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DELHI HIGH COURT
Pradeep Nandrajog and Pratibha Rani, JJ.
Jagdish Prasad —Appellant
versus
State —Respondent
FAO(OS) No.355 of 2008
Decided on 3.3.2015
(ii) Evidence Act, 1872 - Section 69 – Indian Succession Act, 1925 Section 63 – Proof of Will – Where both attesting witnesses to the Will had expired – In that case what the propounder of the bill have to be proved his that firstly the signature on the Will of the executer were actually that of the executer and secondly the handwriting of thumb impression of the attesting witnesses was of such attesting witnesses (Para 9 to 13 & 19)
Facts of the case-
In this case the testatrix had executed a Will but after her death the appellant failed to obtain probate of Will. The reasoning of the learned Single Judge of the High Court was based on Section 63 of 1925 Act read with Section 68 of Evidence Act. The matter before the court was the proof of the Will and the procedural law regarding the same.
Findings of the Court:
It has been held by the Supreme Court in Janki Narayan 2003 (2) SCC 91 that it is true that Section 68 of the Evidence Act does not say that both or all the attesting witnesses must be examined. But at least one attesting witness has to be called for proved due execution of the Will as envisaged in Section 63. Although Section 63 of the Succession Act requires that a Will has to be attested at least by two witnesses, Section 68 of the Evidence Act provides that a document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been examined for the purpose of proving its due execution if such witness is alive and capable of giving evidence and subject to the process of the Court. In a way, Section 68 gives a concession to those who want to prove and establish a Will in a Court of law by examining at least one attesting witness even though the Will has to be attested at least by two witnesses mandatorily under Section 63 of the Succession Act. A plaint reading of Section 63 of 1925 Act makes it clear that it declares that substantive law regarding execution or unprivileged will and mandates that the testator has to sign or affix his mark or under his direction some other person as in his presence signed the Will. Section 69 while dealing with a situation where no attesting witness can be found requires evidence to the led that the signatures on such documents are that of the executant with further proof that there is attestation in his handwriting by one attesting witness. The law does not envisaged that if both attesting witnesses are dead or not available, that would be end of the Will. The Learned Single Judge has not evaluated the evidence of the witnesses keeping in view these provisions of the law, the decision of the Single Judge will not be sustainable. The case remanded for fresh decision.
Result: Appeal allowed.
Pradeep Nandrajog, J.—Having successfully proved ownership of the testatrix (Late Mata Shantanand) through Ex.PW-1/3 in respect of property No.204, Block-7, Jheel Khureji, Geeta Coloney, Delhi and the death of the testatrix on November 13, 1984, the appellant has failed to obtain a probate of the Will Ex.PW-1/2, statedly executed by Late Mata Shantanand. The reasoning of the learned Single Judge is premised on a co-joint reading of Section 63 of the Indian Succession Act, 1925 read with Section 68 of the Indian Evidence Act, 1872 and three decisions of the Supreme Court reported as Girija Datt Singh Vs. Gangotri Datt Singh, AIR 1955 SC 343, Janki Narayan Bhoir Vs. Narayan Namdeo Kadam, (2003) 2 SCC 91, and Banga Bihara Vs. Baraja Kishore Nanda, (2007) 9 SCC 728, for the reason it was the claim of the appellant before the learned Single Judge that the two attesting witnesses of the Will were dead.
2. Pithily put, the learned Single Judge has held that as per Section 63 of the Indian Succession Act, 1925, a Will needs to be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will and each of the witnesses has signed the Will with the requisite ‘animus attestandi’. On proof, reliance has been placed on Section 68 of the Indian Evidence Act, 1872, emphasizing that it enjoins, by way of proof, that a document required by law to be attested shall be proved by calling for the purpose of proving its execution, at least one attesting witness.
3. Three passages have been quoted from the three decisions. From the decision reported as Girija Datt Singh Vs. Gangotri Datt Singh (supra), the quoted passage with respect to in what manner the propounder has to discharge the burden to prove the Will is as under:-
“(a) it was signed by the testator in the presence of the two attesting witnesses;
(b) the witnesses should have seen the testator sign the Will, or have been told by him that he had signed it;
(c) The attesting witnesses, or one of them must depose to these facts, in the subsequent probate or other action concerning the Will. In the absence of attesting witnesses, of course, it is open to the propounder to prove the Will like any other document, provided that proof of the facts mentioned in Section 63 and 68 are led.”
4. From the decision reported as Janki Narayan Bhoir Vs. Narayan Namdeo Kadam (supra) the quoted passage with respect to in what manner the propounder has to discharge the burden to prove the Will is as under:-
“Section 68 of the Evidence Act speaks of as to how a document required by law to be attested can be proved. According to the said section, a document required by law to be attested shall not be used as evidence until on attesting witness at least has been called for the purpose of proving its execution, if there by an attesting witness alive, and subject to the process of the court and capable of giving evidence. It flows from this section that if there be an attesting witness alive capable of giving evidence and subject to the process of the court, has to be necessarily examined before the document required by law to be attested can be used in an evidence. On a combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act, it appears that a person propounding the Will has got to prove that the Will was duly and validly executed. That cannot be done by simply proving that the signature on the Will was that of the testator but must also prove that attestations were also made properly as required by clause (c) of Section 63 of the Succession Act. It is true that Section 68 of the Evidence Act does not say that both or all the attesting witnesses must be examined. But at least one attesting witness has to be called for proved due execution of the Will as envisaged in Section 63. Although Section 63 of the Succession Act requires that a Will has to be attested at least by two witnesses, Section 68 of the Evidence Act provides that a
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