Law of Evidence

By Nizam Azeez Sait,

MODULE No. 21

Mode of Proof of Execution of a Document Required to be Attested by Law

This is the 21st Module of the subject ‘Law of Evidence’, covering ‘Mode of Proof of execution of a document required to be attested by law’, comprising Sections 67 to 70 of the Bharatiya Sakshya Adhiniyam (Sections 68 to 71 of the Evidence Act), in Chapter V in part III of the Evidence Act.

MODULE INDEX

1. Introduction
2. Documents Which Require Attestation

3. Attestation – Meaning

4. Whether A Scribe Can Be An Attesting Witness – Requirement of ‘animo attestandi’
5. Whether a Registrar of Deeds can also be an attesting witness
6. Basic Elements Of Section 67
7. The Registration of Document Does Not Per se or Ipso Facto Absolve Proof Of Execution of Will or Other Document Required to be Attested
8. When The Document Is Registered and Execution Is Not Denied By the Party then Examination of Attesting Witness is not required – Application of Proviso to S.67

9. Mode of Proof When the Attesting Witnesses Cannot be Found -Section 68
10. Admission of execution by party to attested document

11. Application of Section 70 – When the Attesting Witness Denies or Does Not Recollect The Execution – Execution should be proved by Other Evidence
12. Proof Of Will – Main Features – Case Law

(a) Apart From Compliance Of Section 68 Proof Of Will Doesn’t Differ From proof of Other Documents
(b) A Will Speaks from The Death Of The Testator And that Does Introduce An Element Of Solemnity In Its Proof
(c) Duty to rebut Suspicious Circumstances and Significance Of The Evidence Of The Sub Registrar Who Registered The Will
(d) Allegation of Undue Influence, Fraud and Coercion – Burden of Proof on one who alleges

(e) When Will is Proved the Contents Are Part of Evidence

(f) Proof of Will – Summary/Summing Up

13. Whether Section 67 Procedure Is Mandatory When Execution Of The Will Is Admitted Or Not Specifically Disputed/Denied- Whether Section 58 of the Evidence Act Overrides Section 67
14. Whether The Presumption Under Section 92 of the Bharatiya Sakshya Adhiniyam Is Available to A Will Which Is More Than 30 Years Old
15. Proof of document not required by law to be attested

1. Introduction

Sections 67 to 70 of the Bharatiya Sakshya Adhiniyam (Sections 68 to 71 of the Evidence Act) deal with mode of proof of execution of document required by law to be attested. Section 71 (Section 72 of the Evidence Act) deals with Proof of attested document not required by law to be attested.

Section 67 (Section 68 of the Evidence Act) reads as under:

If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:

Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied.

Section 68 (Section 69 of the Evidence Act) reads as under:

If no such attesting witness can be found, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.

Section 69 (Section 70 of the Evidence Act) reads as under:

The admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested.

Section 70 (Section 71 of the Evidence Act) reads as under:

If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.

Section 71 (Section 72 of the Evidence Act) reads as under:

An attested document not required by law to be attested may be proved as if it was unattested.

2. Documents Which Require Attestation

The law specifically provides that some peculiar documents require attestation for its validity. Following are some of such documents.

Mortgage

Section 59 of the Transfer of Property Act provides that:

Where the principal money secured is one hundred rupees or upwards, a mortgage other than a mortgage by deposit of title deeds can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.

Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid or except in the case of a simple mortgage by delivery of the property.

Gift

According to S.123 of the Transfer of Property Act, a gift of immovable property must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.

It may be noted that a Sale Deed does not require attestation.

Will

Will is a legal document that expresses a Person’s wishes as to how his/her property is to be distributed after his/her death. Law relating to testamentary succession is mostly contained in the Indian Succession Act.

As S.63 of the Indian Succession Act enacts that a will has to be attested by two or more witnesses.

Section 63 of the Indian Succession Act reads as under:

Execution of unprivileged Wills

Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:-

(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.

(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.

(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.

Will is undoubtedly a document which comes under the purview of S.68 of the Evidence Act.

3. Attestation – Meaning

Attestation is not defined in the Evidence Act. The term “attested” has been defined in S.3 of the Transfer of Property Act. The essential conditions of a valid attestation are that two or more witnesses must have seen the executant sign the instrument, or have received from him a personal acknowledgment of his signature, and each of them has signed the instrument in the presence of the executant.

In, Naresh Charan Das Gupta v. Paresh Charan Das Gupta, AIR 1955 SC 363 the two attesting witnesses stated in examination – in – chief that the testator signed the Will in their presence and that they attested the signature. They did not state that they had signed the Will in the presence of the testator. It was contended that in the absence of such a statement it must be held that there was no due attestation. The Supreme Court observed that : –

“………It cannot be laid down as a matter of law that because the witnesses did not state in examination – in – chief that they signed the will in the presence of the testator, there was no due attestation. It will depend on the circumstances elicited in evidence whether the attesting witnesses signed in the presence of the testator. This is a pure question of fact depending on appreciation of evidence …… ……”

4. Whether A Scribe Can Be An Attesting Witness – Requirement of ‘animo attestandi’

A scribe can be an attesting witness if he consciously affixes his signature as an attesting witness that means while signing, he should have necessary animo attestandi.

In M.L. Abdul Jabbar Sahib v. M. V. Venkata Sastri & Sons, 1969 (1) SCC 573, considering the question as to whether a scribe could also be an attesting witness, it is observed as follows:

“It is essential that the witness should have put his signature animo attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature. If a person puts his signature on the document for some other purpose, e.g., to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness.” (See also Kamalam v. Ayyasamy, 2001 (7) SCC 503)

In this regard, In, Dhruba Sahu (dead) and after him Nalumoni Sahu and Another v. Paramananda Sahu AIR 1983 Ori. 24, Orissa High Court

Observed:

The scribe of a document may perform a dual role. He may be an attesting witness as well as the scribe, but he will not be so unless he intends to sign the document as an attesting witness. A person can be called an attesting witness when he has witnessed the execution of the document and has put his signature by describing himself as an attesting witness. When a person puts his signatures on the document both as scribe and as attesting witness, the inference is that he functioned both as scribe and as attesting witness. P.W. 1 is the scribe of the deed of gift (Ext.1). At the end of the writing, he has put his signature describing himself as a scribe and on the right-hand margin of each page of the document he has also signed describing himself as an attesting witness. During his evidence in Court he dated that he scribed the gift deed as per direction of the defendant. Then he read over and explained the contents of the deed to the defendant who signed the same in his presence. The above evidence clearly shows that P.W. 1 was also functioning as an attesting witness and in fact, he has signed the document not only as the scribe, but also as an attesting witness.

Raveendran C G and Others v C G Gopi and Others2015 (3) KLT 740: AIR 2015 Ker. 250 Kerala High Court, reiterated that scribe can be an attesting witness, as under:

 S.68 of the Indian Evidence Act (Section 67 of the Bharatiya Sakshya Adhiniyam), provides that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. In the present case, the attesting witnesses are Parameswaran and Padmanabhan Nair. Parameswaran himself was the scribe. There is no legal bar in scribe himself being an attesting witness, provided he has actually seen the executant signing or affixing his mark or has received a personal acknowledgment from the executant and has consciously affixed his signature as an attesting witness, as a token of having witnessed the executant signing or affixing his mark. Evidence should prove that the scribe, apart from being so, had signed for the purpose of testifying to the signature of the executant and had the animo attestandi. This view gets support from the decisions in M. Venkatasubbaiah v. Subbamma and Others, AIR 1956 AP 195, Dhruba Sahu v. Paramananda Sahu, AIR 1983 Ori. 24, Nirode Mohan Roy v. Charu Chandra, AIR 1950 Cal. 401 and Parama Siva Udayan v. Krishna, AIR 1918 Mad. 491.

In, Rohini Juliet @Lekha v Sherry Kunju ILR 2019 (4) Ker. 915, High Court of Kerala observed:

Law is too well settled that even a scribe could be an attesting witness provided he had the necessary animo attestandi, viz. the animus or the intention to be an attestor to the document. Whether the scribe signed the document with an intent to attest or not, is a pure question of fact. As noticed above, just before describing the names of the two attestors, the title given is “witnesses” in plural. The mere fact that the serial number is given only as against the first attestor does not, in the circumstances, make any difference. Anyhow, in the absence of any challenge to the sufficiency of attestation, there was no occasion for the donee to adduce evidence regarding the same. The document on the face of it appears to satisfy the ingredients of S.123 of the Transfer of Property Act and is attested by two witnesses.

