How To Prove Execution Of Will When Both Attesting Witnesses Are Dead ? SC Explains [Read Judgment]

The Supreme Court, in a judgment delivered on Friday, has held that, in a situation where both the attesting witnesses to a will are dead, it is sufficient to prove that the attestation of at least one attesting witness is in his handwriting.

In this case, at the relevant time, both attesting witnesses to the will in question were not alive. The will was sought to be proved by producing the copy of deposition given by one of the attesting witnesses to the Will in a proceedings under Section 145 of the CrPC. However, the High Court held that this deposition of one of the attesting witnesses to the Will did not establish due execution of the Will, in that, it did not establish the attestation of the Will by the other alleged attesting witness.

So the issue in the appeal before the Apex court bench comprising of Justices Sanjay Kishan Kaul and KM Joseph was whether is it still the requirement of law when both the attesting witnesses are dead that: under Section 69 of the Evidence Act, the attestation as required under Section 63 of the Indian Succession Act, viz., attestation by the two witnesses has to be proved? or Is it sufficient to prove that the attestation of at least one attesting witness is in his handwriting, which is the literal command of Section 69 of the Evidence Act apart from proving the latter limb?

The law relating to the proof of execution of a Will has been succinctly dealt in the judgment authored by Justice Joseph. Section 63 of the Indian Succession Act deals with execution of unprivileged Wills, In order that a valid Will be made not only, it is necessary that the Testator must execute the document but also the execution must be attested by at least two witnesses. Section 68 of the Indian Evidence Act, deals with proof of execution of a document required by the law to be attested. As per this provision, in the case of a Will, if there is an attesting witness alive and subject to the process of the court and capable of giving evidence, then, the Will can be proved only if one of the attesting witnesses is called for proving its execution. Further it is also a settled law that, in such cases, at least one attesting witness must not only be examined to prove attestation by him but he must also prove the attestation by the other attesting witness [See 1995(6)SCC 213].

Answering this issue, the court noted that Section 69 of the Evidence Act manifests a departure from the requirement embodied in Section 68 of the Evidence Act. The relevant observations made in this regard, by the bench, is quoted below

"In the case of a Will, which is required to be executed in the mode provided in Section 63 of the Indian Succession Act, when there is an attesting witness available, the Will is to be proved by examining him. He must not only prove that the attestation was done by him but he must also prove the attestation by the other attesting witness. This is, no doubt, subject to the situation which is contemplated in Section 71 of the Evidence Act which allows other evidence to be adduced in proof of the Will among other documents where the attesting witness denies or does not recollect the execution of the Will or the other document. In other words, the fate of the transferee or a legatee under a document, which is required by law to be attested, is not placed at the mercy of the attesting witness and the law enables proof to be effected of the document despite denial of the execution of the document by the attesting witness." (Para 70)

The court further observed that in a case covered under Section 69 of the Evidence Act, 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.

Reverting back to Section 69 of the Evidence Act, 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 Section 69 of the Evidence Act, the requirement pertinent to Section 68 of the Evidence Act 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 Section 69 of the Evidence Act, 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 Section 69 of the Evidence Act. In short, in a case covered under Section 69 of the Evidence Act, 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. The language of the Section is clear and unambiguous. Section 68 of the Evidence Act, as interpreted by this Court, contemplates attestation of both attesting witnesses to be proved. But that is not the requirement in Section 69 of the Evidence Act. (Para 71)

Case no.: CIVIL APPEAL NOS.1021-1026 OF 2013

Case name: V. KALYANASWAMY(D) BY LRS. vs. L. BAKTHAVATSALAM(D) BY LRS.

Coram: Justices Sanjay Kishan Kaul and KM Joseph

Counsel: Senior Advocates C.A. Sundaram,  Mohana, V. Giri, Mohan Parasaran, S. Guru Krishnakumar,  Chitra Sampath,  V.Raghavachari, S. Nagamuthu, 

(Story to be updated with more aspects)

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