Searching Case Laws & Precedent on Legal Query.....!
Analysing the retrieved Case Laws
Scanned Judgements…!
Searching Case Laws & Precedent on Legal Query.....!
Analysing the retrieved Case Laws
Scanned Judgements…!
Legal requirement to examine attesting witnesses - The law mandates that the propounder must examine at least one attesting witness to prove the execution of a will, provided that the witness is alive and capable of giving evidence. This is supported by Sections 63(c) of the Indian Succession Act and Section 68 of the Indian Evidence Act ["Saiby vs Mary, W/o. Eldhose - Kerala"] ["Saiby, W/o.Jacob vs Mary W/o. Eldhose - Kerala"] ["Saiby W/o Jacob vs Mary W/o Eldhose - Kerala"].
Support for examining remaining attesting witnesses despite initial non-support - The courts have emphasized that failure to support the propounder’s case by one attesting witness does not automatically invalidate the will or justify remanding the case for further examination of other witnesses. The primary focus is whether at least one attesting witness has been examined and whether the execution has been proved in accordance with law ["Saiby vs Mary, W/o. Eldhose - Kerala"] ["Saiby, W/o.Jacob vs Mary W/o. Eldhose - Kerala"] ["Saiby W/o Jacob vs Mary W/o Eldhose - Kerala"].
Remand not justified solely due to non-examination of other attesting witnesses - The appellate courts have been cautioned against remanding cases merely because not all attesting witnesses have been examined, especially when the law requires only one witness to be examined. The absence of additional witnesses does not necessarily render the will invalid if the law’s minimal requirements are met ["Saiby vs Mary, W/o. Eldhose - Kerala"] ["Saiby, W/o.Jacob vs Mary W/o. Eldhose - Kerala"].
Exceptions and situations when examining additional witnesses may be necessary - While the law generally requires only one attesting witness to be examined, credibility concerns or inconsistencies in testimony may necessitate examining other witnesses. However, failure to do so does not automatically invalidate the will unless the law explicitly requires their examination ["Rambha Bai VS Vijay Kumar Verma - Current Civil Cases"] ["N C MOHANDAS vs C ARAVINDAKSHAN - Kerala"] ["Ambika Prasad @ Ambika Prasad Pandey vs Shyam Bihari - Allahabad"].
Main points from case law and judgments - Courts have consistently held that the primary obligation is to examine at least one attesting witness; the absence of the second or additional witnesses' testimony does not automatically invalidate the will, provided the evidence of the examined witness is credible and legally sufficient ["Saiby vs Mary, W/o. Eldhose - Kerala"] ["Saiby, W/o.Jacob vs Mary W/o. Eldhose - Kerala"] ["Saiby W/o Jacob vs Mary W/o Eldhose - Kerala"] ["Rambha Bai VS Vijay Kumar Verma - Current Civil Cases"].
Analysis and Conclusion:Based on the provided sources, if the attesting witness who was examined did not support the propounder of the will, the appellate court cannot automatically remand the case solely for examining remaining attesting witnesses. The law requires only the examination of at least one attesting witness for the will's execution to be proved. Remanding is only warranted if the evidence is insufficient or if credibility issues arise that cannot be resolved without examining other witnesses. Therefore, the appellate court has the authority to proceed without remanding solely because some attesting witnesses did not support the case, as long as the law’s minimal requirements are satisfied ["Saiby vs Mary, W/o. Eldhose - Kerala"] ["Saiby, W/o.Jacob vs Mary W/o. Eldhose - Kerala"] ["Saiby W/o Jacob vs Mary W/o Eldhose - Kerala"].
References:- ["Saiby vs Mary, W/o. Eldhose - Kerala"]- ["Saiby, W/o.Jacob vs Mary W/o. Eldhose - Kerala"]- ["Saiby W/o Jacob vs Mary W/o Eldhose - Kerala"]- ["Rambha Bai VS Vijay Kumar Verma - Current Civil Cases"]- ["N C MOHANDAS vs C ARAVINDAKSHAN - Kerala"]- ["Ambika Prasad @ Ambika Prasad Pandey vs Shyam Bihari - Allahabad"]
Imagine a family dispute over a loved one's will. The —typically a beneficiary seeking to enforce the will—presents an in court. But what happens if that witness and doesn't support the case? Can the appellate court simply send the matter back to the trial court to examine the other remaining ? This is a common query in probate litigation under Indian law.
In this post, we dive into the legal framework governing will execution and proof, drawing from the , and the . We'll address the specific question: If the of a will did not support the of a will, can the appellate court remand the case for examining the other remaining ? Spoiler: Generally, no—unless exceptional circumstances demand it. Let's break it down step by step.