5. Whether a Registrar of Deeds can also be an attesting witness

In Bagat Ram and another v Suresh and others, 2003 (12) SCC 35: AIR 2004 SC 436, the Supreme Court inter alia considered the issue   Whether a Registrar of Deeds can also be an attesting witness? The Court observed:

The ratio of the several decisions by the High Court of Punjab and Haryana cited at the Bar is that, in the facts and circumstances of a given case, the Registrar may also fulfil the character of an attesting witness as required by law and if, on entering into the witness box as required by S.68 of the Evidence Act (Section 67 of the Bharatiya Sakshya Adhiniyam), he proves by his testimony the execution of document by deposing to having witnessed himself the proceedings as contemplated by S.63 of the Succession Act, he can be an attesting witness. The certificate of registration under S.60 of the Registration Act, 1908 raises a presumption under S.114 Illustration (e) (Section 119 illustration (e) of the Bharatiya Sakshya Adhiniyam) of the Evidence Act (Section 119 illustration (e) of the Bharatiya Sakshya Adhiniyam) that he had regularly performed his duty and therefore the facts spelled out by the endorsements made under S.58 and 59 of the Registration Act may be presumed to be correct without formal proof thereof. The duties discharged by the registering officer do not include attestation or verification of attestation of Will as required by the rules enacted by S.63 of the Succession Act. An endorsement by a registering officer is not by itself a proof of the Will having been duly executed and attested.

 

The Registrar will be an attesting witness only when he puts his signature as a witness with animo attestandi.

6. Basic Elements Of Section 67

Section 67 of the Bharatiya Sakshya Adhiniyam (Section 68 of the Evidence Act) has to be read and understood with reference to the object of attestation. Certain documents – mortgage, gift and Will – require attestation, to make them valid. The object of attestation is to protect the executant from being required to execute a document by force, fraud or undue influence. Where any document is required by law to be attested, Section 67 of the Bharatiya Sakshya Adhiniyam (S.68 of the Evidence Act) interdicts its use in evidence, until an attesting witness at least is examined to prove its execution, provided such witness is alive and subject to the powers of Court and capable of giving evidence.

This Section contains a proviso that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied. Execution of the deed of gift having been specifically denied, the proviso does not apply to the present case.

7. The Registration of Document Does Not Per se or Ipso Facto Absolve Proof Of Execution of Will or Other Document Required to be Attested

It is a settled proposition that the registration of Will Per se or Ipso Facto absolve proof of execution of Will or other document required to be attested by law.

In Bagat Ram and another v Suresh and others, 2003 (12) SCC 35: AIR 2004 SC 436, the Supreme Court inter alia considered the issue   Whether registration of a Will or codicil dispenses with the need of proving the execution and attestation of Will in the manner required by S.68 of the Evidence Act (Section 67 of the Bharatiya Sakshya Adhiniyam)? The Court held:

Registration of a document does not dispense with the need of proving the execution and attestation of a document which is required by law to be proved in the manner as provided in S.68 of the Evidence Act (Section 67 of the Bharatiya Sakshya Adhiniyam). Under S.58 of the Registration Act the Registrar shall endorse the following particulars on every document admitted to registration:

(1)  the date, hour and place of presentation of the document for registration;

(2) the signature and addition of every person admitting the execution of the document, and, if such execution has been admitted by the representative, assign or agent of any person, the signature and addition of such representative, assign or agent;

(3) the signature and addition of every person examined in reference to such document under any of the provisions of this Act; and

(4) any payment of money or delivery of goods made in the presence of the registering officer in reference to the execution of the document, and any admission of receipt of consideration, in whole or in part, made in his presence in reference to such execution.

 A presumption by reference to S.114 [Illustration (e)) of the Evidence Act (Section 119 (illustration e) of the Bharatiya Sakshya Adhiniyam) shall arise to the effect that the events contained in the endorsement of registration, were regularly and duly performed and are correctly recorded. None of the endorsements, required to be made by the Registrar of Deeds under the Registration Act, contemplates the factum of attestation, within the meaning of S.63(c) of the Succession Act or S.68 of the Evidence Act (Section 67 of the Bharatiya Sakshya Adhiniyam), being endorsed or certified by the Registrar of Deeds. The endorsements made at the time of registration are relevant to the matters of the registration only (see Kunwar Surendra Bahadur Singh v. Thakur Behari Singh (AIR 1939 PC 117)). On account of registration of a document, including a Will or codicil, a presumption as to correctness or regularity of attestation cannot be drawn. Where in the facts and circumstances of a given case the Registrar of Deeds satisfies the requirement of an attesting witness, he must be called in the witness box to depose to the attestation. His evidence would be liable to be appreciated and evaluated like the testimony of any other attesting witness.

Again in, Om Prakash (Dead) Thr. His Lrs. v. Shanti Devi and Others AIR 2015 SC 976: 2015 (4) SCC 601, the Supreme Court observed:

S.68 (Section 67 of the Bharatiya Sakshya Adhiniyam) prescribes that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. S.123 of the Transfer of Property Act, 1882 mandates that a Gift Deed pertaining to immovable property must be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. S.17 of the Registration Act, 1908 also requires that instruments of gift of immovable property “shall be registered.” S.34, thereafter, requires the executants or their authorised representatives of the document executed for registration appear before the registering officer. However, the witnesses to a document need not also be the witnesses to its registration. The pandect being Part X, comprising S.47 to 50 of the Registration Act would next be required to be adverted to. S.47 adumbrates that the registered document will take effect from the date of its execution. S.48 is indeed significant in that it clarifies that a registered document will probatively prevail over oral agreements, except for an agreement or declaration which does not itself mandatorily require registration provided the oral agreement is accompanied by delivery of possession. The preeminent S.49 declares that if any document despite requiring registration is not so done it shall not be received in evidence or attain any legal efficacy, except in the context of a suit for specific performance, or if it is intended to be used to prove any collateral transaction. We have ventured into this lengthy and arguably avoidable analysis to accentuate on two aspects – (a) the imperative necessity to produce in evidence a written instrument where it exists; and (b) that the registration of documents does not per se, ipso facto, render it impervious to challenge or and make its reception automatic in curial proceedings.

8. When The Document Is Registered and Execution Is Not Denied By the Party then Examination of Attesting Witness is not required – Application of Proviso to S.67

The proviso to Section 67 of the Bharatiya Sakshya Adhiniyam (S.68 of the Evidence Act) reads as under:

Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.

The above proviso to Section 67 of the Bharatiya Sakshya Adhiniyam (S.68 of the Evidence Act) was first incorporated in the Evidence Act by S.2 of the Indian Evidence (Amendment) Act, 1926. A bare reading of the proviso to Section 67 of the Bharatiya Sakshya Adhiniyam (S.68 of the Evidence Act) shows that the rigor of the section has been relaxed to some extent and it is, therefore, not required to call an attesting witness, except in a case of a Will, unless the execution of the registered document itself is specifically denied by the party purported to have executed the document. (See, Khushalchand Swarup Chand Zabak Jain v. Sureshchandra Kanhaiyalal Kochar @ Anr., reported in 1995 Supp (2) SCC 36,)

In, Engineers (Overseas) Corporation Pvt. Ltd, and Another v. West Bengal Financial Corporation and Another   AIR 1986 Cal. 132.  Calcutta High Court held:

The execution has not been denied but the defendants have contended that on the score of undue influence and coercion and also for other reasons, the said deed of mortgage was not enforceable. In the aforesaid circumstances, examination of the attesting witnesses for the purpose of proof of the execution of the document was not necessary and the learned District Judge was justified in proceeding on the footing that the deed of mortgage has been duly proved.

In Govindbhai Chhotabhai Patel and Ors. v. Patel Ramanbhai Mathurbhai [2019 (12) SCALE 732], The Supreme Court concluded that in the absence of specific denial of execution and in the absence of any evidence of forgery or fabrication, the donee was under no obligation to examine the attesting witnesses to prove the gift deed in terms of S.68 of the Evidence Act. In order to explain the meaning of the term “specifically denied” occurring in S.68 of the Evidence Act (Section 67 of the Bharatiya Sakshya Adhiniyam), and to distinguish it from a general denial of execution, the Apex Court referred to a judgment of the Division Bench of the High Court of Kerala in Kannan Nambiar v. Narayani Amma and Ors. reported in 1984 KLT 855. Paragraphs 14 and 15 of the said judgment that were relied on by the Apex Court reads thus: –

“Ab initio we have to examine whether there is any specific denial of the execution of the document, in the pleadings. Before considering whether there is specific denial we have to consider what is the exact requirement demanded when the proviso enjoins a specific denial. ‘Specific’ means with exactness, precision in a definite manner (See Webster’s 3rd New International Dictionary). It is clear, that something more is required to connote specific denial in juxtaposition to general denial. See Dashrath Prasad v. Lallosing (AIR 1951 Nag. 343).

We think that specific denial of execution of gift is an unambiguous and categorical statement that the donor did not execute the document. It means not only that the denial must be in express terms but that it should be unqualified, manifest and explicit. It should be certain and definite denial of execution. What has to be specifically denied is the execution of the document. Other contentions not necessarily and distinctly referring to the execution of the document by the alleged executant cannot be gathered, for the denial contemplated in the proviso.”

