JUDGMENT :

The main questions came up for consideration are regarding the application of Section 71 of the Evidence Act in contrast with the mandate under Section 68 of the Evidence Act and what are the requirements to be satisfied so as to make the normal procedure under Section 71 of the Act in proof of a testament -Will or Codicil. It is a case wherein, the deceased testator had committed suicide within hours of execution of the alleged Will, Ext.A1, which was relied on by the plaintiff as against the natural legal heirs. The trial court decreed the suit, against which, the natural heirs, the defendants therein came up in appeal.

2. Both the attesting witnesses to the document, PW3 and PW4 turned hostile to the alleged attestation and execution of the Will, but admitted that they stood only as introducing witnesses to the document before the Sub-Registrar. Admittedly, both the attesting witnesses, PW3 and PW4 were acting under the instruction of PW7, the scribe as they were the employees under him. PW3 is a neighbour of the testator, but did not say anything about the required animus attestandi to stand as an attesting witness to the testament of the deceased. PW4 admittedly is a total stranger employed at the office of PW7, the scribe. They were not acting under the instruction of the testator, but on the instruction given by PW7, the scribe and signed on the document only as introducing witnesses.

3. When both the witnesses turned hostile by denying the due attestation, the propounder who is bound to prove the Will in accordance with the mandate under Section 68 of the Evidence Act, would stand reverted back to the normal rule of proof of a document in contrast with the requirement under Section 68 of the Act, for which, the legislature has incorporated Section 71, a succeeding provision so as to enable the propounder to prove the document in accordance with the normal rules. In short, Section 71 of the Evidence Act and the requirement thereunder may not have the nature of an exception carved out of Section 68 of the Act, but it is a dependent provision and would become operative only when it has become impossible to prove the testament in accordance with the mandate under the special provision -Section 68 of the Act. The corollary is that the mere summoning of one of the attesting witnesses in proof of the testament, who turned hostile to the due execution alone is not sufficient to make the succeeding provision – Section 71 of the Indian Evidence Act operative, for which, the propounder has to show that it has become impossible to prove the testament under the special provision – Section 68 of the Act. For that purpose, all the attesting witnesses, who are capable of giving evidence and subject to the process of court and alive at that time shall be summoned and examined in proof of due execution. Section 71 would operate only when all such witnesses, who are alive and capable of giving evidence and subject to the process of court were summoned and examined in proof of due execution and all of them turned hostile or the propounder could not procure their presence for valid reason including inability to give evidence or on account of their death by that time. A mere examination of one among them will not relieve the propounder from his liability under the special provision -Section 68 of the Act and cannot be permitted to take a safe haven under the umbrella of Section 71 of the Act by “other evidence”, in contrast with the requirement under the said special provision. The expression “other evidence” incorporated under Section 71 of the Act would cover all the requirements under Section 63 of the Indian Succession Act, including clause (c) for establishing the due attestation and execution including the necessary animus attestandi possessed by the attesting witnesses. But the proof to be furnished under Section 71 of the Evidence Act would stand more on preponderance of probabilities in contrast with the requirement as mand