C. G. Raveendran & Ors. vs. C. G. Gopi & Ors. AIR 2015 Kerala 250
The plaintiffs and defendants were the children of late Govindan and Bhanumathi. Govindan died on 28/8/1994 and Bhanumathi on 18/5/2004. The plaint schedule properties belonged to Govindan. He had constructed a building therein and was residing there with his family till his death.
According to the plaintiffs, after the death of Govindan, the right to the properties have devolved on the plaintiffs and the defendants equally and they were entitled to inherit. However, the plaintiffs came to know about a registered Will allegedly executed by Govindan.
It was contended that the Will was a fabricated one and Govindan had no occasion to execute such a Will. During the period of execution of the Will, Govindan was mentally ill and was undergoing treatment for partial paralysis. He had not executed the Will and was allegedly executed under suspicious circumstances. Hence the suit was filed seeking a declaration that the Will was null and void and for a consequential partition of the properties.
The Court below on an evaluation of the oral testimony on the side of the plaintiffs and the oral evidence on the side of the defendants held that Will was validly executed by Govindan.
The Hon’ble Court observed that the above evidence had to be evaluated to decide the genuineness of Will. It is pertinent to note that Will is registered. In the absence of any serious challenge regarding registration, it must be presumed that the Will was registered after complying with all the statutory formalities. Registration of a Will is a piece of evidence confirming its genuineness and can confer it a higher degree of sanctity. There seems to be a consensus in the judicial pronouncements that, though there is no requirement that Will should be registered, but if registered, it adds to its authenticity.
Section 68 of the Indian Evidence Act, 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. In the present case, the attesting witnesses are Parameswaran and Padmanabhan Nair. Parameswaran himself was the scribe. There is no legal bar in scribe himself being an attesting witness, provided he has actually seen the executant signing or affixing his mark or has received a personal acknowledgment from the executant and has consciously affixed his signature as an attesting witness, as a token of having witnessed the executant signing or affixing his mark. Evidence should prove that the scribe, apart from being so, had signed for the purpose of testifying to the signature of the executant and had the animo attestandi.
It is on record that both the attesting witnesses are no more alive. Hence, section 68 of the Indian Evidence Act cannot apply. The provision that governs the field can only be the section 69 of the Indian Evidence Act. It deals with a situation wherein no attesting witnesses can be found. Though the Statute prescribes that section 69 applies when the witness is not found, in the absence of any other provision dealing with cases wherein the presence of witnesses cannot be procured for various other reasons, like death of both attesting witness, out of jurisdiction, physical incapacity, insanity etc. Section 69 should apply and can be extended to such cases. Hence, the word “not found” occurring in section 69 of Evidence Act should receive a wider purposive interpretation than its literal meaning and should take in situation where the presence of the attesting witness cannot be procured. This view gets its support from Venkataramayya vs. Kamisetti Gattayya (AIR 1927 Madras 662) and Ponnuswami Goundan vs. Kalyanasundara Ayyar (AIR 1930 Madras 770).
It is settled that mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed by section 63 of Indian Succession Act. Section 69 imposes a twin fold duty on the propounder. It provides that if no such attesting witness can be found, it must be proved that attestation of one attesting witness at least is in his handwriting and also that the signature of the person executing the document is in the handwriting of that person. Hence, to rely on a Will propounded in a case covered by section 69 the propounder should prove i) that the attestation is in the handwriting of the attesting witness and ii) that the document was signed by the executant. Both the limbs will have to be cumulatively proved by the propounder. Evidently, the section demands proof of execution in addition to attestation and does not permit execution to be inferred from proof of attestation. However, section 69 presumes that once the handwriting of attesting witness is proved he has witnessed the execution of the document. The twin requirement of proving the signature and handwriting has to be in accordance with section 67 of the Indian Evidence Act.