(See also Rosammal Issetheenammal Fernandez (Dead) by LRs and Ors. v. Joosa Mariyan Fernandez and Ors. [2000 (7) SCC 189 and Rohini Juliet @Lekha v Sherry Kunju ILR 2019 (4) Ker. 915)

In, Leela and Others v Vasu and others ILR 2018 (1) Ker. 868, Kerala High Court, observed:

Law is clear that a document, other than a Will, required to be attested by law, shall be proved by examining at least one of the attesting witnesses, if there be a specific denial of its execution. But, when there is no specific denial, which expression is clearly understood in the legal parlance in terms of the provisions under the Code and the relevant precedents, no burden to prove it under S.68 of the Evidence Act (Section 67 of the Bharatiya Sakshya Adhiniyam) could be cast on the propounder. Only exception to the above proposition is a Will, which may have to be proved even though not specifically denied.

9. Mode of Proof When the Attesting Witnesses Cannot be Found -Section 68

Section 68 reads as under:

If no such attesting witness can be found, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.

(it may be noted that Section 68 corresponds to section 69 of the Evidence Act, the words ‘or if the document purports to have been executed in the United Kingdom’ are removed in Section 68 of the Bharatiya Sakshya Adhiniyam )

This section carves out exception to section 68 out of exigency/necessity.  It dilutes the rigor of Section 68. There may be situations where the attesting witnesses are dead, or out of the process of the court, or became incapable of giving evidence, in such situations Section 67 of the Bharatiya Sakshya Adhiniyam (section 69 of the Evidence Act) would come into play.

Under Section 69 the Evidence Act 1872, It also applied to cases where the document was executed in the United Kingdom.

In, Raveendran C G and Others v C G Gopi and Others2015 (3) KLT 740: AIR 2015 Ker. 250, High Court of Kerala, held:

It is on record that both the attesting witnesses are no more alive. Hence, S.68 of the Indian Evidence Act cannot apply (Section 67 of the Bharatiya Sakshya Adhiniyam). The provision that governs the field can only be the S.69 of the Indian Evidence Act (Section 68 of the Bharatiya Sakshya Adhiniyam). It deals with a situation wherein no attesting witnesses can be found, and in such cases it will have to be proved in the manner mentioned in S.69 (Section 68 of the Bharatiya Sakshya Adhiniyam). Though the Statute prescribes that S.69 (Section 68 of the Bharatiya Sakshya Adhiniyam) applies when the witness is not found, in the absence of any other provision dealing with cases wherein the presence of witnesses cannot be procured for various other reasons, like death of both attesting witness, out of jurisdiction, physical incapacity, insanity etc. S.69 (Section 68 of the Bharatiya Sakshya Adhiniyam) should apply and can be extended to such cases. Hence, the word “not found” occurring in S.69 of Evidence Act (Section 68 of the Bharatiya Sakshya Adhiniyam) should receive a wider purposive interpretation than its literal meaning and should take in situation where the presence of the attesting witness cannot be procured. This view gets its support from Venkataramayya v. Kamisetti Gattayya, AIR 1927 Mad. 662 and Ponnuswami Goundan v. Kalyanasundara Ayyar, AIR 1930 Mad. 770.

The Court further held:

It is settled that mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed by S.63 of Indian Succession Act. S.69 (Section 68 of the Bharatiya Sakshya Adhiniyam) imposes a twin fold duty on the propounder. It provides that if no such attesting witness can be found, it must be proved that attestation of one attesting witness at least is in his handwriting and also that the signature of the person executing the document is in the handwriting of that person. Hence, to rely on a Will propounded in a case covered by S.69 (Section 68 of the Bharatiya Sakshya Adhiniyam) the propounder should prove:

  1. that the attestation is in the handwriting of the attesting witness and
  2. that the document was signed by the executant.

Both the limbs will have to be cumulatively proved by the propounder. Evidently, the section demands proof of execution in addition to attestation and does not permit execution to be inferred from proof of attestation. However, Section 69 (Section 68 of the Bharatiya Sakshya Adhiniyam) presumes that once the handwriting of attesting witness is proved he has witnessed the execution of the document. The twin requirement of proving the signature and handwriting has to be in accordance with S.67 of the Indian Evidence Act (Section 67 of the Bharatiya Sakshya Adhiniyam).

In, K. Laxamanan v. Thekkayil Padmini (2009) 1 SCC 354: AIR 2009 SC 951, the Supreme Court while considering S.69 of the Evidence Act (Section 68 of the Bharatiya Sakshya Adhiniyam), held as under: –

“Since both the attesting witnesses have not been examined, in terms of S.69 of the Act (Section 68 of the Bharatiya Sakshya Adhiniyam) it was incumbent upon the appellant to prove that the attestation of one attesting witness at least is in his handwriting and that the signature of the person executing the document is in the handwriting of that person. …”

 In Kalyanswami (died) by L.Rs. v. L. Bakthavatsalam (D) Thr. L.Rs., 2020 SCC Online SC 584: AIROnline 2020 SC 644, the Supreme Court while dealing with S.69 of the Evidence Act (Section 68 of the Bharatiya Sakshya Adhiniyam) held as under: –

” Reverting back to S.69 of the Evidence Act (Section 68 of the Bharatiya Sakshya Adhiniyam), we are of the view that the requirement therein would be if the signature of the person executing the document is proved to be in his handwriting, then attestation of one attesting witness is to be proved to be in his handwriting. In other words, in a case covered under S.69 of the Evidence Act (Section 68 of the Bharatiya Sakshya Adhiniyam), the requirement pertinent to S.68 of the Evidence Act (Section 67 of the Bharatiya Sakshya Adhiniyam)that the attestation by both the witnesses is to be proved by examining at least one attesting witness, is dispensed with. It may be that the proof given by the attesting witness, within the meaning of S.69 of the Evidence Act (Section 68 of the Bharatiya Sakshya Adhiniyam), may contain evidence relating to the attestation by the other attesting witness but that is not the same thing as stating it to be the legal requirement under the Section to be that attestation by both the witnesses is to be proved in a case covered by S.69 of the Evidence Act (Section 68 of the Bharatiya Sakshya Adhiniyam). In short, in a case covered under S.69 of the Evidence Act (Section 68 of the Bharatiya Sakshya Adhiniyam), what is to be proved as far as the attesting witness is concerned, is, that the attestation of one of the attesting witness is in his handwriting.”

In, Om Prakash (Dead) Thr. His Lrs. v. Shanti Devi and Others AIR 2015 SC 976: 2015 (4) SCC 601, the Supreme Court explained the ambit of the provision as under:

S.69 (Section 68 of the Bharatiya Sakshya Adhiniyam) provides for “proof where no attesting witness found”. It is at once apparent that this provision anticipates a reasonable anxiety emerging out of the peremptoriness of S.68 (Section 67 of the Bharatiya Sakshya Adhiniyam), in that it addresses, inter alia, a situation where none of the attesting witnesses to a document (a gift deed, in this case) are alive at the time of the curial investigation thereof. Not leaving litigants forlorn for proof under S.68, S.69 (Sections 67 and 68 of the Bharatiya Sakshya Adhiniyam) places emphasis on handwriting(s) of the putative deceased or the ‘not found’ attestator(s), along with the signatures of the executant. We must be quick to elucidate that the position is akin to the reception of secondary evidence, in that the successful passage from the rigours of S.68 (Section 67 of the Bharatiya Sakshya Adhiniyam) can be met contingent upon the proved non – availability of the attesting witnesses to a document. Litigants are, therefore, not faced with an evidentiary cul – de – sac. They can discharge their burden by proving, in the alternate mode and manners conceived by the Act, the signatures of the putative attestators along with the handwriting of the executant. The Appellant herein palpably failed in proving the signatures of the attestators to the Gift Deed, and, therefore, has pursued his case by evoking S.90 (Section 92 of the Bharatiya Sakshya Adhiniyam)as the cornerstone of his pleadings.

10. Admission of execution by party to attested document

Section 69 of the Bharatiya Sakshya Adhiniyam, (Section 70 of the Evidence Act) reads as:

The admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested.

This provision does not apply in the case of a will as the will comes into operation after the death of the testator and at the time proceedings relating to the will happens before the court the testator would be no more.

11. Application of Section 70 – When the Attesting Witness Denies or Does Not Recollect The Execution – Execution should be proved by Other Evidence

Section 70 of the Bharatiya Sakshya Adhiniyam (Section 71 of the Evidence Act) reads as under:

Proof when attesting witness denies the execution.

If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.

This provision dilutes the rigour of Section 67 of the Bharatiya Sakshya Adhiniyam.

