Attesting witness with a fading memory cannot prove a Will #indianlaws

In the instant petition, subject matter of challenge was the correctness and validity of Will to be determined in view of the provisions of Section 67 of the Indian Succession Act (Act) and Sections 68 and 71 of the Indian Evidence Act (Act, 1872).

Appellant in the instant petition had filed an application under Section 276 of the Act seeking grant of Letter of Administration in respect of a Will executed by the testator as the sole and absolute owner amongst others of the relevant property. As per the Will, the said property was stated to have had bequeathed in favour of the Appellant out of love and affection for him for the services rendered by him and was not favourably disposed towards his sons for their disagreeable conduct and activities. The Appellant also had mentioned the names and particulars of the sons and daughters of the deceased testator who after the service of notice filed their objections emphasizing on the facts and circumstances prevailing at the relevant point of time not at all warranting/justifying execution of any Will in favour of the Appellant. The execution of Will and also the signatures and the thumb impressions of the testator were categorically denied.

Trial Court, on its assessment of the evidence adduced concluded that the Appellant successfully proved the Will having executed by the testator in a sound disposing state of mind and that it was duly registered. In respect of the objections, the Trial Court held that the same was inadequate to displace the validity of the Will. High Court in appeal reversed the finding on the touchstone of the relevant provisions of the Act and Act 1872 holding that the Will was not proved as per law and that no Probate or Letter of Administration could be granted. Referring to the testimony of the attesting witnesses, the High Court held that they could not prove the execution of the Will as well as the attestation thereof within the meaning of Section 63(c) of the Act, a mandatory legal edict. The High Court also dismissed the plea based on Section 71 of the Act, 1872 noting that the evidence of the attesting witnesses produced by the Appellant, did not only demonstrate lack of intention to attest the Will, but also, rendered the execution of the document and their signatures thereon doubtful.

It was observed that as per Section 63 of the Act to execute the Will as contemplated therein, the testator would have to sign or affix his mark to it or the same has to be signed by some other person in his presence and on his direction. Further the signature or mark of the testator or the signature of the person signing for him has to be so placed that it would appear that it was intended thereby to give effect to the writing as Will. The Will have to be attested by two or more witnesses each of whom has seen the testator sign or affix his mark to it or has seen some other persons sign it, in the presence and on the direction of the testator, or has received from the testator, personal acknowledgement of a signature or mark, or the signature of such other persons and that each of the witnesses has signed the Will in the presence of the testator. It was however, clarified that it would not be necessary that more than one witness be present at the same time and that no particular form of attestation would be necessary.

In the evidentiary context Section 68 of the Act 1872 enjoins that if a document is required by law to be attested, it would not be used as evidence unless one attesting witness, at least, if alive, and is subject to the process of Court and capable of giving evidence proves its execution. The proviso attached to this Section relaxes this requirement in case of a document, not being a Will, but 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.

Section 71 provides that if the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence. The interplay of the above statutory provisions and the underlying legislative objective would be of formidable relevance in evaluating the materials on record and recording the penultimate conclusions.

It was held that a Will as an instrument of testamentary disposition of property being a legally acknowledged mode of bequeathing a testator’s acquisitions during his lifetime, to be acted upon only on his/her demise, carries with it an overwhelming element of sanctity. The testator/testatrix, as the case may be, at the time of testing the document for its validity, would not be available, stringent requisites for the proof thereof have been statutorily enjoined to rule out the possibility of any manipulation. The rigour of Section 63 (c) of the Act and Section 68 of 1872 Act is befits the underlying exigency to secure against any self serving intervention contrary to the last wishes of the executor.

Section 71 of the 1872 Act has to be necessarily accorded a strict interpretation. The two contingencies permitting the play of this provision, namely, denial or failure to recollect the execution by the attesting witness produced, a fortiori has to be extended a meaning to ensure that the limited liberty granted by Section 71 of 1872 Act does not in any manner efface or emasculate the essence and efficacy of Section 63 of the Act and Section 68 of 1872 Act.
The distinction between failure on the part of a attesting witness to prove the execution and attestation of a Will and his or her denial of the said event or failure to recollect the same, has to be essentially maintained. Any unwarranted indulgence, permitting extra liberal flexibility to these two stipulations, would render the predication of Section 63 of the Act and Section 68 of the 1872 Act, otiose.

The propounder can be initiated to the benefit of Section 71 of the 1872 Act only if the attesting witness/witnesses, who is/are alive and is/ are produced and in clear terms either denies /deny the execution of the document or cannot recollect the said incident. Not only, this witness/witnesses has/have to be credible and impartial, the evidence adduced ought to demonstrate unhesitant denial of the execution of the document or authenticate real forgetfulness of such fact. If the testimony evinces a casual account of the execution and attestation of the document disregardful of truth, and thereby fails to prove these two essentials as per law, the propounder cannot be permitted to adduce other evidence under cover of Section 71 of the 1872 Act. Such a sanction would not only be incompatible with the scheme of Section 63 of the Act read with Section 68 of the 1872 Act but also would be extinctive of the paramountcy and sacrosanctity thereof, a consequence, not legislatively intended. If the evidence of the witnesses produced by the propounder is inherently worthless and lacking in credibility, Section 71 of Act 1872 cannot be invoked to bail him (propounder) out of the situation to facilitate a roving pursuit. In absence of any touch of truthfulness and genuineness in the overall approach, this provision, which is not a substitute of Section 63 (c ) of the Act and Section 68 of the 1872 Act, cannot be invoked to supplement such failed speculative endeavour
Section 71 of the 1872 Act, even if assumed to be akin to a proviso to the mandate contained in Section 63 of the Act and Section 68 of the 1872 Act, it has to be assuredly construed harmoniously therewith and not divorced therefrom with a mutilative bearing.

[Jagdish Chand Sharma vs. Narain Singh Saini (Dead)]

(SC, 01.05.2015 – Civil Appeal Nos.4181-4182 of 2015)