Will Can't Be Used As Evidence Without Examining Attesting Witness Even If Opposite Party Doesn't Deny Its Execution: Madras High Court

Madras High Court has held that a Will cannot be admitted in evidence unless it complies with the conditions laid down in Section 68 of the Evidence Act, even if the execution of the document is expressly admitted or not specifically denied by the opposite party.Section 68 provides that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.The single-judge bench of Justice N. Anand Venkatesh observed that the mandate of at least one attesting witness being called upon by the court for the purpose of proving its execution cannot be diluted. The precursor to acting upon a Will as evidence has been specifically mentioned in Sections 68 to 70 of the Indian Evidence Act, the court added."A person who wants to rely upon a Will has to necessarily prove the Will only in accordance with Section 68 of the Act. In the absence of attesting witness, the Will has to be proved in accordance with Section 69 and 70 of the Evidence Act. Section 63 of the Indian Succession Act provides for the manner in which a Will should be executed by the testator and the requirement of attesting witnesses", the court remarked at the outset.The court added that Section 68 only excepts examining an attesting witness for the proof of execution of any document that requires to be attested under law, not being a will, if its execution is not specifically denied by the person who appears to have executed the document. The High Court heavily relied on Ramesh Verma (Dead) v. Lajesh Saxena (dead) & Anr, 2017 1 SCC 257 to establish the mandatory nature of Section 68 which does not except Will from the documents that need not require the proof of attesting witness. The court concluded that the proviso to the said section provides for a relaxation of the requirement only for a document other than a Will.The proviso reads, it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied.The court additionally relied on another apex court judgment in Jagadish Chand Sharma v. Narain Singh Saini (Dead), 2015 8 SCC 615 to cement the position of law that the relaxation in admitting documents in evidence, even in the absence of an attesting witness appearing before the court, does not apply to Wills.Section 69 of the Evidence Act mentions that in a situation where such attesting witness can't be found, 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. Section 70 says that admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution.In Ramesh Varma, it was reasoned by the apex court that the attesting witness is called upon under Section 68 to prove that the will was signed by the purported testator on his own free will, the said testator was of sound mind at the time of execution, and the testator was fully aware of the nature and effect of the disposition made. The apex court had underscored in the said judgment that Section 68 will undoubtedly apply in this manner even if the opposite party does not specifically deny the execution of the document in the written statement.The court also pointed out the Kerala High Court judgment in Sarada v. Radhamani (2017) which held that the judgment in Thayyullathil Kunhikannan and others v. Thayyullathil Kalliani & Ors (1989) as per incuriam. In Thayyullathil Kunhikannan, a judgment before the authoritative pronouncement on the issue by the apex court, the Kerala High Court had held that where the party has not joined issue on the validity or genuineness of the Will and has admitted the Will, there is no requirement to prove the Will in accordance with Section 68 of the Evidence Act. The High Court had reached the said decision in Thayyullathil Kunhikannan by relying on Order 8 Rule 5 of the C.P.C and Section 58 of the Evidence Act. Order 8 Rule 5 of the CPC provides that unless there is a specific denial of any allegation of fact made in the plaint, it shall be taken to be admitted. Section 58 of the Evidence Act provides that no fact need be proved in any proceedings, which by any rule of pleadings in force at the time, the parties are deemed to have admitted by their pleadings. The court opined that these provisions have an overriding effect on Section 68 of the Evidence Act as far as Wills are concerned.Justice N. Anand Venkatesh concluded that Thayyullathil Kunhikannan no longer represents the correct position of law and noted as...

Will Can't Be Used As Evidence Without Examining Attesting Witness Even If Opposite Party Doesn't Deny Its Execution: Madras High Court

Sebin James

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