Will Can't Be Proved As Per Sec 69 Evidence Act By A Random Witness Saying He Saw Attesting Witness Signing It : Supreme Court

The Supreme Court on Monday (20.11.2023) held that in order to prove the genuineness of a will, it is not enough to examine a random witness who asserts that he saw the attesting witness affix his signature in the Will.

Section 69 of the Evidence Act deals with proving the authenticity of a document in cases where no attesting witnesses are found. Under the said provision, 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. Referring to the said provision, a bench of Justice CT Ravikumar and Justice Sanjay Kumar observed:

“For the purposes of Section 69 of the Evidence Act, it is not enough to merely examine a random witness who asserts that he saw the attesting witness affix his signature in the Will. The very purpose and objective of insisting upon examination of at least one attesting witness to the Will would be entirely lost if such requirement is whittled down to just having a stray witness depose that he saw the attesting witness sign the Will” 

The Court also refused to accept the argument that Section 69 of the Evidence Act does not require actual proof of the handwriting of at least one attesting witness and proof of the signature of the executant being in that person’s handwriting. Reference was also made to recent decision in Ashutosh Samanta v. Ranjan Bala Dasi & Ors 2023 LiveLaw (SC) 190 and other precedents.

The Apex Court made this observation while considering a case where a 70 year old woman had allegedly adopted a child less than a year old and had died two months later. The adoptee claimed that the woman had bequeathed all her properties to him through a registered will.

In this case, neither of the attesting witnesses were produced before the Court to prove the Will in terms of Section 68 of the Evidence Act. One attesting witness had expired and the other attesting witness was untraceable by the time the trial had started. Therefore, recourse was taken to Section 69, to establish the handwriting of one attesting witness and the signature of the executing person. Here, the Sub-Registrar adduced evidence as per Section 69, which the Court found to be unconvincing.

According to the facts of the case, Nalini Kanth (Appellant) claimed to have been adopted by Venkubayamma, a 70 year old woman, when he was less than 1 year old. According to the Appellant, he was adopted by her, by a registered Adoption Deed dated 20.04.1982. Later, under a registered Will Deed dated 03.05.1982 he claims that she bequeathed all her property to him. It was also claimed by Nalini that Venkubayamma had canceled her earlier Will Deed dated 26.05.1981 executed in favour of Kaliprasad, her grandson. The adoptee filed a suit for declaratory and consequential reliefs in respect of Venkubayamma’s properties. The suit was contested by Kaliprasad, the grandson of Venkubayamma. He challenged the Adoption Deed and the Will Deed, under which the adoptee son claimed rights.

The Principal Subordinate Judge, held in favour of the Appellant and decreed the suit but the High Court of Andhra Pradesh in appeal held against him. Subsequently, he approached the Apex Court.

The Supreme Court held that the Will was not proven in accordance with law and that it did not create any right in favour of the Appellant.

The Court underscored that mere registration of a Will did not attach a stamp of validity to it.

The Court noted that neither of the attesting witnesses to the Will Deed was examined before the Trial Court, in compliance with Section 68 of the Evidence Act. The Court also noted that Section 69 of the Evidence Act could have been made use of to prove the validity of the Will under the said circumstances. However, no witness was examined who was familiar with the signature of either of the attesting witnesses and who could vouch for the same or produce an admitted signature before the Trial Court, the Apex Court observed.

The Court also observed that the evidence of the scribe of the disputed Will also cast a doubt on the identity of the executant. This was because the scribe specifically stated that a woman was sitting at a distance but he could not tell whether she was Venkubayamma and he could not also tell whether Venkubayamma had signed the document.

“In effect, Ex. A10 Will was not proved in accordance with law and it can have no legal consequence. Nalini Kanth’s claim of absolute right and title over Venkubayamma’s properties on the strength thereof has, therefore, no legs to stand upon and is liable to be rejected” the Court concluded.

The Court additionally observed that the suspicious circumstances that surround the Will render it highly unbelievable.

Kaliprasad, the grandson of Venkubayamma being fully disinherited under odd and opposed to normal behaviour, the Court observed. The Apex Court was of the view that the disowning of her own grandson is a suspicious circumstance that remained unexplained.

The Will in question stated that the adopted child would perform her funeral rites. However, since the adopted child was of less than one year age at that time and Venkubayamma was in her 70s, the Court found this expectation on her part to be wholly unrealistic and unbelievable.

Additionally, the Court concluded that the Appellant had not proved his adoption in accordance with law either and was not entitled to claim any right or share in Venkubayamma’s properties.

“...we are of the opinion that the adoption of Nalini Kanth by Venkubayamma on 18.04.1982 is not proved in accordance with law despite the registration of Ex. A9 Adoption Deed dated 20.04.1982. The very adoption, itself, is not believable, given the multitude of suspicious circumstances surrounding it. Nalini Kanth cannot, therefore, be treated as her heir by adoption. Further, as Ex. A10 Will dated 03.05.1982 was also not proved in accordance with law, it does not create any right in his favour. In consequence, Nalini Kanth is not entitled to claim any right or share in Venkubayamma’s properties. The findings of the High Court to that effect, albeit for reasons altogether different, therefore, do not warrant interference. “ the Apex Court said, while dismissing the appeal. 

Also from the judgment -Mere Registration Of Adoption Deed Will Not Absolve A Person From Proving The Fact Of Adoption With Cogent Evidence: Supreme Court

Case Title: Moturu Nalini Kanth V. Gainedi Kaliprasad, CIVIL APPEAL No. 2435 of 2010

Citation: 2023 LiveLaw (SC) 998

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