Proving a Will | The plaintiff filed a suit for partition of a property basing his right under a registered will and produced a certified copy of the Will (Ex. A/1) will the plaint. Dispose of the argument of the defendant by an order.

Question: Proving a Will | The plaintiff filed a suit for partition of a property basing his right under a registered will and produced a certified copy of the Will (Ex. A/1) will the plaint. The defendant in the written statement pleaded that the said will was revoked by the testator during his lifetime.

During the argument, the defendant contended that the will is not properly proved and even if there is no dispute in the written statement about the validity and genuineness of the Will formal proof of the Will be examining one of the testators is necessary before the will is read in evidence and one of the testators is admittedly alive.

(Section 68 of the Indian Evidence Act provided that if a document is required to be attested, (like a will), it shall not be used as evidence until one of the attesting witnesses at least has been called as a witness for proving its execution if there be one testator alive.) Dispose of the argument of the defendant by an order. [D.J.S. 1991]

Find the answer to the mains question only on Legal Bites. Proving a Will | The plaintiff filed a suit for partition of a property basing his right under a registered will and produced a certified copy of the Will (Ex. A/1) will the plaint. Dispose of the argument of the defendant by an order.

Answer

Section 68 of the Indian Evidence Act provides that if a document is required to be attested, (like a will), it shall not be used as evidence until one of the attesting witnesses at least has been called as a witness for proving its execution if there be one testator alive.

Section 68 lays down that when a document required by law to be attested, is produced in any judicial proceeding, it shall not be used in evidence i.e., it shall not be proved and made part of the record unless one of the attesting witnesses at least is called for the purpose of proving its execution.

Suppose, A files a suit for the possession of some property alleging that B was the owner of it and that he before his death executed a will in his (A’s) favour, and that C has taken adverse possession of the property; C denies the execution of the will. A produces a will purporting to be executed by B.

In order that the will may be proved and be read in evidence an attesting witness of the will must be examined before the court and he must depose that the will was signed by B in his presence and in presence of another witness and that he and the other witness signed the deed in presence of B and that the deed produced is the same as executed by B. The object of attestation is that some person should verify that the deed was signed voluntarily.

In Janki Narain Bhoir v.Narain Namdeo Kadam, [AIR 2003 SC 761] the Supreme Court held that on a combined reading of Section 63 of Succession Act and Section 68 of Evidence Act, it appears that the person propounding the will has to prove that 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 have to be proved that attestation was also properly made as required by 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 proving execution of will as envisaged by Section 63 of the Succession Act. But what is significant and to be noted is that one attesting witness examined should be in a position to prove execution of the will in terms of clause (c) of Section 63 of the Succession Act. The one attesting witness examined in his evidence has to testify the attestation of will by him.

As the Will is a document required by law to be attested, it shall not be used as evidence until at least one attesting witness is examined. That is only when either plaintiff seeks a relief propounding a Will or when the defendant raises a specific plea setting up the Will as a defence to the claim made by the plaintiff.

Therefore, in the present case at hand, when one of the testators is admittedly alive, he shall be called in the court to prove the attestation of the document in order to declare the document of ‘will’ valid.

---

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