The decision Janki Narayan Bhoir Vs. Narayan Namdeo Kadam 2003 (2) SCC 91, witnessed a fact situation where one of the attesting witnesses of the Will, though both were alive at the relevant time, was produced to prove the execution thereof. The scribe of the document was also examined. The attesting witness deposed that he had not seen the other witness present at the time of execution of the Will and further he did not remember as to whether he along with the latter were present either when the testator had put his signature on the Will or that he had identified the person who had put the thumb impression on the document. The issue raised before the Court was that the evidence of the said attesting witness had failed to establish the attestation of the Will by the other attesting witness who though available had not been examined and thus the Will was not proved. The contrary plea was that though S.63 of the Succession Act required attestation of a Will by at least two witnesses, it could be proved by examining one attesting witness as per S.68 of the Evidence 1872 Act (Section 67 of the Bharatiya Sakshya Adhiniyam) and by furnishing other evidence as per the S.71 thereof (Section 70 of the Bharatiya Sakshya Adhiniyam). While dwelling on the respective prescripts of S.63 of the Act and S.68 and S.71 of Act 1872 (Section 67 and 70 of the Bharatiya Sakshya Adhiniyam) vis – à – vis a document required by law to be compulsorily attested, it was held that if an attesting witness is alive and is capable of giving evidence and is subject to the process of the Court, he / she has to be necessarily examined before such document can be used in evidence. It was expounded that on a combined reading of S.63 of the Act and S.68 of the Evidence Act 1872 (Section 67 of the Bharatiya Sakshya Adhiniyam), it was apparent that mere proof of signature of the testator on the Will was not sufficient and that attestation thereof was also to be proved as required by S.63 (c) of the Act. It was, however, emphasised that though S.68 of the Evidence Act 1872 Act (Section 67 of the Bharatiya Sakshya Adhiniyam) permits proof of a document compulsorily required to be attested by one attesting witness, he / she should be in a position to prove the execution thereof and if it is a Will, in terms of S.63 (c) of the Succession Act, viz., attestation by two attesting witnesses in the manner as contemplated therein. It was exposited that if the attesting witness examined besides his attestation does not prove the requirement of the attestation of the Will by the other witness, his testimony would fall short of attestation of the Will by at least two witnesses for the simple reason that the execution of the Will does not merely mean signing of it by the testator but connotes fulfilling the proof of all formalities required under S.63 of the Succession Act. It was held that where the attesting witness examined to prove the Will under S.68 of 1872 Act (Section 67 of the Bharatiya Sakshya Adhiniyam) fails to prove the due execution of the Will, then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects.

Qua S.71 of 1872 Act (Section 70 of the Bharatiya Sakshya Adhiniyam), it was held to be in the form of a safeguard to the mandatory provision of S.68 (Section 67 of the Bharatiya Sakshya Adhiniyam) to cater to a situation where it is not possible to prove the execution of the Will by calling the attesting witnesses though alive i.e. if the witnesses either deny or do not recollect the execution of the Will. Only in these contingencies by the aid of S.71 (Section 70 of the Bharatiya Sakshya Adhiniyam), other evidence can be furnished. It was further clarified that S.71 of Act 1872 (Section 70 of the Bharatiya Sakshya Adhiniyam) would have no application to a case where one attesting witness who alone had been summoned fails to prove the execution of the Will and the other attesting witness though available to prove the execution of the same, for reasons best known, is not summoned before the Court.

The Supreme Court underlined that S.71 of the Act 1872 (Section 70 of the Bharatiya Sakshya Adhiniyam) was meant to lend assistance and come to the rescue of a party who had done his best, but driven to a state of helplessness and impossibility and cannot be let down without any other opportunity of proving the due execution of the document by other evidence. That, however, S.71 (Section 70 of the Bharatiya Sakshya Adhiniyam) cannot be invoked so as to absolve the party of his obligation under S.68 (Section 67 of the Bharatiya Sakshya Adhiniyam) read with S.63 of the Act and to liberally allow him, at his will or choice, to make available or not, necessary witness otherwise available and amenable to jurisdiction of the Court, was highlighted in emphatic terms. That no premium upon such omission or lapse so as to enable him to give a go – bye to the mandates of law relating to proof of execution of a Will, as contemplated by these statutory provisions, was precisely underlined. In the facts and circumstances of that case, as the second attesting witness though available had not been summoned, the benefit of S.71 of Act 1872 (Section 70 of the Bharatiya Sakshya Adhiniyam) was not extended. The Will was thus held to be not proved for the failure of the attesting witness so produced, to testify as per the ordainment of S.63 (c) of the Act.

A Will as an instrument of testamentary disposition of property being a legally acknowledged mode of bequeathing a testator’s acquisitions during his lifetime, to be acted upon only on his / her demise, it is no longer res integra, that it carries with it an overwhelming element of sanctity. As understandably, the testator / testatrix, as the case may be, at the time of testing the document for its validity, would not be available, stringent requisites for the proof thereof have been statutorily enjoined to rule out the possibility of any manipulation. This is more so, as many a times, the manner of dispensation is in stark departure from the prescribed canons of devolution of property to the heirs and legal representatives of the deceased. The rigour of S.63 (c) of the Act and S.68 of 1872 Act is thus befitting the underlying exigency to secure against any self-serving intervention contrary to the last wishes of the executor.

Viewed in premise, S.71 of the 1872 Act (Section 70 of the Bharatiya Sakshya Adhiniyam) has to be necessarily accorded a strict interpretation. The two contingencies permitting the play of this provision, namely, denial or failure to recollect the execution by the attesting witness produced, thus a fortiori has to be extended a meaning to ensure that the limited liberty granted by S.71 of 1872 Act (Section 70 of the Bharatiya Sakshya Adhiniyam) does not in any manner efface or emasculate the essence and efficacy of S.63 of the Act and S.68 of 1872 Act (Section 67 of the Bharatiya Sakshya Adhiniyam). The distinction between failure on the part of an attesting witness to prove the execution and attestation of a Will and his or her denial of the said event or failure to recollect the same, has to be essentially maintained. Any unwarranted indulgence, permitting extra liberal flexibility to these two stipulations, would render the predication of S.63 of the Act and S.68 of the 1872 Act (Section 67 of the Bharatiya Sakshya Adhiniyam), otiose. The propounder can be initiated to the benefit of S.71 of the 1872 Act only if the attesting witness / witnesses, who is / are alive and is / are produced and in clear terms either denies / deny the execution of the document or cannot recollect the said incident. Not only, this witness / witnesses has / have to be credible and impartial, the evidence adduced ought to demonstrate unhesitant denial of the execution of the document or authenticate real forgetfulness of such fact. If the testimony evinces a casual account of the execution and attestation of the document disregardful of truth, and thereby fails to prove these two essentials as per law, the propounder cannot be permitted to adduce other evidence under cover of S.71 of the 1872 Act (Section 70 of the Bharatiya Sakshya Adhiniyam). Such a sanction would not only be incompatible with the scheme of S.63 of the Act read with S.68 of the 1872 Act but also would be extinctive of the paramountcy and sacrosanctity thereof, a consequence, not legislatively intended. If the evidence of the witnesses produced by the propounder is inherently worthless and lacking in credibility, S.71 of Act 1872 (Section 70 of the Bharatiya Sakshya Adhiniyam) cannot be invoked to bail him (propounder) out of the situation to facilitate a roving pursuit. In absence of any touch of truthfulness and genuineness in the overall approach, this provision, which is not a substitute of S.63 (c) of the Succession Act and S.68 of the 1872 Act (Section 67 of the Bharatiya Sakshya Adhiniyam), cannot be invoked to supplement such failed speculative endeavour

S.71 of the 1872 Act (Section 70 of the Bharatiya Sakshya Adhiniyam), even if assumed to be akin to a proviso to the mandate contained in S.63 of the Act and S.68 of the 1872 Act (Section 67 of the Bharatiya Sakshya Adhiniyam, it has to be assuredly construed harmoniously therewith and not divorced therefrom with a mutilative bearing.

These underlying principles are reiterated in many judgments.

 (See also the Commission of Income Tax, Madras Appellant V Ajax Products Limited Respondent AIR 1965, SC 1358 and Jagdish Chand Sharma v. Narain Singh Saini (Dead) Through His Lrs and Others AIR 2015 SC 2149: 2015 (8) SCC 615)

12. Proof Of Will – Main Features – Case Law

When a party claims right in the property as per a will, it is for him to prove the will before the Court as provided under Section 67 of the Bharatiya Sakshya Adhiniyam (S.68 of the Evidence Act). Without proving the will as provided under the law, he cannot rely on the same to claim right in the property. It should be proved that the testator was in a sound and disposing state of mind and memory. The propounder is bound to explain and clear all suspicious circumstances. Suspicious circumstances may be in the nature doubtful signature, feeble mind of the testator, overawed state induced by powerful and interested quarters, prominent role of the propounder, unnatural, improbable and unfair bequests. The Court must be satisfied of the testator’s free will and mind in order to uphold the genuiness of the Will.

a. Apart From Compliance Of Section 68 Proof Of Will Doesn’t Differ From proof of Other Documents

In Sridevi and others v. Jayaraja Shetty and others, 2005 (2) SCC 784: AIR 2005 SC 780, Supreme Court paragraph Nos. 11 and 14 observed as under:

‘ It is well settled proposition of law that mode of proving the Will does not differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a Will by S.63 of the Indian Succession Act, 1925. The onus to prove the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and proof of the signature of the testator, as required by law, need be sufficient to discharge the onus. Where there are suspicious circumstances, the onus would again be on the propounder to explain them to the satisfaction of the Court before the Will can be accepted as genuine. Proof in the either case cannot be mathematically precise and certain and should be one of satisfaction of a prudent mind in such matters. In case the person contesting the Will alleges undue influence, fraud or coercion, the onus will be on him to prove the same. As to what are suspicious circumstances has to be judged in the facts and circumstances of each particular case….’

