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‘WILL’ PROOF UPON DENIAL OR UNAVAILABILITY OF ATTESTING WITNESSES By Advocate Rajat Wadhwa

 In absence of any touch of truthfulness and genuineness in the overall approach, these provisions, which are not a substitute of Section 63 (c) of the ISA and Section 68 of the IEA, cannot be invoked to supplement such failed endeavor.
There could be situations for a Propounder of the Will, where, either the attesting witnesses are not available or they deny/disremember its execution. Can such a Will still be proved under the Indian Laws?

It is no more res integra that any Hindu, Buddhist, Sikh or Jain of sound mind and not being a minor can bequeath his or her Property by way of a Will. A ‘Will’ as defined in the Indian Succession Act, 1925 (in short ISA) means a legal declaration of the intention of a Testator with respect to his property, which he desires to be carried into effect upon his death. A ‘Will’ obtained by fraud, coercion or importunity is void in terms of S. 61 of the ISA. A ‘Will’ may be revoked or altered by taking steps provided under S. 70 of the ISA. Since ‘Will’ is a declaration, which takes effect after the death of the Testator, its execution and proof requires a special procedure as prescribed under section 63 of the ISA as well as Section 68 of the Indian Evidence Act, 1872 (in short IEA). The rules for executing a valid unprivileged Will includes the signing of the same by the Testator or affixation of his mark upon the Will or signing by some other person who is present with the Testator upon the directions of the Testator. Furthermore, such signature or mark shall be so placed upon the Will that it appears that the said signature or mark were so placed that it was intended so as to give effect to the writing as a Will.

Since ‘Will’ is a sacrosanct document which comes into force after death of the Executant, the same is required to be attested by two or more witnesses, who have seen either the Testator sign or affix his mark on the said Will or have seen some other person signing the Will in presence and on direction of the Testator. The Attesting Witness can also prove the attestation of the Will if he has received a personal acknowledgment from the Testator of his signature or mark on the Will or acknowledgment regarding signature of other person who has signed in the presence and direction of the Testator. It is also a requirement of Section 63 of the ISA that each of the Attesting Witness has signed the Will in presence of the Testator even though at different times. A ‘Will’ as a document doesn’t require compulsory registration under the Registration Act, 1908 but its registration is preferred by many. It is pertinent to note that Section 68 of the IEA exempts proof of a registered document by an Attesting Witness in certain cases but such an exemption is not available if the registered document is a Will. In order to successfully prove a Will, which is even Registered, at least one Attesting Witness must be called to prove its execution strictly in terms of Section 63 (c) of the ISA. [See Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh (2009) 4 SCC 780]

Supposing no Attesting Witness is available to prove a Will or even if available, he denies or does not recollect its execution. Can the execution of the Will still be proved? The answer to the same is in the affirmative. There could be instances where Attesting Witnesses are dead or cannot prove due execution on account of their old age, ill intention, dementia etc. In such a scenario, Sections 69 and 71 of the IEA will come to the rescue of a Propounder or Beneficiary of the Will. 

Section 69 of the Indian Evidence Act reads as under:

“Proof where no attesting witness found

If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness atleast is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.”

[Emphasis Supplied]

Section 71 of the Indian 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.

[Emphasis Supplied]

 

The above two sections operate in different spheres. Section 69 of IEA specifies the mode of proof required whereas Section 71 IEA only speaks about ‘other evidence’. The criteria to invoke Section 69 of IEA is unavailability of the Attesting Witnesses whereas for invoking Section 71 of the IEA, the Attesting Witnesses have to either deny or forget the execution of a Will.

 

Proof under Section 69 of IEA

It is clear from the plain language of Section 69 of the IEA, it swings into action once the Attesting Witnesses are not available which could inter-alia happen due to death, terminal illness or if they have gone beyond Jurisdiction of the Court having left the Country etc. Incase of unavailability of Attesting Witnesses, one must prove at least one witness’s handwriting or signature on the Will and also that of the Testator through some other Independent Evidence. This ‘Independent’ Evidence could be the evidence of some close relative, accountant, banker, secretary, friend etc. of the Attesting Witness and of the Testator who have seen them write and sign during regular course of life and are thus well acquainted with their handwriting and signatures. Incase of a Registered Will, one could adduce evidence of the Registrar concerned, who had seen both the Testator and an Attesting Witness sign the Will in his presence during the process of registration. Similarly, a family lawyer who may have also seen the Will being signed by the Testator and an Attesting Witness could be a good witness to prove the signatures and/or handwriting. Evidence of a Handwriting expert could be valuable to corroborate such evidence of the Independent Witnesses. The use of Section 69 of IEA is rare but the courts have upheld the validity of a Will with the aid of section 69 when they found evidence and the surrounding circumstances to be satisfactory. 

