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Section 69 of the Indian Evidence Act, 1872 - Provides a special mode of proof for a will when attesting witnesses are unavailable. It states that if no attesting witnesses can be produced, the will can be proved by establishing that at least one attesting witness's signature or handwriting is in his own handwriting, or that the attestation of one witness is in his handwriting, and the signature of the person executing the will is also in his handwriting. ["In The Goods of: Sita Devi Bazaz (Dec) - Calcutta"] ["Girindra Kishore Pal Choudhury vs Ssuparna Pal Chowdhury - Calcutta"] ["In the Matter of: Pradip Kumar Pyne vs . - Calcutta"]
Application of Section 69 - It applies specifically when both attesting witnesses are unavailable despite diligent search, or when they are dead or cannot be traced. If at least one attesting witness is alive and available, proof must be obtained by examining that witness under Section 68. ["Jamila Gulfam Desai VS Jamir Abdulmujir Shiledar - Bombay"] ["Jamila Gulfam Desai VS Jamir Abdulmujir Shiledar - Bombay"] ["K.R. Leela Devi, W/o. P.A. Ramachandran and D/o. K.S. Raghavan vs K.R. Rajaram, S/o. K.S. Raghavan - Kerala"] ["Jamila Gulfam Desai vs Jamir Abdulmujir Shiledar & Anr. - Bombay"] ["Jayanti Gogoi VS Pranati Duara - Gauhati"] ["SMT. JAMILA GULFAM DESAI AND ORS. vs SHRI. JAMIR ABDULMUJIR SHILEDAR AND ANR. - Bombay"]
Role of Attesting Witnesses - Under Section 68, the execution of a will must be proved by examining at least one attesting witness if available. When witnesses are not available, Section 69 provides an alternative method, which involves proving handwriting or signatures, often through expert evidence or examining the witness's daughter, etc. ["TS No. 30 of 2015 (PLA No. 189 of 2014) vs Samir Kumar Chatterjee - Calcutta"] ["In The Goods of: Sita Devi Bazaz (Dec) - Calcutta"] ["In the Matter of: Pradip Kumar Pyne vs . - Calcutta"] ["In The Goodsof Akhiles Kumr Sinha, Deceased And Sant Agarwal VS Rabi Sinha - Calcutta"]
Legal Requirements and Court Practice - The courts emphasize that proof under Section 69 is only applicable when attesting witnesses cannot be found despite diligent efforts, or are dead. If witnesses are available, their testimony is necessary. Statements across the bar or hearsay do not suffice; direct evidence from witnesses is required. ["In The Goods of: Sita Devi Bazaz (Dec) - Calcutta"] ["Rikin Ranchhodlal Chokshi VS Shaila Abhay Shah - Bombay"] ["Jayanti Gogoi VS Pranati Duara - Gauhati"] ["Jamila Gulfam Desai vs Jamir Abdulmujir Shiledar & Anr. - Bombay"]
Judicial Interpretation - Supreme Court and High Courts have clarified that the proof of a will under Sections 68 and 69 depends on the availability of witnesses. If both witnesses are unavailable, proof by handwriting or signature (Section 69) is permissible. If witnesses are available and can be examined, Section 68 applies. ["In The Goods of: Sita Devi Bazaz (Dec) - Calcutta"] ["TS No. 30 of 2015 (PLA No. 189 of 2014) vs Samir Kumar Chatterjee - Calcutta"] ["Rikin Ranchhodlal Chokshi VS Shaila Abhay Shah - Bombay"] ["K.R. Leela Devi, W/o. P.A. Ramachandran and D/o. K.S. Raghavan vs K.R. Rajaram, S/o. K.S. Raghavan - Kerala"]
Analysis and Conclusion:A will can be proved by an attending witness present at the time of execution, which may include the executor if he was present and in a position to attest. Under Section 69, an executor or attending witness can serve as a witness for proof when the original attesting witnesses are unavailable, dead, or cannot be traced despite diligent efforts. The key condition for applying Section 69 is the unavailability of attesting witnesses, not merely the executor's status. Therefore, an executor can be an attending witness under Section 69 if he was present at the time of execution and the original attesting witnesses are unavailable or deceased, aligning with judicial interpretations ["In The Goods of: Sita Devi Bazaz (Dec) - Calcutta"].
