Evidence — Proof of execution of document — Will — Evidence Act, section 68.

The appellants’ application for grant of letter of administration had been dismissed on the ground that the Will had not been proved, therefore the same could not be looked into.

On appeal it was observed by the High Court that a will is required to be attested by two witnesses. Section 68 of the Evidence Act lays down the procedure for proof of a document, which is required by law to be attested. Section 68 of the Evidence Act reads as follows: “Proof of execution of document required by law to be attested. 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, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.”

Thus in view of the aforesaid provision, if a Will (which is required under the law to be attested by witness) is not proved by adducing evidence of attesting witness, the same cannot be looked into evidence, unless the appellant shows that the said attesting witnesses are not alive and/or not capable to give evidence. In the instant case, both attesting witnesses of the Will were alive. Under the said circumstance, it was held that the Will had not been proved in accordance with law and therefore the same cannot be looked into.