The propounder of the Will has to show that the Will was signed by the testator; that he was at the relevant time in sound disposing state of mind; that he understood the nature and effect of dispositions and had put his signatures to the testament of his own free will and that he had signed it in the presence of the two witnesses who attested in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged…’

The Supreme Court in Janki Narayan Bhoir v. Narayan Namdeo Kadam, 2003 (2) SCC 91: AIR 2003 SC 761 further, laid down the law as under:

“In a way, S.68 (Section 67 of the Bharatiya Sakshya Adhiniyam) gives a concession to those who want to prove and establish a will in a Court of law by examining at least one attesting witness even though the will has to be attested at least by two witnesses mandatory under S.63 of the Succession Act. But what is significant and to be noted is that one attesting witness examined should be in a position to prove the execution of a will. To put in other words, if one attesting witness can prove execution of the will in terms of clause (c) of S.63 viz. attestation by two attesting witnesses in the manner contemplated therein, the examination of the other attesting witness can be dispensed with. The one attesting witness examined, in his evidence has to satisfy the attestation of a will by him and the other attesting witness in order to prove there was due execution of the will……..”

The initial onus of proving the execution of the will rests upon the propounder and the will has to be proved like any other document under the provisions of the Indian Evidence Act besides proving the attestation of the execution by the witnesses. In the event there are suspicious circumstances surrounding the execution of the will, the onus of explaining the circumstances which look suspicious and removing the suspicion from the mind of the Court rests squarely upon the propounder. If any fraud, undue influence and coercion is alleged by the caveator then it is for the caveator to prove the allegation of fraud, undue influence and coercion. If it is shown that the propounder has taken a prominent part in the execution of the will under which he has been conferred substantial benefit, that in itself is generally treated as a suspicious circumstance surrounding the execution of the will and the propounder is required to remove the suspicion by clear and satisfactory evidence. Hard, fast and inflexible rules cannot be laid down and proof depends upon facts and circumstances of each case. (Vide, Rani Purnima Debi v. Kumar Khagendra Narayan Deb AIR 1962 SC 567, Shashi Kumar Banerjee v. Subodh Kumar Banerjee AIR 1964 SC 529, Gorantla Thatarah v. Thotakura, AIR 1968 SC 1332, Ratan Singh and others v Nirmal Gill and others AIR 2021 SC 899).

b. A Will Speaks From The Death Of The Testator And that Does Introduce An Element Of Solemnity In Its Proof

There could be situations where the execution of a Will may be shrouded by suspicious circumstances such as doubtful signature, feeble mind of the testator, overawed state induced by powerful and interested quarters, prominent role of the propounder, unnatural, improbable and unfair bequests indicative of lack of testator’s free will and mind etc. In all such eventualities, the conscience of the Court has to be satisfied and thus the nature and quality of proof must be commensurate to such essentiality so much so to remove any suspicion which may be entertained by any reasonable and prudent man in the prevailing circumstances.

The Supreme Court in H. Venkatachala Iyengar v B. N. Thimmajamma and Others AIR 1959 SC 443 (T. L. Venkatarama Ayyar; *P. B. Gajendragadkar; A. K. Sarkar, JJ,) while dilating on the statutory requisites of valid execution of a Will, observed that unlike other documents this testamentary instrument speaks from the death of the testator and by the time when it is produced before a Court, the testator had departed from his temporal state and is not available to own or disown the same. It was thus emphasised that this does introduce an element of solemnity in the decision on the question as to whether the document propounded is proved to be the last Will and testament of the departed testator. In this context, it was emphasised that the propounder would be required to prove by satisfactory evidence that

  • the Will was signed by the testator,
  • he at the relevant time was in a sound and disposing state of mind,
  • he understood the nature and effect of the dispositions, and that
  • he put his signature to the document of his own free will.

It was observed that ordinarily when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator’s mind and his signature as required by law, the court would be justified in making a finding in favour of the propounder signifying that he / she had been able to discharge his / her onus to prove the essential facts.

The necessity of removal of the suspicious circumstances attendant on the execution of the Will, however, was underlined as well. That no hard and fast or inflexible rule can be laid down for the appreciation of the evidence to this effect was acknowledged.

The propounder has to demonstrate that the Will was signed by the testator and that he was at the relevant time in a sound disposing state of mind and that he understood the nature and effect of the disposition and further that he had put his signature to the testament on his own free will and that he had signed it in presence of two witnesses who had attested it in presence and in the presence of each other.

In Surendra Pal and Ors. Vs. Dr. (Mrs.) Saraswati Arora and Anr 1995 (4) SCC 459. It was observed that, there could be situations where the execution of a Will may be shrouded by suspicious circumstances such as doubtful signature, feeble mind of the testator, overawed state induced by powerful and interested quarters, prominent role of the propounder, unnatural, improbable and unfair bequests indicative of lack of testator’s free will and mind etc. In all such eventualities, the conscience of the Court has to be satisfied and thus the nature and quality of proof must be commensurate to such essentiality so much so to remove any suspicion which may be entertained by any reasonable and prudent man in the prevailing circumstances. It was propounded further that where the caveator alleges undue influence, fraud and coercion, the onus, however, would be on him to prove the same, and on his failure, probate of the Will must necessarily be granted if it is established that the testator had full testamentary capacity and had in fact executed it validly with a free will and mind.

 (See Jagdish Chand Sharma v. Narain Singh Saini (Dead) Through His Lrs and Others AIR 2015 SC 2149 : 2015 (8) SCC 615)

 

In the case of Ramachandra v. Champabia, AIR 1965 SC 357. The Supreme Court held as follows:

“… apart from suspicious circumstances of this kind where it appears that the propounder has taken a prominent part in the execution of the will which confers substantial benefits on him that itself is generally treated as a suspicious circumstances attending the execution of the will and the propounder is required to remove the suspicion by clear and satisfactory evidence. In other words, the propounder must satisfy the conscience of the court that the document upon which he relies is the last will and testament of the testator.”

In the case of Jaswant Kaur v. Amrit Kaur, 1977 (1) SCC 369 the Supreme Court reiterated the principles governing the proof of a Will which is alleged to be surrounded by suspicious circumstances. Justice Chandrachud speaking for the Court observed as follows:

“The defendant who is the principal legatee and for all practical purposes the sole legatee under the will, is also the propounder of the will. It is he who set up the will in answer to the plaintiff’s claim in the suit for a one – half share in her husband’s estate. Leaving aside the rules as to the burden of proof which are peculiar to the proof of testamentary instruments, the normal rule which governs any legal proceeding is that the burden of proving a fact in issue lies on him who asserts it, not on him who denies it. In other words, the burden lies on the party which would fail in the suit if no evidence were led on the fact alleged by him. Accordingly, the defendant ought to have led satisfactory evidence to prove the due execution of the will by his grandfather Sardar Gobinder Singh.

c. Duty to rebut Suspicious Circumstances and Significance Of The Evidence Of The Sub Registrar Who Registered The Will

In Smt. Jaswant Kaur Vs Smt. Amrit Kaur and Ors., AIR 1977 SC 74 :1977 (1) SCR 925 the Supreme Court held that suspicion generated by the distrustful circumstances cannot be removed by the mere assertion of the propounder that the Will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory when the Will was made or that those like the wife and children of the testator, who would normally receive their due share in the estate, were disinherited because the testator might have had seen reasons for excluding them. It was underscored that it was obligatory for the propounder to remove all legitimate suspicions before the document could be accepted as the last Will of the testator.

The Supreme Court observed:

In cases where the execution of a will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the Court’s conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the will is such as to satisfy the conscience of the court that the will was duly executed by that testator. It is impossible to reach such satisfaction unless the party which sets up the will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the will.

The Supreme Court has repeatedly held that, witnesses to the Will, if interested for the propounder is perceived to be a suspicious circumstance, the same would lose significance if the document is registered and the Sub Registrar does certify that the same had been read over to the executor who on doing so admits the contents.

In Pentakota Satyanarayana and Ors. Vs. Pentakota Seetharatnam and Ors 2005 (8) SCC 67, The Will was registered and the signature of the testator was identified by two witnesses whereupon the Sub Registrar had signed the document. In this textual premise, it was held that the signatures of the registering officer and of the identifying witnesses affixed to the registration endorsement did amount to sufficient attestation within the meaning of the Act. It was held as well that the endorsement of the Sub Registrar that the executant had acknowledged before him the execution, did also amount to attestation. The facts revealed that the Will was executed before the Sub Registrar on which the signature of the testator as well as signature and the thumb impression of the identifying witnesses were taken by the said authority, whereafter the latter signed the deed. In general terms, it was observed that registration of the Will per se did not dispense with the need of proving its execution and the attestation in the manner as provided in S.68 of the 1872 Act. It was enunciated as well that execution consisted of signing a document, reading it over and understanding and completion of all formalities necessary for the validity of the act involved.