In the realm of estate planning and probate in India, questions about the validity of wills often arise, especially regarding the roles of executors and attesting witnesses. A common query is: can executor to a will be an attending witness under section 69 evidence act? This issue is critical when proving a will in court, particularly under the Indian Evidence Act, 1872, and the Indian Succession Act, 1925. Understanding this can prevent costly disputes and ensure smooth probate proceedings.
This blog post delves into the legal nuances, drawing from statutory provisions and judicial precedents. Note that this is general information and not specific legal advice—consult a qualified lawyer for your situation.
Section 69 applies when attesting witnesses to a document, such as a will, are unavailable (e.g., deceased or untraceable). It states: If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, 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.V. Kalyanaswamy(D) By Lrs. VS L. Bakthavatsalam(D) By Lrs. - 2020 5 Supreme 641
This provision shifts the burden to prove the genuineness of at least one attesting witness's signature and the executant's signature through secondary evidence, like handwriting experts or other proof. It's often invoked alongside Section 68 (requiring one attesting witness to be called) and Section 63 of the Indian Succession Act (outlining will execution requirements).Brojendra Nath Roy Chowdhury VS Chittaranjan Ghosh - 2023 Supreme(Cal) 779
Generally, yes, an executor may be considered an attesting witness under Section 69, but only if they have actually attested the will by signing it in the presence of the testator and in compliance with legal requirements. The key distinction: the executor must sign in the capacity of a witness, not as the testator or merely as a signatory. If the executor signed the will as the testator (the maker), they cannot double as an attesting witness, as the roles are distinct. V. Kalyanaswamy(D) By Lrs. VS L. Bakthavatsalam(D) By Lrs. - 2020 5 Supreme 641Ashutosh Samanta (D) by LRs. VS S. M. Ranjan Bala Dasi - 2023 2 Supreme 649
Courts emphasize that mere appointment as executor does not qualify someone as a witness—evidence must show they signed as an attesting witness. V. Kalyanaswamy(D) By Lrs. VS L. Bakthavatsalam(D) By Lrs. - 2020 5 Supreme 641Ashutosh Samanta (D) by LRs. VS S. M. Ranjan Bala Dasi - 2023 2 Supreme 649
For a will to be valid under Section 63(c) of the Indian Succession Act:- The testator must sign or affix their mark in the presence of two or more attesting witnesses.- Each witness must sign in the testator's presence, acknowledging the execution.
Under Section 69 Evidence Act:- Prove at least one witness's attestation is in their handwriting.- Prove the testator's signature is genuine. V. Kalyanaswamy(D) By Lrs. VS L. Bakthavatsalam(D) By Lrs. - 2020 5 Supreme 641
If the executor is one such witness, their signature must meet these criteria. For instance, the witness (executor) must have signed after witnessing the testator sign or in the prescribed manner. Failure here invalidates their witness status. Moturu Nalini Kanth VS Gainedi Kaliprasad (Dead through LRs. ) - 2024 1 Supreme 250
Indian courts have clarified this through precedents:
Related cases highlight Section 69's application when witnesses are unavailable:
In a probate dispute, long delay in filing led to denial of Section 69 benefits: Propounder chooses to let a long time elapse before he filed second application for probate he is not entitled to any indulgence at hands of court - He has disabled himself to take benefit of Section 69 of Indian Evidence Act by his own conduct as by reason of long inexplicable delay Pulin Behari claimed to be one of attesting witnesses have died.Brojendra Nath Roy Chowdhury VS Chittaranjan Ghosh - 2023 Supreme(Cal) 779
