Mandatory Evidence of Attesting Witness Is Essential for Proving Will Despite Registration or Scribe Testimony

In brief

The question

1. Whether the Courts below were correct in accepting the Wills (Ex. B8 and Ex. B9) despite the propounders’ failure to examine any attesting witnesses as required under Section 68 of the Evidence Act

The court held

Ex. B8 and Ex. B9 were not proved in accordance with law.

It also directed

The High Court partly allowed the Second Appeal and allowed the Cross-Objection; The plaintiffs (appellant/R1) and the sons (R2/R3) are each entitled to a 1/4th share in Schedule A and Schedule B properties.

The dismissal of the suit regarding Schedule C was confirmed as the Settlement Deed stood unchallenged.

01Facts

The plaintiffs (daughters) filed a suit for partition of four items of properties (Schedules A to C) belonging to their deceased parents, Padmanabhan (D1) and Marimuthu.

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The defendants (sons) resisted the suit, claiming title over Schedule A (Items 1 2) via a Will dated 23.11.2000 (Ex. B8) executed by the mother, and title over Schedule B via a Will dated 06.12.2000 (Ex. B9) executed by the father.

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They further claimed Schedule C was settled via a Settlement Deed (Ex. B7).

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The Trial Court dismissed the suit in toto, accepting the Wills.

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The First Appellate Court upheld the Wills but granted a decree for Schedule A (Items 3 4) to the plaintiffs.

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The plaintiffs appealed the validity of the Wills, while the defendants filed cross-objections regarding the allotment of Items 3 4.

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02Issues

i.1. Whether the Courts below were correct in accepting the Wills (Ex. B8 and Ex. B9) despite the propounders’ failure to examine any attesting witnesses as required under Section 68 of the Evidence Act

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ii.2. Whether a scribe’s testimony can substitute for an attesting witness's testimony when an attestor is alive but in prison

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iii.3. Whether the First Appellate Court erred in allotting the entirety of Items 3 and 4 of Schedule A to the plaintiffs, excluding the sons

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03Law Applied

Section 63(c) of the Indian Succession Act, 1925, which mandates that a Will must be attested by two or more witnesses.

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Section 68 of the Indian Evidence Act, 1872, requiring at least one attesting witness to be examined to prove a Will.

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N. Kamalam v. Ayyasamy (scribe is not an attestor).

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Janki Narayan Bhoir v. Narayan Namdeo Kadam (mandatory examination of attestor).

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Order XVI-A of the CPC regarding the examination of witnesses confined in prison.

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Section 58 of the Evidence Act regarding admitted facts.

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Provisions in the judgment · 2 · Linked ones open on LawLens

Code of Civil Procedure, 1908 Section 100

Indian Succession Act, 1925 Section 63

04Reasoning

Regarding the father’s Will (Ex. B9), the Court found no specific admission of its execution in the pleadings; thus, the mandate of Section 68 was not waived.

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The defendants failed to examine any attesting witness during the trial.

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Regarding the mother’s Will (Ex. B8), the Court rejected the scribe’s (DW2) testimony as a substitute for an attestor, noting he lacked animo attestandi and did not testify that the testatrix signed in the presence of witnesses.

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The Court held that the imprisonment of an attesting witness does not render them "untraceable" under Section 69, as Order XVI-A CPC provides procedures to examine prisoners.

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Regarding Schedule C, the Court held it was excluded from partition because the plaintiffs failed to specifically challenge the registered Settlement Deed (Ex. B7).

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