Will Can't Be Used As Evidence Without Examining Attesting Witness Even If Opposite Party Doesn't Deny Its Execution: Madras High Court

Madras High Court has held that a Will cannot be admitted in evidence unless it complies with the conditions laid down in Section 68 of the Evidence Act, even if the execution of the document is expressly admitted or not specifically denied by the opposite party.

Section 68 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, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.

The single-judge bench of Justice N. Anand Venkatesh observed that the mandate of at least one attesting witness being called upon by the court for the purpose of proving its execution cannot be diluted. The precursor to acting upon a Will as evidence has been specifically mentioned in Sections 68 to 70 of the Indian Evidence Act, the court added.

"A person who wants to rely upon a Will has to necessarily prove the Will only in accordance with Section 68 of the Act. In the absence of attesting witness, the Will has to be proved in accordance with Section 69 and 70 of the Evidence Act. Section 63 of the Indian Succession Act provides for the manner in which a Will should be executed by the testator and the requirement of attesting witnesses", the court remarked at the outset.

The court added that Section 68 only excepts examining an attesting witness for the proof of execution of any document that requires to be attested under law, not being a will, if its execution is not specifically denied by the person who appears to have executed the document. The High Court heavily relied on Ramesh Verma (Dead) v. Lajesh Saxena (dead) & Anr, 2017 1 SCC 257 to establish the mandatory nature of Section 68 which does not except Will from the documents that need not require the proof of attesting witness. The court concluded that the proviso to the said section provides for a relaxation of the requirement only for a document other than a Will.

The proviso reads, 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.

The court additionally relied on another apex court judgment in Jagadish Chand Sharma v. Narain Singh Saini (Dead), 2015 8 SCC 615 to cement the position of law that the relaxation in admitting documents in evidence, even in the absence of an attesting witness appearing before the court, does not apply to Wills.

Section 69 of the Evidence Act mentions that in a situation where such attesting witness can't 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 70 says that admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution.

In Ramesh Varma, it was reasoned by the apex court that the attesting witness is called upon under Section 68 to prove that the will was signed by the purported testator on his own free will, the said testator was of sound mind at the time of execution, and the testator was fully aware of the nature and effect of the disposition made. The apex court had underscored in the said judgment that Section 68 will undoubtedly apply in this manner even if the opposite party does not specifically deny the execution of the document in the written statement.

The court also pointed out the Kerala High Court judgment in Sarada v. Radhamani (2017) which held that the judgment in Thayyullathil Kunhikannan and others v. Thayyullathil Kalliani & Ors (1989) as per incuriam. In Thayyullathil Kunhikannan, a judgment before the authoritative pronouncement on the issue by the apex court, the Kerala High Court had held that where the party has not joined issue on the validity or genuineness of the Will and has admitted the Will, there is no requirement to prove the Will in accordance with Section 68 of the Evidence Act.

The High Court had reached the said decision in Thayyullathil Kunhikannan by relying on Order 8 Rule 5 of the C.P.C and Section 58 of the Evidence Act. Order 8 Rule 5 of the CPC provides that unless there is a specific denial of any allegation of fact made in the plaint, it shall be taken to be admitted.  Section 58 of the Evidence Act provides that no fact need be proved in any proceedings, which by any rule of pleadings in force at the time, the parties are deemed to have admitted by their pleadings. The court opined that these provisions have an overriding effect on Section 68 of the Evidence Act as far as Wills are concerned.

Justice N. Anand Venkatesh concluded that Thayyullathil Kunhikannan no longer represents the correct position of law and noted as below:

"The above narrative leads to the inescapable conclusion that both the Courts below erred in acting upon Ex.A6 Will without the same being proved as per the mandate prescribed under the Evidence Act and both the Courts below erroneously acted upon the Will merely based on the stand taken by the defendant... "

Background

A person named Chinnadurai Mudaliar, who was the original owner of the suit property, had supposedly executed a will and given the life interest to his nephews, namely, Murugesa Mudaliar and Purusothaman. The vested reminder was given in favour of the male heirs of these nephews. Be that as it may, Murugesa Mudaliar died and his wife(defendant) came to be in possession of the entire suit property. This is because Purushothaman was living with his son (plaintiff) elsewhere in Chennai for over 30 years and they were never in possession of their alleged share in the property. According to the plaintiff, Purushottaman had asked Murugesa Mudaliar to give the former's share in cultivating crops in the entire property and the wife of the deceased Mudaliar has refused to give any share to the father of the plaintiff son.

Therefore, according to the plaintiff son, he sought half share in the suit property upon attaining majority. This request was refused by the wife of Murugesa Mudaliar.A suit was filed seeking for the relief of partition and allotment of half share in the suit property which was granted by both the subordinate courts. Therefore, the defendant wife preferred an Original Second Appeal before the High Court, challenging the said orders.

The appellant/ defendant submitted before the High Court that Mudaliar and Purusothanam had orally sold their entire share to her in 1989. She also argued that the tax receipts were issued in her name.

Final Observations

The court had framed two questions after ascertaining the facts of the case. One of them was a substantial question of law and the other was an 'additional substantial question of law'.

The substantial question of law is as follows:

(i) Whether a suit for partition is maintainable even though the father is alive and the appellant is entitled for a share only per stripes?

The additional substantial question is given below which the court has discussed elaborately in the judgment as mentioned above:

(a) Whether both the Courts below were right in relying upon Ex.A-6 [Will] only based on the admission made by the defendant without the same being proved in accordance with Section 68 of the Indian Evidence Act?

After answering the additional substantial question of law, the court clarified that the substantial question of law need be examined only if the court can act upon the Will relied upon by the plaintiff as admissible evidence.

"This Court is of the considered view that there is no requirement to answer the substantial question of law that was framed at the time of admission of the second appeal, since the answer to that question will be the direct fall out of the answer that has been given to the Additional substantial question of law. In other words, the requirement to answer this substantial question of law will arise only if the Court is going to act upon Ex.A6 Will."

The court further explained that the plaintiff has not pleaded on any other ground to derive the source of his right to the half share of property other than the Will. In the absence of alternative pleadings to that effect, the court can't answer the substantial question of law in the plaintiff/ respondent's favour. Therefore, Justice N. Anand Venkatesh allowed the second appeal and set aside the judgment and decree passed by the subordinate courts.

"It therefore goes without saying that the main issue that was taken into consideration and decided, only revolved around the proof of Ex.A6 Will and hence, it will be left open to the plaintiff to initiate fresh proceedings and agitate his rights in the manner known to law", the court clarified the current judgment will not affect the plaintiff's right to initiate fresh proceedings seeking the same relief.

Case Title: Malliga v. P. Kumaran

Case No: SA No.241 of 2015

Citation: 2022 LiveLaw (Mad) 118

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