Another case examined executor-proof of wills amid objections: Whether the purported will has been proved by the executor and Section 69 has any manner of application in the instant case? The court dismissed probate due to suspicious circumstances and unproven genuineness via expert reports under Sections 63, 68, and 69. Paramesh Chandra Sen (Deceased) VS Sanjukta Mukherjee - 2017 Supreme(Cal) 853
In Shyamal Kumar Sen v. Debjani Sen, a will surfaced 20 years post-death with dead witnesses. The court applied Section 69, proving signatures and granting probate to the executor-proposer after dispelling suspicions. It stressed: the propounder met Section 69 tests and proved Section 63's third limb (attestation). IN THE GOODS OF:SMT. KIRONBALA DEBI ALIAS BANERJEE DEC.-AND- vs INDRAJIT BANERJEE -VS- SAMIR KUMAR CHATTERJEE AND ORS. - 2025 Supreme(Online)(Cal) 4206In Goods of : Paramesh Chandra Sen (Deceased) VS Sanjukta Mukherjee - 2019 Supreme(Cal) 680
Similarly, courts upheld: A Will is duly executed if it is signed by the testator in the presence of two or more attesting witnesses, the testator declares to the attesting witnesses that the document is his Will, and the attesting witnesses signed the Will in the presence of the testator and each other. Even with an executor as witness, proof under Section 69 sufficed. In the goods Of: Paramesh Chandra Sen (Deceased) VS Sanjukta mukherjee - 2019 Supreme(Cal) 300
These rulings underscore that executors can witness, but proof is onerous, especially with delays or suspicions. Shyamal Kumar Sen VS Sanjukta Mukherjee - 2019 Supreme(Cal) 713
An executor may serve as an attesting witness under Section 69 if they properly attested by signing in the testator's presence as a witness—not as testator. Courts rigorously examine evidence, especially with unavailable witnesses or disputes. V. Kalyanaswamy(D) By Lrs. VS L. Bakthavatsalam(D) By Lrs. - 2020 5 Supreme 641Ashutosh Samanta (D) by LRs. VS S. M. Ranjan Bala Dasi - 2023 2 Supreme 649Moturu Nalini Kanth VS Gainedi Kaliprasad (Dead through LRs. ) - 2024 1 Supreme 250
Key Takeaways:- Prioritize clear attestation roles.- Use Section 69 judiciously with strong proof.- Act swiftly in probate to mitigate risks.
For tailored guidance, consult a probate specialist. Proper planning ensures your will stands firm.
References:- V. Kalyanaswamy(D) By Lrs. VS L. Bakthavatsalam(D) By Lrs. - 2020 5 Supreme 641, Ashutosh Samanta (D) by LRs. VS S. M. Ranjan Bala Dasi - 2023 2 Supreme 649, Moturu Nalini Kanth VS Gainedi Kaliprasad (Dead through LRs. ) - 2024 1 Supreme 250, Brojendra Nath Roy Chowdhury VS Chittaranjan Ghosh - 2023 Supreme(Cal) 779, Paramesh Chandra Sen (Deceased) VS Sanjukta Mukherjee - 2017 Supreme(Cal) 853, IN THE GOODS OF:SMT. KIRONBALA DEBI ALIAS BANERJEE DEC.-AND- vs INDRAJIT BANERJEE -VS- SAMIR KUMAR CHATTERJEE AND ORS. - 2025 Supreme(Online)(Cal) 4206, In Goods of : Paramesh Chandra Sen (Deceased) VS Sanjukta Mukherjee - 2019 Supreme(Cal) 680, In the goods Of: Paramesh Chandra Sen (Deceased) VS Sanjukta mukherjee - 2019 Supreme(Cal) 300, Shyamal Kumar Sen VS Sanjukta Mukherjee - 2019 Supreme(Cal) 713, Shirin Baman Faramarzi of Bombay Zoroastrian Iranian Inhabitant VS Zubin Boman Faramarzi of Bombay Ubduab Inhabitant - 2013 Supreme(Bom) 1893
#EvidenceActIndia, #WillProbate, #ExecutorWitness
Section 69 of the Indian Evidence Act, 1872 provides a gateway in that situation. Section 69 states: “69. Proof where no attesting witness found. ... by both the witnesses is to be proved in a case covered by Section 69 of the Evidence Act. ... In other words, in a case covered under Section 69 of the Evidence Act#HL....
