By Dr. Anup P. Shah
Chartered Accountant
INTRODUCTION
One of the most crucial ingredients for a valid Will is the fact of it
being witnessed by two attesting witnesses. Many a Will has been found wanting
for the fact of improper attestation. However, what would be the state of a
Will where both the attesting witnesses are also dead and when it is being
proved in Court (say in a probate petition)? Would the Will suffer for want of
attestation or could it yet be considered valid? The Supreme Court was faced
with this interesting issue in the case of V. Kalyanaswamy (D) by LRs vs.
L. Bakthavatsalam (D) by LRs, Civil Appeal Nos. 1021-1026/2013, order dated 17th
July, 2020. Let us analyse this case and other related judgments on
this issue.
FACTS AND THE ISSUE
In the Kalyanaswamy case (Supra) in the Supreme Court, both
the attesting witnesses to the Will were not alive. One of them was an
Income-tax practitioner and the other a doctor. The questions framed by the
Supreme Court for its consideration were as follows:
(a) When both the attesting witnesses are dead, is it required that the
attestation has to be proved by the two witnesses? Or
(b) Is it sufficient to prove that the attestation of at least one of the
attesting witnesses is in his handwriting and proving the testator’s signature?
Before we analyse the Court’s findings it would be worthwhile to understand
the requirements of witnessing a Will and the manner of proving the same.
WITNESSING A WILL
The mode of making a Will in India is provided in section 63 of the Indian
Succession Act, 1925. This Act applies to Wills by all persons other than
Muslims. For a Will to be valid under this Act, its execution by a testator
must be attested by at least two witnesses. The manner of witnessing a Will is
as is provided in section 63 of the Indian Succession Act which requires that
it is attested by two or more witnesses, each of whom has:
(a) seen the testator sign the Will; or
(b) received from the testator a
personal acknowledgement of his signature.
It is trite that the witnesses need not know the contents of the Will. All
that they need to see is the testator and each other signing the Will ~ nothing
more and nothing less!
MANNER OF EVIDENCE
Section 68 of the Indian Evidence Act, 1872 (‘the
Evidence Act’) explains how a document that is required to be attested must be
proved to be executed. In the case of a Will, if the attesting witness is alive
and capable of giving evidence, then the Will can be proved only if one of the
attesting witnesses is called for proving its execution. Thus, in the case of a
Will, the witness must be examined in Court and he must confirm that he indeed
attested the execution of that Will.
WHAT IF WITNESSES CANNOT BE FOUND?
However, section 69 of the Act provides that if no such attesting witness
can be found, it must be proved that the attestation by at least one of the
witnesses is in his own handwriting and that the signature of the person
executing the document is in the handwriting of that person. Thus, evidence
needs to be produced which can confirm the signature of at least one of the
attesting witnesses to the Will as well as that of the testator of the Will.
The Madras High Court in N. Durga Bai vs. Mrs. C.S. Pandari Bai,
Testamentary Original Suit No. 22 of 2010, order dated 27th
February, 2017, has explained that u/s 69 of the Evidence Act, two
conditions are required to be proved for valid proof of the Will, i.e., the
person who has acquaintance with the signature of one of the attesting
witnesses and also the person executing the document should identify both such
signatures before the court. In that case, a person had identified the
signature of the testator. However, his evidence clearly showed that he was not
acquainted with the signature of both the attesting witnesses. Therefore, the
High Court held there was no compliance of section 69.
The Supreme Court in Kalyanaswamy (Supra)
explained that the attesting witness not being found refers to a variety of
situations ~ it would cover a case of an incapacity on account of any physical
illness; a case where the attesting witnesses are dead; the attesting witness
could be mentally incapable / insane. Thus, the word ‘found’ is capable of
comprehending a situation as one where the attesting witness, though physically
available, is incapable of performing the task of proving the attestation and,
therefore, it becomes a situation where he is not found.
In Master Chankaya vs. State and others, Testamentary Case No.
40/1999, order dated 12th September, 2019 the Delhi High
Court explained that it was not the case of the petitioner that the attesting
witnesses could not be found. In fact, the petitioner had throughout contended
that he was aware of their whereabouts and assured the Court that he would
produce them before the Court. Later, he dropped the said witnesses on the
ground that their whereabouts were not known and he was therefore unable to
produce them. The Court held that the petitioner did not exhaust all the
remedies for producing the witnesses before it. The petitioner could have
resorted to issuance of a summons to the witnesses under Order 16 Rule 10 of
the Civil Procedure Code, 1908 for the purpose of seeking their appearance. No
such assistance was taken from the Court and hence section 69 could not
automatically be invoked. Thus, all possible remedies must be exhausted before
resorting to this section.
The Calcutta High Court in Amal Sankar Sen vs. The Dacca Co-operative
Housing Society Ltd. (in liquidation), AIR 1945 Cal 350, observed:
‘…In order that Section 69, Evidence Act, may be applied, mere taking out
of the summons or the service of summons upon an attesting witness or the mere
taking out of warrant against him is not sufficient. It is only when the
witness does not appear even after all the processes under Order 16 Rule 10,
which the Court considered to be fit and proper had been exhausted, that the
foundation will be laid for the application of Section 69, Evidence Act………In
order that S.69, Evidence Act, may be applied ………….the plaintiff must move the
Court for process under Order 16 Rule 10 Civil P.C., when a witness summoned by
him has failed to obey the summons…’
Further, in Hare Krishna Panigrahi vs. Jogneswar Panda & Ors.,
AIR 1939 Cal 688, the Calcutta High Court observed that the section
required that the witness was actually produced before the court and then if he
denied execution or his memory failed or if he refused to prove or turned
hostile, other evidence could be admitted to prove execution. If, however, the
witness was not before the court at all and the question of denying or failing
to recollect the execution of the document did at all arise… the plaintiff
simply took out a summons against the witness and nothing further was done
later on. The court held that in all such cases it was the duty of the
plaintiff to exhaust all the processes of the court in order to compel the
attendance of any one of the attesting witnesses, and when the production of
such witnesses was not possible either legally or physically, the plaintiff
could avail of the provisions of section 69 of the Evidence Act.