The Hon’ble Supreme Court in “Babu Singh & Ors. V. Ram Sahai”, (2008) 14 SCC 754, while interpreting Section 69 of the IEA has held that “It would apply, inter alia, in a case where the attesting witness is either dead or out of the jurisdiction of the court or kept out of the way by the adverse party or cannot be traced despite diligent search. Only in that event, the Will may be proved in the manner indicated in Section 69, i.e., by examining witnesses who were able to prove the handwriting of the testator or executant. The burden of proof then may be shifted to others.

Whereas, however, a Will ordinarily must be proved keeping in view the provisions of Section 63 of the Indian Succession Act and Section 68 of the Act, in the event the ingredients thereof, as noticed hereinbefore, are brought on record, strict proof of execution and attestation stands relaxed. However, signature and handwriting, as contemplated in Section 69, must be proved.”

[Emphasis Supplied]

 

The Hon’ble Supreme Court in “Om Prakash vs. Shanti Devi (2015) 4 SCC 601” has held that “Section 69 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 Section 68, 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 Section 68, Section 69 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 Section 68 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.” 

 

Several courts in India have upheld the validity of a Will with the aid of Section 69 of the IEA. The Division Bench of Delhi High Court in “Subhash Nayyar v. Registrar, University of Delhi & Ors.” 202 (2013) DLT 257, while upholding the validity of a Will in question with the aid of Section 69 of the IEA observed “The University/propounder of the Will who was also its executor has discharged this onus. Not only has the execution been proved through the testimony of PW-3 which remained un-rebutted but attestation also stands proved in terms of Section 69 of the Evidence Act through the version of PW-2”. (Also see “A.K. Sabharwal vs. The State and Ors.” 188 (2012) DLT 789 {Del}, Radha Hota vs. Dutika Satpathy and Ors. 48 (1979) CLT 211{Orissa}, G. Vaidehi vs. S. Govindarajan (1992) IIMLJ 393 {TN} )

 

Proof under Section 71 of IEA

So far section 71 of the IEA is concerned, it can be invoked once an attesting witness, though available to prove a Will, either denies or does not recollect its execution. Under such a situation, other evidence could be led to prove due execution of the said Will. 

However, before Section 71 of the IEA could come into play, a propounder of the Will must first explore all the possibilities to prove the Will in terms of Section 63 (c) of the Indian Succession Act, 1925 that is to say that he has called the available Attesting Witnesses to prove the Will in terms of Section 63 (c) of the Indian Succession Act, 1925. However, when the available Attesting Witnesses either deny its execution or cannot recollect the same despite being summoned, “other evidence” could be used to prove the said Execution. The Supreme Court of India in Janki Narayan Bhoir Vs. Narayan Namdeo Kadam, (2003) 2 SCC 91while discussing section 71 of the IEA, held as under:

11. Section 71 of the Evidence Act is in the nature of a safeguard to the mandatory provisions of Section 68 of the Evidence Act, to meet a situation where it is not possible to prove the execution of the will by calling the attesting witnesses, though alive. This section provides that if an attesting witness denies or does not recollect the execution of the will, its execution may be proved by other evidence. Aid of Section 71 can be taken only when the attesting witnesses, who have been called, deny or fail to recollect the execution of the document to prove it by other evidence. Section 71 has no application to a case where one attesting witness, who alone had been summoned, has failed to prove the execution of the will and other attesting witnesses though are available to prove the execution of the same, for reasons best known, have not been summoned before the court. It is clear from the language of Section 71 that if an attesting witness denies or does not recollect execution of the document, its execution may be proved by other evidence. However, in a case where an attesting witness examined fails to prove the due execution of will as required under clause (c) of Section 63 of the Succession Act, it cannot be said that the will is proved as per Section 68 of the Evidence Act. It cannot be said that if one attesting witness denies or does not recollect the execution of the document, the execution of will can be proved by other evidence dispensing with the evidence of other attesting witnesses though available to be examined to prove the execution of the will. Yet another reason as to why other available attesting witnesses should be called when the one attesting witness examined fails to prove due execution of the will is to avert the claim of drawing adverse inference under Section 114 Illustration (g) of the Evidence Act. Placing the best possible evidence, in the given circumstances, before the Court for consideration, is one of the cardinal principles of the Indian Evidence Act. Section 71 is permissive and an enabling section permitting a party to lead other evidence in certain circumstances. But Section 68 is not merely an enabling section. It lays down the necessary requirements, which the court has to observe before holding that a document is proved. Section 71 is 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, cannot be let down without any other means of proving due execution by “other evidence” as well. At the same time Section 71 cannot be read so as to absolve a party of his obligation under Section 68 read with Section 63 of the Act and liberally allow him, at his will or choice to make available or not a necessary witness otherwise available and amenable to the jurisdiction of the court concerned and confer a premium upon his omission or lapse, to enable him to give a go-by to the mandate of law relating to the proof of execution of a will.”