Under , a will must be attested by two or more witnesses. Each must have seen the sign or acknowledge the signature and then sign in the 's presence. This ensures authenticity.
Proof of execution falls under the :- : A will cannot be used as evidence until at least one (alive and capable) is examined to prove its execution. Examining all witnesses is not mandatory. - : If attesting witnesses are dead or unavailable, proof can rely on the signature or handwriting of one .
These provisions emphasize efficiency: one credible typically suffices. As noted in judicial interpretations, the law does not require the examination of all attesting witnesses; examining one is sufficient if that witness's evidence is credible and establishes the necessary facts.
What if the examined denies knowledge of the execution or ? Does this automatically trigger a remand for the other witness?
Generally, no. Courts assess the , including:- Testimony of the examined witness (even if partially supportive).- Other circumstantial evidence, like the scribe's testimony or registration details.- Signatures and handwriting analysis.
Failure of one witness does not invalidate the will outright. The bears the burden to prove , but remand is not a default remedy. The appellate court evaluates if existing evidence suffices or if linger.
From additional precedents, of the Evidence Act has no application in a case where one who alone had been summoned fails to prove execution of Will. Yet, courts may turn to the scribe's cogent evidence: Scribe, though not an , his evidence is very convincing and cogent to prove execution.
Appellate courts under the do not lightly remand cases. Their duty is to re-appreciate evidence, not fish for more unless:- Evidence is wholly inadequate or unreliable. - Remaining witnesses are available and essential to resolve doubts.
Key case law clarifies:- Janki Narayan Bhoir v. Narayan Namdeo Kadam: Examination of one suffices; non-examination of others doesn't warrant remand if the examined testimony and circumstances prove execution. - Benga Behera v. Braja Kishore Nanda: Even if witnesses are unavailable or unsupportive, courts proceed on other evidence—no automatic remand. - Ashutosh Samanta v. SM. Ranjan Bala Dasi: Reiterates no remand needed if single witness and circumstances are sufficient.
In one instance, a plea for remand to examine another witness (Nand Lal) was rejected, as the trial court hadn't erred in dismissing an application for it, avoiding failure of justice claims.
Further, the of a Will is not required to examine the attesting witnesses in all cases, per supporting judgments like Selvasubramaniam Vs. Subburathinam.
While not routine, remand may occur in limited scenarios:- : If the fails to dispel doubts (e.g., inconsistencies in testimonies), and remaining witnesses could clarify. The of a Will must dispel any surrounding its execution; failure to do so results in rejection of the Will. - Wholly inadequate evidence: If the sole examined witness is unreliable and others are available. - Procedural lapses: Like improper rejection of summoning another witness, though rare.
Registration doesn't prove execution alone—strict compliance is key, and other evidence (e.g., under or 70 of ) may supplement.
Courts apply the ',' considering totality: relationships, motives, and context. In a partition suit, a will was upheld despite close ties, as totality of circumstances... with evidence of attestor... proved it.
Non-examination of both witnesses draws no if one suffices. Contesting defendants were not required to examine both attesting witnesses... no can be drawn.
To strengthen your case:1. Examine at least one credible early.2. Gather supporting evidence: scribe affidavits, registration, handwriting experts.3. Address suspicions proactively—explain disinheritances or unusual bequests.4. If a witness , pivot to Sections 69/71 or other proof.
Appellate strategy: Argue sufficiency of record; remand is discretionary, not mandatory.
In summary, an appellate court generally cannot remand solely because one didn't support the . Focus remains on whether available evidence proves under Sections 68-69. Remand is exceptional, fact-specific, and not a right.
Key Takeaways:- One credible is enough—no need for all. - Hostile witness? Rely on circumstances, scribes, or handwriting.- Dispel suspicions to avoid rejection.- Consult a lawyer for case-specific advice; this is general information.
This framework upholds efficient justice while safeguarding will authenticity. For tailored guidance, reach out to a probate specialist.
References: Cited document IDs reflect judgments and statutes discussed. Always verify latest law.
#WillProbate #EvidenceActIndia #IndianSuccessionAct
That be so, the first appellate court went wrong in finding that since the attesting witness has not spoken about the presence of the 2nd attesting witness, the Will is not proved. ... In the memorandum of appeal, the respondent did not have a case that the Will was not proved because of the infirmity in the oral testimony of DW2, the attesting witness. ... Ther....
