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Adv.Bhupesh is a member of Munsiff Magistrate exam training program.
Question
The plain schedule property belonged to the father of the plaintiff. Father died. According to the plantiff,on the death of the father, the property devolved upon him and the defendant.He filed a suit for partition. The defendant resisted the suit contending that it is his exclusive property.According to him ,his father much before his death, bequeathed the property to him as per Exhibit B1 will.
Plaintiff specifically denied the execution of the will.
Plaintiff and different gave oral evidence in tune with their pleadings.One of the attesting witness to the will died. The remaining attesting witness was examined as DW-2.He deposed that he witnessed the execution of the will.But his evidence is not sufficient to satisfy the ingredients of section 63 of Indian succession Act.
Thereafter the plaintiff filed three petitions ; one to send the Admitted signature of the testator as well as Ex B1will for scientific examination To compare the signatures contained in those documents and the second one to issue summons to the joint Sub Registrar of SRO Prove the execution of exhibit B1. The third petition was to issue summons to the scribe to examine him. The plantiff sought to introduce the above additional evidence in order to prove the due execution of the will. It is a fact that DW-2 did not either denied or recollect the execution of will.
Can the propounder be permitted to adduce the evidence mentioned above to prove the execution of the will? Explain?
Answer
The only limited question that need consideration is whether the defendant is entitled to resort to the aid of Section 71 of The Evidence Act.
Section 63 of Indian succession act lays down the rules relating to the execution of an unprivileged will. The rules are namely:
- The testator share sign or affix is mark to the will or shall be signed by some other person in his presence and by his direction.
- The Signature or mark of the testator or the signature of the person signing for shall be so placed that it shall appear that it was intended there by to give effect to the writing as a will.
- The will shall be attested by two or more witnesses each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator or has received personal acknowledgement of a signature or mark or the signature of such other person; and each of the witness shall sign the will in the presence of the testator.
- But it shall not me necessary that more than one witness be present the same time and also no particular form of attestation is needed.
Section 63 Is the procedure for due execution of a will and is applicable to every testator except:
- Soldier employed in an expedition or engaged in actual warfare.
- An air man so employed or engaged.
- A mariner at a sea.
Clause(c) of section 63 of Indian Succession Act, requires a will to be duly attested atleast by two witnesses.
Section 68 of the Indian Evidence Act states that if a document is required by law to be attested, it shall not be used as an evidence until, atleast one attesting witness has been called for the purpose of proving its execution, if there is an attesting witness alive and subject to the process of the court and is capable of giving evidence.
From the plain reading of section 68, it is clear that if there is one attesting witness alive and is subject to the process of the court and is capable of giving evidence, then its execution can be duly proved only after examining that witness.
In the given case one of the attesting witnesses is alive and he is examied before the court. He deposed that he witnessed the execution of the will, but his evidence was not sufficient enough to satisfy the due execution of will as per the ingredients of section 63 of Indian Successsion Act.
Now, the question is whether the defendant can invoke Section 71 of evidence Act to give other evidence to supplement the evidence of the witness who have been examined before the court.
As per Section 71 of the Evidence Act, if the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.
The facts of the case clearly state that the attesting witness had not denied the execution of the will and he admitted that he witnessed the execution of the will.
It is clear that the aid of Section 71 can be resorted to only when the attesting witness, who have been called, deny or fail to recollect the execution of the document. Then only it can be proved by other evidences. Section 71 of Evidence Act is permissive and an enabling section permitting a party to lead evidence in certain circumstances. But section 68 of evidence Act is not merely an enabling section. It lays down the necessary requirements to be observed by the court before holding that a document is proved. Section 71 is meant to lend assistance and come to the rescue of a party who had done his best, but driven to a state of helplessness and impossibility cannot be let down without anyother means of proving due execution by other evidences as well.
Therefore, the propounder cannot be allowed to invoke Section 71 of The Evidence Act to supplement the evidence of attesting witness.
Case law referred: 2003(0) AIR(SC) 761
(Question from Munsiff Magistrate Main exam 2022 paper)
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