of such wedlock.

The apex court has further clarified that the marriage between a man following Islam and a woman following Hinduism is neither valid nor void, but only irregular, and further, that a child born out the aforesaid wedlock would be considered a legitimate child who would have rights of inheritance as per the prevalent personal laws of the parent.

Aradhana Bhansali is partner, Rajani Associates.

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