That be so, the first appellate court went wrong in finding that since the attesting witness has not spoken about the presence of the 2nd attesting witness, the Will is not proved. ... In the memorandum of appeal, the respondent did not have a case that the Will was not proved because of the infirmity in the oral testimony of DW2, the attesting witness. ... Ther....
That be so, the first appellate court went wrong in finding that since the attesting witness has not spoken about the presence of the 2nd attesting witness, the Will is not proved. ... Therefore, this Court is of the considered view that the order of remand by the first appellate court is completely erroneous and unsustainable under law. ... In the memorandum of appeal, the respo....
Indian Evidence Act, 1872 does not require anything to be done in furtherance of examining at least one attesting witness. ... Read as may, this Court could not decipher any requirement of law which casts further burden on the propounder, other than to examine the attesting witness. But, there may be situations which present itself before the court, especially when the credibility of the witness w....
In support of his submissions, he has also relied on a judgment of this Court in the case of Selvasubramaniam Vs. Subburathinam [CDJ 2015 MHC 3854] and submitted that the propounder of the Will is not required to examine the attesting witnesses. ... In support of his submissions, he has relied on a judgment of the Hon’ble Apex Court in the case of Janki Narayan Bhoir Vs. ... Adding further, he submitted that learned first ....
In the above noted case, this Court has stated that the following three aspects must be proved by a propounder: (Bharpur Singh case [Bharpur Singh v. ... Dilip Kumar (DW-1) is propounder of the Will and Kartik Ram Verma (DW-3) is attesting witness of the Will, but they have not stated that who is the second attesting witness of the Will (Ex.D-7). ... Attesting witness has also de....
In case the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence as per section 71. In this case Section 68 is applicable because one of the attesting witness had appeared to prove the Will. 19. ... Proof where no attesting witness found. ... Thus it has been submitted that taking an over all view, the trial court decreed the suit, which has bee....
Similarly, a scribe or an advocate who has drafted the document may not be the attesting witness as was held by this Court in Jagdish Chand Sharma v. ... attesting witness. ... In the case on hand, the propounder of the Will examined D.W.2, one of the attesting witnesses, who is alive to prove the execution of the Will. ... The Hon'ble Apex Court in Raj Kumari's case cited supra, held that a Regis....
A specific plea was raised that the Trial Court had erroneously dismissed their application for examining another attesting witness, Nand Lal, which resulted in a failure of justice, and the case ought to be remanded for his examination. ... In the first appeal, the appellants contended that the lower court had erred in holding that the Will Ext. PW-2/A was not proved, as the attesting witness Amar Chand and the scribe Ram Dass had ....
According to the learned senior counsel, only one attesting witness of the Will -Ext.B13 was examined and he, in fact, did not support the case of the propounder of the Will and accordingly he was declared as hostile. ... In the facts and circumstances of that case, as the second attesting witness though available had not been summoned, the benefit of Section 71 of Act 1872 was not extended. ... u....
(c) emplated therein, examination of the other witness can be dispensed with; that Section 63(c) nowhere says both attesting witnesses must be present at the same time or that they must sign simultaneously or that they must also speak the attestation by other witness; that when one attesting witness is unable to speak of the attestation by the other witness, the propounder can examine the other attesting witness to satisfy the mandatory requirement under the said section; that the argument that both attesting witness must also speak attestation by the other witness is liable to be ....
For this purpose, reference has been made to Section 71 of the Evidence Act. According to counsel, even if attesting witness of the Will did not support cause of the appellants, the Will can be proved on the basis of other evidence on record. It is further argued that mere fact that Satyanarain refused to give a correct version with regard to the Will in question, he cannot be permitted to ransack the registered Will executed by Sh. Nafe Singh.
The possession remains the same even if the other side does not specifically denied the execution of the Will or where the Will is a registered one. A Will can be proved by any one of the attesting witnesses. Ordinarily, a Will shall not be used in evidence until one of the attesting witness has been called as a witness by the propounder.
However, contesting defendants were not required to examine both attesting witnesses of the Will. Consequently, no adverse inference can be drawn against the contesting defendants for not examining the other attesting witnesses of the Will. On the contrary, the plaintiff-appellant herself also could examine the other attesting witness if the plaintiff thought that the other attesting witnesses would not support the execution of the Will.
As already stated, in this case, the Will has been duly proved by the examination of PW-2." Examination of the other attesting witness shall be required only if one attesting witness, examined to prove the Will, fails to prove the due execution of the Will. Equally, since the genuineness of the Will has been proved by the evidence of PW-2, it is not necessary to call the other attestor even if he is alive.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