[Emphasis Supplied]

 

[Also see “Raj Kumari and Ors. vs. Surinder Pal Sharma” Decided on 17.12.2019 - SC :  2020(1)RCR(Civil)729]

 

In my opinion all the evidence which can be used under section 69 of the IEA, could also be used under section 71 of the IEA as “other evidence’ to prove execution of the Will.  Additionally, other evidence could include evidence of a Registrar, in case of a registered Will, to prove that he had satisfied himself of its voluntary and due execution by the Testator. Similarly, a scribe of the Will can be summoned to prove the fact that the Will was prepared by the said scribe upon instructions received by the Testator and that the Will contains the intention of the Testator. Admission of existence of the Will by all Legal Heirs of the Testator could also be good evidence (See S.58 IEA), a Doctor who may have certified about soundness of mind of the Testator could also be called for examination to prove intention of the Testator to execute a Will, evidence of a Handwriting expert could be used to prove handwriting and signatures, if the Will is 30 years old a presumption could be drawn under section 90 of the IEA, an Advocate, who had drafted the Will under directions and instructions of the Testator could be examined and likewise other form evidence could be adduced depending upon facts of each case. The evidence must be considered collectively by the court to reach a conclusion regarding validity of a Will. All such ‘other evidence’ must satisfy the judicial conscience and must dispel all suspicious circumstances. 

The Hon’ble Supreme Court in M.B. Ramesh (D) by L.Rs.  vs. K.M. Veeraje Urs (D) by L.Rs. and Ors. (2013) 7 SCC 490 while upholding the validity of a Will with the aid of section 71 of IEA observed “The issue of validity of the will in the present case will have to be considered in the context of these facts. It is true that in the case at hand, there is no specific statement by PW2 that he had seen the other attesting witness sign the will in the presence of the testator, but he has stated that the other witness had also signed the document. He has proved his signature, and on the top of it he has also stated in the Cross examination that the other witness (Mr. Mallaraje Urs), Smt. Nagammani, himself and one Sampat Iyanger and the writer of the will were all present while writing the will on 24.10.1943 which was registered on the very next day. This statement by implication and inference will have to be held as proving the required attestation by the other witness. This statement alongwith the attendant circumstances placed on record would certainly constitute proving of the will by other evidence as permitted by Section 71 of the Evidence Act.”

[Emphasis Supplied]

 

[Also see “Ajay Kumar vs. The State and Ors.” 242 (2017) DLT 135;  S.V. Balasubramanian vs. V. Lakshminarayanan (27.06.2016 - MADHC) : MANU/TN/1252/2016]

 

Conclusion

Under unforeseen and extreme situations, when the Attesting witnesses of a Will are either not available or deny/forget its execution, all hope is not lost and sections 69 and 71 of the IEA can be invoked to prove a Will. However, a ‘Will’ carries with it an overwhelming element of sanctity, since the Testator, at the time of testing the document for its validity, is not available and thus the statutory requirements of section 63(c) of the ISA and 68 of the IEA have to be first strictly complied with, to rule out the possibility of any manipulation. The rigour of Section 63 (c) of ISA and Section 68 of IEA is befitting the underlying exigency to secure against any self serving intervention contrary to the last wishes of the Executor of the Will.

 

Viewed therefrom, Sections 69 and 71 of the IEA have been accorded a strict interpretation. The contingencies permitting the play of these provisions have been extended a meaning to ensure that the limited liberty granted by Sections 69 and 71 of the IEA do not in any manner efface or emasculate the essence of Section 63 of the ISA and Section 68 of the IEA. It has been held that any unwarranted indulgence, permitting extra liberal flexibility to these two provisions, would render the predication of Section 63 of ISA and Section 68 of IEA, otiose. The Propounder can be extended the benefit of these provisions only when his/her witnesses are credible and the evidence adduced demonstrates clear intention of the Testator of executing that Will free from suspicious circumstances. In absence of any touch of truthfulness and genuineness in the overall approach, these provisions, which are not a substitute of Section 63 (c) of the ISA and Section 68 of the IEA, cannot be invoked to supplement such failed endeavor.

 

About the Author:

Rajat Wadhwa is a practicing lawyer in the High Court of Delhi for the last 16 years. He can be reached at his email: wadhwa_co@yahoo.co.uk


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