(See Jagdish Chand Sharma v. Narain Singh Saini (Dead) Through His Lrs and Others AIR 2015 SC 2149: 2015 (8) SCC 615)

d. Allegation of Undue Influence, Fraud and Coercion – Burden of Proof on one who alleges

In Shashi Kumar Banerjee and others v. Subodh Kumar Bannerjee and others, AIR 1964 SC 529, a Constitution Bench of the Supreme Court, while dealing with a mode of proof of a will, reiterated that where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same.

e. When Will is Proved the Contents Are Part of Evidence

In, Dhanpat v. Sheo Ram (Deceased) Through Lrs. and Others AIR 2020 SC 2666: 2020 (16) SCC 209L (Nageswara Rao; Hemant Gupta, JJ), the Supreme Court observed:

Once the Will has been proved then the contents of such document are part of evidence. Thus, the requirement of S.63 of the Act and S.68 of the Evidence Act (Section 67 of the Bharatiya Sakshya Adhiniyam) stands satisfied. The witness is not supposed to repeat in a parrot like manner the language of S.68 of the Evidence Act (Section 67 of the Bharatiya Sakshya Adhiniyam). It is a question of fact in each case as to whether the witness was present at the time of execution of the Will and whether the testator and the attesting witnesses have signed in his presence. The statement of the attesting witness proves the due execution of the Will apart from the evidence of the scribe and the official from the Sub-Registrar’s office.

f. Proof of Will – Summary/Summing Up

In H. Venkatachala Iyengar v B. N. Thimmajamma and Others AIR 1959 SC 443, succinctly laid down the following propositions:

  1. Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
  2. Since S.63 of the Succession Act required a will to be attested, it cannot be used as evidence until, as required by S.68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence.
  3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity, in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
  4. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the Court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
  5. It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.
  6. If a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter.
  1. Whether Section 67 Procedure Is Mandatory When Execution Of The Will Is Admitted Or Not Specifically Disputed/Denied- Whether Section 58 of the Evidence Act Overrides Section 67

Section 58 of the Evidence Act reads as under:

“No fact need be proved in any proceeding which the parties thereto their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings:

Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.”

Whether Section 67 of the Bharatiya Sakshya Adhiniyam (Section 68 of the Evidence Act) procedure Is mandatory when execution of the will Is admitted is an issue where there is conflict of views.

It is held in Ramesh Verma and others v. Lajesh Saxena and others, 2017 (1) SCC 257: AIR 2017 SC 494, by the Supreme Court as follows:

“A will like any other document is to be proved in terms of the provisions of S.68 of the Evidence Act and the Succession Act, 1925. The propounder of the will is called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the disposition and put his signature to the document on his own free will and the document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. This is the mandate of S.68 of the Evidence Act (Section 67 of the Bharatiya Sakshya Adhiniyam) and the position remains the same even in a case where the opposite party does not specifically deny the execution of the document in the written statement.” (See also, Srinivas S. R and others v Padmavathamma 2010 (5) SCC 274)

The underlined observation is in the nature of obiter dicta only. Still, it carries much weight as it is an observation of the Supreme Court.

High Court Judgments Holding that When Execution Of The Will Is Admitted There is No Requirement to Comply Section 67 of the Bharatiya Sakshya Adhiniyam

It was held by a division bench of the Kerala High Court in Thayyullathil Kunhikannan and others v. Thayyullathil Kalliani and others, AIR 1990 Ker. 226 as follows:

“S.68 (Section 67 of the Bharatiya Sakshya Adhiniyam) states that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness atleast has been called for the purpose of proving its execution, if there be an attesting witness alive. The proviso to the section which was introduced by the amending Act 31 of 1926 makes an exception in the case of any document, not being a Will, which has been registered, unless its execution by the persons by whom it purports to have been executed, is specifically denied. The fact that the proviso is not applicable to Wills, and that it does not make an exception in the case of registered Wills, does not lead to any inference that a Will cannot be acted upon or used as evidence, unless it has been proved by examining an attesting witness. The only effect of the proviso is that registration of the Will by itself does not obviate the necessity of calling an attesting witness to prove it, if it is otherwise required to be proved. The proviso does not speak of a case where a Will is not in dispute. S.68 relates to those documents which require to be proved at the trial of a suit. If by any rule of law or of pleadings, such proof is not required, S.68 (Section 67 of the Bharatiya Sakshya Adhiniyam) cannot operate to insist on formal proof by calling an attesting witness. S.58 (Section 53 of the Bharatiya Sakshya Adhiniyam)has to be read as overriding S.68 (Section 67 of the Bharatiya Sakshya Adhiniyam) and has obviating the necessity for calling an attesting witness, unless the execution of the Will or the attestation is in dispute. In the absence of any such plea in the written statement, it will be the height of technicality and waste of judicial time to insist on examination of an attesting witness, before a Will could be used as evidence.”

In Princelal G. v. Prasannakumari and Others, ILR 2009 (3) Ker. 221, a single judge followed Thayyullathil Kunhikannan and held as follows:

“There can be no dispute that a Will is a document which is required by law to be attested thereby attracting the main part of S.68 of the Evidence Act (Section 67 of the Bharatiya Sakshya Adhiniyam). The rigour of the said section that a document which is required by law to be attested shall not be used in evidence until atleast one of the attesting witnesses, if alive, has been called for the purpose of proving its execution, is taken away by the proviso to the said section which indicates that the mandate of calling atleast one of the witnesses in proof of execution will be insisted only if the execution of the document is specifically denied. But then, again a Will is exempted from the operation of the proviso. That only means that even if the execution of a Will is not specifically denied (eg: where there is an evasive denial or where the party setting up the Will is put to proof by the opposite party or where the opposite party pleads ignorance about the Will propounded), the person setting up the Will has to call at least one of the attesting witnesses in proof of the execution. But where the execution of the Will is expressly admitted, then neither S.68 nor its proviso is attracted obliging the propounder of the Will to prove due execution of the Will. That was the reason why the Division Bench held that the propounder of the Will is absolved of the obligation of calling at least one of the attesting witnesses in proof of execution because the execution of the Will is an admitted fact which by virtue of S.58 of the Evidence Act need not be proved.”

It was held by A Division Bench of High Court of Kerala, in Maya Siva Sankar and Another v. Sathi and Another, 2011 (2) KLT 432 as follows:

“.. In the absence of specific denial of the Wills, it is not further necessary to probe for evidence in proof of execution of those Wills in terms of the provisions of the Evidence Act.”

See also Boomathi v Murugeshan 2023 (2) Madras LJ 684, P. Radha v Irudayadoss of Madras High Court, Rajeev Gupta v Prashant Garg 2022(1) All LJ 435.

High Court Judgments Holding that Even When Execution Of The Will Is Admitted There is Requirement to Comply Section 67

A Single Judge of the High Court of Kerala noticed that no distinction is drawn by the statutory provision between an admitted Will and a disputed Will in the mode of proof of execution. It was held in Poulose A. V. v. Indira M. R. and Others, 2010 KHC 6245: ILR 2010 (3) Ker. 388 as follows:

“Two questions arise for consideration. One, in the light of the above dispute, is it not necessary for the propounder of the Will to prove the due execution of the Will. The other question is even if execution of the Will is admitted, still is it not necessary for the plaintiff to prove the Will as per S.68 of the Indian Evidence Act (Section 67 of the Bharatiya Sakshya Adhiniyam).

 A reading of the above provision clearly shows that in the case of a Will, unlike in the case of a gift deed, which if admitted need not be proved, the Will will have to be proved by examining at least one of the attesting witnesses. There is no distinction drawn by the provision between an admitted Will and a disputed Will. In fact a reading of the provision will clearly show that in all cases in which the Will is set up the procedure prescribed in S.68 will have to be followed.”

later it was held in Vadakkayil Gopalan and others v. Vadakkayil Paru and others, 2013 (3) KLT 69 that Thayyullathil Kunhikannan is not good law. The Court observed as follows:

“The learned counsel for the appellant has relied on the decision of another Division Bench of this Court in Thayyullathil Kunhikannan and Others v. Thayullathil Kalliani and Others, 1990 KHC 296 : 1990 (1) KLJ 114 : AIR 1990 Ker. 226, to argue that in the absence of any specific denial of execution and attestation of Ext.A1 in the written statement of first defendant, any further proof of Ext.A1 is not expected. In the said decision it was held that the fact that the proviso to S.68 of the Indian Evidence Act is not applicable to Wills, and that it does not make any exception in the case of registered Wills, does not lead to an inference that a Will cannot be acted upon or used as evidence, unless it has been proved by examining an attesting witness, It was further held that the proviso does not speak of a case where the Will is not in dispute and that if by any rule of law or of pleadings, such proof is not required, S.68 cannot operate to insist on formal proof by calling an attesting witness. With respect, we find that the said propositions enunciated in the said decision are not good law in view of H. Venkatachala Iyengar’s case (supra), which was subsequently followed bv the Apex Court consistently in many of the subsequent decisions. In a case wherein the High Court has held that proof of the Will was not necessary as the execution of the Will has been admitted in the pleadings, the Apex Court has held in S. R. Srinivas and Others v. S. Padmavathamma, 2010 (5) SCC 274: 2010 (4) SCALE 245 that it becomes evident that the execution of a Will can be held to have been proved when the statutory requirements for proving the Will are satisfied. It was further held therein that such admission in the pleadings can only be about ‘the making of the Will and not the genuineness of the Will.