In this respect, the Supreme Court in Babu Singh and others vs. Ram
Sahai alias Ram Singh (2008) 14 SCC 754 has explained that section 69
of the Evidence Act would apply where the witness is either dead or out of the
jurisdiction of the court, or kept out of the way by the adverse party, or
cannot be traced despite diligent search. Only in that event the Will may be
proved in the manner indicated in section 69, i.e., by examining witnesses who
were able to prove the handwriting of the testator. The burden of proof then
may be shifted to others. The Court further propounded that while in ordinary
circumstances a Will must be proved keeping in view the provisions of section
63 of the Indian Succession Act and section 68 of the Evidence Act, in the
extraneous circumstances laid down in section 69 of the Evidence Act, the
strict proof of execution and attestation stands relaxed. However, in this case
the signature and handwriting, as contemplated in section 69, must be proved.
FINDINGS OF THE COURT
The Supreme Court in the Kalyanaswamy
case (Supra) considered the question whether (despite the fact
that both the attesting witnesses were dead), the matter to be proved u/s 69 of
the Evidence Act was the same as a matter to be proved u/s 68 of the same Act?
In other words, section 68 of the Act mandatorily requires that in the case of
a Will at least one of the attesting witnesses must not only be examined to
prove attestation by him, but he must also prove the attestation by the other
attesting witness. The court held that while it was open to prove the Will and
the attestation by examining a single attesting witness, it was incumbent upon
him to prove attestation not only by himself but also the attestation by the
other attesting witness.
The Apex Court agreed with the principle that section 69 of the Evidence
Act manifests a departure from the requirement embodied in section 68. In the
case of a Will, when an attesting witness is available, the Will is to be
proved by examining him. He must not only prove that the attestation was done
by him, but he must also prove the attestation by the other attesting witness.
This is subject to the situation which is contemplated in section 71 of the Evidence
Act which allows other evidence to be adduced in proof of the Will among other
documents where the attesting witness denies or does not recollect the
execution of the Will.
Section 71 of the Evidence Act states that if the
attesting witness to a document denies or does not recollect the execution of
that document, its execution may be proved by other evidence. The Apex Court
held that the fate of the transferee or a legatee under a document (which is
required by law to be attested), is not placed at the mercy of the attesting
witness and the law enables corroborative evidence to be effected for the
document despite denial of the execution of the document by the attesting
witness.
One of the important rules laid down by the Supreme Court is that in a case
covered u/s 69 of the Evidence Act, the requirement pertinent to section 68 of
the same Act (that the attestation by both the witnesses is to be proved by
examining at least one attesting witness), is dispensed with. In a case covered
u/s 69 what was to be proved as far as the attesting witness was concerned was
that the attestation of one of the attesting witness was in his handwriting.
The language of the section was clear and unambiguous. Section 68 of the
Evidence Act contemplated attestation of both attesting witnesses to be proved
but that was not the requirement in section 69.
The Court also dealt with another aspect about section 69 of the Evidence
Act. Section 69 spoke about proving the Will in the manner provided therein.
The word ‘proved’ was defined in section 3 of the Evidence Act as follows:
‘Proved. – A fact is said to be proved when, after considering the matters
before it, the Court either believes it to exist, or considers its existence so
probable that a prudent man ought, under the circumstances of the particular
case, to act upon the supposition that it exists.’
According to the Supreme Court, the question to be asked was whether having
regard to the evidence before it, the Court could believe the fact as proved.
The Court held that in a case where there was evidence which appeared to
conform to the requirement u/s 69, the Court was not relieved of its burden to
apply its mind to the evidence and it had to find whether the requirements of
section 69 were proved. In other words, the reliability of the evidence or the
credibility of the witnesses was a matter for the Court to still ponder over.
In this case, one of the witnesses was an Income-tax practitioner and the other
was a doctor. Both of them were respectable professionals who were well known
to the testator and there was no reason to doubt their credibility. Applying
these principles, the Supreme Court found that based on external evidence
before it, the signature of one of the attesting witnesses and the testator
were proved.
The Court also considered the physical and mental
capacity of the testator to make a valid Will. It held that as far as his
health was concerned, it was well settled that the requirement of sound
disposing capacity was not to be confused with physical well-being. A person
who has had a physical ailment may not automatically be robbed of his sound
disposing capacity. The fact that a person was afflicted with a physical
illness or that he was in excruciating pain would not deprive him of his
capacity to make a Will. What was important was whether he was conscious of
what he was doing and whether the Will reflected what he had chosen to decide.
In this case, the testator was suffering from cancer of the throat but there
was nothing to indicate in the evidence that he was incapable of making up his
own mind in the matter of leaving a Will behind. The fact that he was being fed
by a tube could hardly have deprived him of his capacity to make a Will.
Accordingly, the Court opined that the requirements of section 69 were
fulfilled and, hence, the Will was a valid Will.
CONCLUSION
A Will is a very important, if not the most
important, document which a person may execute. Selecting an appropriate
witness to the Will is equally important. Some suggestions in this respect are
selecting a relatively younger witness. Further, one should consider having
respectable professionals, businessmen, etc., as witnesses so that their
credibility is not doubted. As far as possible, have people who know the
testator well enough. In the event that both the witnesses predecease the
testator, he must make a new Will with new witnesses. Always remember, that all
precautions should be taken to ensure that a Will should live longer than the
testator!
