Father allegedly executed Will one day before his death bequeathing all his properties to the sons of daughter A. Daughter B assailed its validity. Evidence showed… Decide suit.

Question: Father allegedly executed Will one day before his death bequeathing all his properties to the sons of daughter A. Daughter B assailed its validity.

Evidence showed that the testator was ill for some time and lived with A six months prior to his death in August 1985; B was financially well settled and happily married; testator could sign; Will had his thumb mark; attesting witness and scribe deposed about due execution of the Will; propounder fetched professional scribe to his house where Will was executed; scribe saw the testator covered with a quilt with whom he did not talk; the properties were mentioned in the Will generally and not specifically. Decide suit.

Find the answer to the mains question only on Legal Bites. [Father allegedly executed Will one day before his death bequeathing all his properties to the sons of daughter A. Daughter B assailed its validity. Evidence showed… Decide suit.]

Answer

Section 67 of the Indian Evidence Act merely requires proof of signature and handwriting of the person alleged to have signed or written the document produced. Mere admission of execution of a document is not sufficient but proof that the signature of the executant is in his handwriting is necessary.

To the present case at hand, section 68 of the act applies to cases where an instrument required by law to be attested bears the necessary attestation. What the section prohibits is a proof of execution of a document otherwise than by the evidence of an attesting witness if available.

This section applies only where the execution of a document has to be proved or when the allegation is that the executant was not in a fit state of mind to know the real nature of the document. The principle underlying section 68 is that execution of the will must be proved by at least one attesting witness, that it is only an attesting witness who is entitled to prove the execution of the will.

In the case of a document executed by the thumb impression of an illiterate person, the party putting forth the document has to prove that the document was read over and explained to the

Executants. In Ram Singh v. Col. Ram Singh, AIR 1986 SC 3, a document the contents of which were not proved nor the maker of the document was examined was held to be irrelevant.

In the case of a will, the burden lies upon its propounder to prove its genuineness, the deceased testator being no longer available to speak to its genuineness. However, deposition by an attesting witness or a scribe, the due execution of the will can be proved under section 68 of the act.

Where in the case of P Arakhita Senapati v. P Sabitri Senapati, 2016 AIR CC 359 (Ori), the scribe of the will had deposed on oath that he had scribed the Will and had read it over and explained to the testatrix under whose instructions it was so written and his evidence showed that the testatrix was clearly in a sound state of health and mind at that point of time, it was held that the due execution of the will was proved.

In Ved Prakash v. Buta Singh, 2016 AIR CC 1861, para 10 (P&H), where the attesting witness identified the thumb impression of the testatrix and also the scribe of the will and the other attesting witness and withstood the test of cross-examination; besides the will was not kept a secret from the beneficiaries. It was held that execution of the will was duly proved despite a minor discrepancy of variance in the date of dictation of will.

Thus, in the present case at hand, it is to be held that the will made by the father, has been duly executed.

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Important Mains Questions Series for Judiciary, APO & University Exams

1. Law of Evidence Mains Questions Series Part-I
2. Law of Evidence Mains Questions Series Part-II
3. Law of Evidence Mains Questions Series Part-III
4. Law of Evidence Mains Questions Series Part-IV
5. Law of Evidence Mains Questions Series Part-V
6. Law of Evidence Mains Questions Series Part-VI
7. Law of Evidence Mains Questions Series Part-VII
8. Law of Evidence Mains Questions Series Part-VIII
9. Law of Evidence Mains Questions Series Part-IX
10. Law of Evidence Mains Questions Series Part-X