…the decision of this Court in Thayyullathil Kunhikannan’s case, 1990 KHC 296 : 1990 (1) KLJ 114 : AIR 1990 Ker. 226 regarding the proof of Will in the absence of specific denial in the written statement, does not lay down good law. Even the absence of any specific denial of execution of a Will will not absolve the duty of the propounder of a Will to prove its genuineness and the further duty to dispel all the suspicious circumstances, if any, surrounding its execution. The doctrine of dependent relative revocation also does not absolve the burden of the propounder of the earlier Will from proving its genuineness or its due execution, and the further burden to dispel all the suspicious circumstances, surrounding its execution.”

In, Sarada and Others v Radhamani and others 2017 (2) KLT 327 (V. Chitambaresh; Sathish Ninan, JJ), another Division Bench of the High Court of Kerala observed:

There is a world of difference between the factum of a document akin to the Will being admitted under S.58 of the Act and proof of due execution of the Will under S.68 of the Act. The due execution of the Will cannot be proved otherwise than by recourse to S.68 of the Act and S.63 of the Indian Succession Act, 1925 as has been held time and again. The general provisions of S.58 of the Act (Section 53 of the Bharatiya Sakshya Adhiniyam) has obviously to give way to the special provisions of S.68 of the Act (Section 67 of the Bharatiya Sakshya Adhiniyam) which govern documents required by law to be attested. That some documents are required by law to be attested imply that law gives additional solemnity empowering the executants with rights and obligations thereunder. S.68 of the Act (Section 67 of the Bharatiya Sakshya Adhiniyam)operates as an exception in relation to documents required by law to be attested and cannot be said to be subject to S.58 of the Act (Section 53 of the Bharatiya Sakshya Adhiniyam)by any stretch of imagination. No distinction has been drawn by the statutory provision between an ‘admitted Will’ and a ‘disputed Will’ as has been rightly observed by Mr. Justice P. Bhavadasan in Poulose A. V.’s case (supra). One of the attesting witnesses if he be alive should be called for the purpose of proving its execution whenever a Will is used as evidence and for whatever purpose.

We follow Ramesh Verma’s case (2017 (1) SCC 257: AIR 2017 SC 494), and approve the dictum in Poulose A. V.’s case as well as Vadakkayil Gopalan’s case (supra) as regards the necessity to examine one attesting witness atleast in evidence. The decisions in Thayullathil Kunhikannan’s case, Princelal G.’s case and Maya Siva Sankar’s case (supra) to the extent it obviates such necessity are declared per incuriam..”

 

But again, a single judge of the High Court of Kerala in Sreelatha and others v Santha and Another, 2022 (1) KLT 150, took a contrary view and held:

The mandate incorporated under S.68 of the Evidence Act (Section 67 of the Bharatiya Sakshya Adhiniyam) by the inclusion of the expression that “it shall not be used as evidence” shall not be interpreted so as to reject an admission made by the contesting party regarding due execution of a Will or testament. The general principle governing admission of document is equally applicable in the case of a Will or testament. Only when it is brought under challenge, the requirement under S.68 of the Evidence Act (Section 67 of the Bharatiya Sakshya Adhiniyam) would come into play. Hence, the said expression cannot be applied to a document, which is not under challenge. The requirement of summoning at least one of the attesting witnesses in proof of a testament or a Will as mandated under S.68 of the Evidence Act (Section 67 of the Bharatiya Sakshya Adhiniyam) shall not be read so as to offend the application of S.58 of the Evidence Act (Section 53 of the Bharatiya Sakshya Adhiniyam) incorporated under the very same Chapter viz., Chapter III in Part II of the Evidence Act. The proviso attached to S.58 (Section 53 of the Bharatiya Sakshya Adhiniyam) gives a discretion to the Court to require the facts to be proved otherwise than by such admission

In order to clear out the above acrimony of conflicting judgments an authoritative to the point judgment of the supreme court is the need of the hour to have a uniform interpretation of the provision.

This author is of the view that when the opposite party admits the will the courts should not become hyper technical and insist for compliance of section 67 (Section 68 of the Evidence Act).

14. Whether The Presumption Under Section 92 of the Bharatiya Sakshya Adhiniyam Is Available To A Will Which Is More Than 30 Years Old

Section 92 of the Bharatiya Sakshya Adhiniyam (Section 90 of the Evidence Act) is founded on necessity and convenience because it is extremely difficult and sometimes not possible to lead evidence to prove handwriting, signature or execution of old documents after lapse of thirty years. In order to obviate such difficulties or improbabilities, to prove the execution of an old document, S.90 has been incorporated in the Evidence Act, 1872, (Section 92 of the Bharatiya Sakshya Adhiniyam) which does away with the strict rule of proof of private documents. Presumption of genuineness may be raised, if the document in question is raised from proper custody. It is however, the discretion of the Court to accept the presumption flowing from S.90(Section 92 of the Bharatiya Sakshya Adhiniyam). There is however, no manner of doubt that judicial discretion under S.90 (Section 92 of the Bharatiya Sakshya Adhiniyam) should not be exercised arbitrarily and not being informed by reasons. (See: Laxmi Barvah v. Padma Kanta Lalita (1996) 8 SCC 357: AIR 1996 SC 1253)

In, Om Prakash (Dead) Thr. His Lrs. v. Shanti Devi and Others AIR 2015 SC 976: 2015 (4) SCC 601, the Supreme Court considered the issue as to the date of computation of 30 years held as under:

Under S.90 (Section 92 of the Bharatiya Sakshya Adhiniyam), before any question of presuming a document’s valid execution can emerge, the document must purport and be proved to be thirty years old. The law surrounding the date of computation of the elapse of thirty – years stands long – settled, since the verdict of the Privy Council in Surendra Krishna Roy v. Mirza Mahammad Syed Ali Mutawali, AIR 1936 PC 15, which held that the period of thirty years is to be reckoned, not from the date upon which the Deed is filed in Court but from the date on which, it having been tendered in evidence, its genuineness or otherwise becomes the province of proof.

On the issue of whether the presumption under S.90 of the Evidence Act is available to a will which is more than 30 years old, there is conflict of judicial views.

In, Probhat Chandra Kanrar and Others v. Rani Bala Kanrar and Others AIR 1989 Cal. 202, the Calcutta High Court, succinctly laid down the law as under:

The court may in a proper case rely on the presumption contained in S.90 of the Evidence Act (Section 92 of the Bharatiya Sakshya Adhiniyam). Therefore, the position is fortified that notwithstanding S.68 of the Evidence Act(Section 67 of the Bharatiya Sakshya Adhiniyam), the court in a proper case can make a presumption under S.90 of the Evidence Act(Section 92 of the Bharatiya Sakshya Adhiniyam). The two provisions, S.68 and S.90 of the Evidence Act(Sections 67 and 92 of the Bharatiya Sakshya Adhiniyam), do not militate against each other. Therefore, the right of the court to presume under S.90 (Section 92 of the Bharatiya Sakshya Adhiniyam) is not controlled or curtailed by S.68 of the Evidence Act. We have already observed that whether or not the presumption should be made, will depend upon the facts of the particular case.

A contra view is taken in, Choudhari Budhu Rajwar and Others v. Ramkaran Rang u (died) through L. Rs. and Others 2021 KHC OnLine 4464: AIR 2021 NOC 651 Chhattisgarh High Court held that:

“S.90 of the Evidence Act(Section 92 of the Bharatiya Sakshya Adhiniyam) would have no application in case of Will in view of the strict requirement contained in S.63 (c) of the Indian Succession Act read with S.68 of the Indian Evidence Act (Section 67 of the Bharatiya Sakshya Adhiniyam),” ( See also Manickam N v R Saraswathi and others, AIR 2017 Mad. 35 )

In arriving at the above conclusion the Chhattisgarh High Court relied on, the Supreme Court Judgment in Bharpur Singh v. Shamsher Singh, AIR 2009 SC 1766.