Section 68 of the Evidence Act, 1872, in terms thereof the propounder of a Will must prove its execution by examining one or more attesting witnesses. ... Dutt submits that in order to take recourse of Section 69 of the Indian Evidence Act, 1872, on the prayer of the plaintiff original records of the Pension Cell of Calcutta University containing signature
In rejoinder Mr Patil submits that Section 69 of the Indian Evidence Act will not apply in the present case as it is only where the attesting witness cannot be traced despite diligent search that Section 69 the Indian Evidence Act can be applied. ... In view of the deposition of the Applicant, it is evident that Section 69 of Evidence Act applies as one attestin....
Patil submits that Section 69 of the Indian Evidence Act will not apply in the present case as it is only where the attesting witness cannot be traced despite diligent search that Section 69 the Indian Evidence Act can be applied. ... In view of the deposition of the Applicant, it is evident that Section 69 of Evidence Act applies as one attesting witn....
69 of Indian Evidence Act by his own conduct as by reason of long inexplicable delay Pulin Behari claimed to be one of attesting ... second application for probate he is not entitled to any indulgence at hands of court - He has disabled himself to take benefit of Section ... It is true that the scribe-cum-attesting witness was examined in the earlier proceeding and he was able to prove the Will in accordance with Section 63 of the Indian Succession Act read with Section 68 of the India....
1925, and Section 68 of the Evidence Act, 1872.” ... The proof of execution of the Will is governed by other sections of the Act, namely Section 67 and Section 68 of the Bharatiya Sakshya Adhiniyam, 2023 corresponding the Section 68 and Section 69 of the Indian Evidence Act, 1872. ... When both the attesting witnesses have expired then to prove a Will Section 69....
It is also necessary under Section 68 of the Indian Evidence Act, 1872 that one of the attesting witnesses must prove the will before the Court. If the attesting witnesses are not found, then Section 69 provides for how will is to be proved. ... and satisfactory evidence.” ... Section 63 of the Indian Succession Act, 1925 provides for execution of unprivileged Will. Section 63 (a) provides that the testator shall sign or shall affix....
Section 69 provides with mode of proof of a document where no attesting witness is found. “69. Proof where no attesting witness found. ... However, in a case where an attesting witness examined fails to prove the due execution of will as required under clause (c) of Section 63 of the Succession Act, it cannot be said that the will is proved as per Section 68 of the Evidence Act.” ... the essence a....
Probate - Hindu Law - Indian Succession Act, 1925 - Section 63, Section 68, Section 69 - Evidence Act - Section 45, Section 69 ... Whether the purported will has been proved by the executor and Section 69 has any manner of application in the instant case? 4. ... required under Section 69 of the Evidence Act. ... I will deal with the applicability of Section 69 of the Ev....
The Will is to be proved as per Section 63 of the Indian Succession Act, 1925 and Section 68 and Section 69 of the Indian Evidence Act, 1872 by examining one of the attesting witnesses of the Will and in case, the attesting witness is not available, attending witness is to be examined to prove that the ... Section 63 of the Succession Act, 1925 and Section 68 of....
Whether the purported will has been proved by the executor and Section 69 has any manner of application in the instant case? And (iv) Whether the affidavit executed in 1980 should have been marked as an Exhibit under Section 90 of the Evidence Act?"
Whether the purported will has been proved by the executor and Section 69 has any manner of application in the instant case? And (iv) Whether the affidavit executed in 1980 should have been marked as an Exhibit under Section 90 of the Evidence Act?”
And (iv) Whether the affidavit executed in 1980 should have been marked as an Exhibit under Section 90 of the Evidence Act?” Whether the purported will has been proved by the executor and Section 69 has any manner of application in the instant case?
The effect of a probate under Section 227 is that probate when granted establishes a will from the death of the testator and renders valid all intermediate acts of the executor as such. Under Section 222 a probate can be granted only to an executor appointed by the will. When probate has been granted to several executors and one of them dies, Section 226 stipulates that the entire representation of the testator accrues to the surviving executor or executors.
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