With regard to the question as to whether presumption under S.90 of the Evidence Act (Section 92 of the Bharatiya Sakshya Adhiniyam) would be applicable in the case of Will, the Supreme Court in the case of Bharpur Singh v. Shamsher Singh, AIR 2009 SC 1766 has held that the provisions of S.90 of the Evidence Act would have no application in the case of Will and observed as under: –

“. … The provisions of S.90 of the Indian Evidence Act (Section 92 of the Bharatiya Sakshya Adhiniyam) keeping in view the nature of proof required for proving a Will have no application. A Will must be proved in terms of the provisions of S.63(c) of the Indian Succession Act, 1925 and S.68 of the Indian Evidence Act, 1872 (Section 67 of the Bharatiya Sakshya Adhiniyam). In the event the provisions thereof cannot be complied with, the other provisions contained therein, namely, S.69 and S.70 of the Indian Evidence Act (Sections 68 and 69 of the Bharatiya Sakshya Adhiniyam) providing for exceptions in relation thereto would be attracted. Compliance with statutory requirements for proving an ordinary document is not sufficient, as S.68 of the Indian Evidence Act postulates (Section 67 of the Bharatiya Sakshya Adhiniyam)that execution must be proved by at least one of the attesting witness, if an attesting witness is alive and subject to the process of the Court and capable of giving evidence. (See: B. Venkatamuni v. C.J. Ayodhya Ram Singh and Others (2006) 13 SCC 449: AIR 2007 SC 311).”

Bharpur Singh v. Shamsher Singh – Held Per incurrium Of Larger Bench Decisions In K. V. Subbaraju v. C. Subbaraju, (3 Judges Bench) (AIR 1968 SC 947)

In Narayanan Radhakrishna Menon v Narayanan Sukumara Menon and Others, 2018 (2) KLT 553 (A. Hariprasad, J.), a Single Judge of the High Court of Kerala held that Bharpur Singh v. Shamsher Singh is not a binding decision as it was rendered in contravention to 3 Judges Bench decision in K. V. Subbaraju v. C. Subbaraju, AIR 1968 SC 947. The Court observed:

In Munnalal v. Kashibai, AIR 1947 PC 15 it is contended that a Will more than 30 years old and produced from proper custody should be presumed to be properly executed. Also, the testator should be presumed to be of sound mind at the time of execution. ……. The trial Judge held that the burden rested upon the respondents 1 and 2 to prove the Will. It was also held that though the Court could presume under S.90 of the Evidence Act (Section 92 of the Bharatiya Sakshya Adhiniyam) that the Will had been properly executed and attested, the Court could not, under that Section, presume that the testator, when he made his Will, was of sound disposing mind. Accordingly, the Trial Court held that the Will was not proved. In appeal, the High Court held that the presumption which could be drawn under S.90 of the Evidence Act (Section 92 of the Bharatiya Sakshya Adhiniyam) is extended to the testamentary capacity as well and held the Will stood proved. Noticing Sections 90 and 114 of the Evidence Act (Sections 92 and 119 of the Bharatiya Sakshya Adhiniyam), the Privy Council held thus:

“The Will of Bahadur was more than 30 years old and was produced from proper custody, and both the lower Courts rightly held that the actual execution and attestation of the Will could be presumed under S.90 (Section 92 of the Bharatiya Sakshya Adhiniyam); they differed on the question whether the presumption extended to the testamentary capacity of the testator. A party setting up a Will is required to prove that the testator was of sound disposing mind when he made his Will but, in the absence of any evidence as to the state of the testator’s mind, proof that he had executed a Will rational in character in the presence of witnesses must lead to a presumption that he was of sound mind and understood what he was about. This presumption can be justified under the express provisions of S.90 (Section 92 of the Bharatiya Sakshya Adhiniyam), since a Will cannot be said to be “duly” executed by a person who was not competent to execute it; and the presumption can be fortified under the more general provisions of S.114 (Section 119 of the Bharatiya Sakshya Adhiniyam), since it is likely that a man who performs a solemn and rational act in the presence of witnesses is sane and understands what he is about. There was no evidence whatever that Bahadur was not in a perfectly normal state. Their Lordships feel no doubt that on this point the decision of the High Court was right, and that the Will must be presumed to have been duly executed. The view taken by the learned Subordinate Judge would render it impossible, in most cases, to prove ancient wills. This disposes of the first appeal.”

This decision of the Privy Council came up for consideration before a three Judge Bench of the Supreme Court in K. V. Subbaraju v. C. Subbaraju, AIR 1968 SC 947. The principle therein was approved in the following words:

” As aforesaid, the respondents did not produce the original Will but produced only its certified copy …. Since the Will was executed in 1921 and the testator had died soon after its execution it was not possible to produce either its writer or the witnesses who attested it. It was undisputed that its scribe and the attesting witnesses were all dead except Daltapati Venkatapathi Raju, DW 4. But the appellants’ contention as regards D. W. 4 was that he was not the same person who attested the will. The High Court appears to have relied upon S.90 of the Evidence Act and to have drawn the presumption that the Will being more than 30 years old it was duly executed and attested by the persons by whom it purported to have been executed and attested. Such a presumption, however, under that section arises in respect of an original document. (See Munnalal v. Mt. Kashibai, AIR 1947 PC 15). Where a certified copy of a document is produced the correct position is as stated in Basant Singh v Brij Raj Saran Singh, 67 Ind App 180 : AIR 1935 PC 132 where the Privy Council laid down that if the document produced is a copy admitted under S.65 (Section 60 of the Bharatiya Sakshya Adhiniyam) as secondary evidence and it is produced from proper custody and is over 30 years old only the signatures authenticating the copy can be presumed to be genuine. The production of a copy therefore does not warrant the presumption of due execution of the original document. The Privy Council repelled the argument that where a copy of a Will has been admitted the Court is entitled to presume the genuineness of such Will which purports to be 30 years old. Relying on the words “where any document purporting or proved to be 30 years old” in S.90 (Section 92 of the Bharatiya Sakshya Adhiniyam), the Privy Council held that the production which entitles the Court to draw the presumption as to execution and attestation is of the original and not its copy and that the decisions of the High Courts of Calcutta and Allahabad on which the argument was based were not correctly decided. This view has since then been approved of by this Court in Harihar Prasad v. Deo Narain Prasad, 1956 SCR 1 at p. 9) : AIR 1956 SC 305 at p. 309. The High Court therefore was not entitled to presume from the production of the copy either the execution or the attestation of the said will.”

 Striking difference between the facts in Munnalal and K. V. Subbaraju is that in the former case original Will was produced from proper custody, which was more than 30 years old, but in the latter, a certified copy of Will was produced. In that context, the Supreme Court clearly held that the presumption under Section 90 of the Evidence Act (Section 92 of the Bharatiya Sakshya Adhiniyam)arises in respect of an original document only. The view taken by the High Court in Munnalal that the Will in question, being one more than 30 years old, was duly executed and attested by the person by whom it was purported to have been executed and attested, based on S.90 of the Evidence Act (Section 92 of the Bharatiya Sakshya Adhiniyam), was affirmed by the Privy Council. Further, in Munnalal’s case, it was held that such a presumption under S.90 of the Evidence Act could arise only in respect of an original document. These legal principles were quoted with approval in K. V. Subbaraju.

 Based on the above observations by a three Judge Bench in K. V. Subbaraju, with due respect, I find the declarations of law in Bharpur Singh and M. B. Ramesh (supra) cannot be regarded as binding precedents under Art.141 of the Constitution.

Later, in Narambrath Ramadasan and Others v. N. Leela and Others ILR 2020 (1) Ker. 263, another single judge of the High Court of Kerala observed:

…. a mere production of a document of 30 years old from a proper custody would not itself permit the Court to draw a presumption mechanically. The Courts have to act with extreme caution and with utmost circumspection, having regard to the facts and circumstances of the case, for which the Court must be satisfied that the document produced on its face is free from suspicion and came from proper custody. When it is satisfied, presumption would come into play and if not rebutted, there is no necessity to comply with the mandate under S.68 of the Evidence Act (Section 67 of the Bharatiya Sakshya Adhiniyam) in proof of execution or attestation of a document required by law to be attested including a Will or Codicil.

 

The above view expressed in Narayanan Radhakrishna Menon v Narayanan Sukumara Menon and Others, 2018 (2) KLT 553 (A. Hariprasad, J.), appears to be correct and in appropriate cases Section 90 (Section 92 of the Bharatiya Sakshya Adhiniyam) could be invoked to prove a Will.

15. Proof of document not required by law to be attested

Section 71 of the Bharatiya Sakshya Adhiniyam (Section 72 of the Evidence Act) reads as under:

An attested document not required by law to be attested may be proved as if it was unattested.

With that we come to the close of this Module on the subject ‘Law of Evidence’. Hope you enjoyed and found it useful.

See you again in another module with another interesting topic on the ‘Law of Evidence’.

Option for Payment

The Author has put in a lot of effort in preparing this study material/commentary comprising 28 modules spreading across 1000 pages. If you feel that this material is useful for you, you may send your contributory remuneration to the following phonePe No or to the following Bank Account:

Phonepe No – 9846151718    QR code

Bank Account:

Name – Nizam. A, SB A/c No 30083188312, IFS Code SBIN0003054,

ADB Alleppey Branch, State Bank of India.

Payment is optional and not mandatory

Exercise Questions

  1. What is the mode of proof of execution of a document required to be attested by law? Is there any difference in the case of proof of will and if yes, state the special rule in the mode of proof of will?
  2. Whether the principle embodied in Section 58 of the Evidence Act that Admitted facts need not be proved apply to Wills? Explain
  3. Whether the presumption under S.90 of the Evidence Act is available to a Will which is more than 30 years old? Explain