Section 68 IEA | At least One Attesting Witness Is Required To Prove Execution Of Will For It To Be Valid U/s. 63 Of Succession Act: SC Reiterates

The Supreme Court reiterated that Section 68 of the Indian Evidence Act, 1872 (IEA) requires at least one attesting witness to prove the Will's execution in line with Section 63 of the Indian Succession Act, 1925 (ISA).

The Court dismissed the Appeal challenging the High Court’s order wherein the Will of Leela Devi (Appellant’s Maternal Aunt) was considered invalid.

The Bench comprising Justice C.T. Ravikumar and Justice Sanjay Kumar noted, “Section 68 of the Evidence Act requires at least one attesting witness to the Will to prove its execution in terms of Section 63 of the Succession Act, but it is clear that neither Lok Nath Attri nor Chaman Lal passed muster in satisfying this requirement”.

Advocate E.C. Agrawala appeared for the Appellant, and Advocate Sharan Thakur appeared for the Respondent.

Leela Devi executed and registered a Will. Dhani Ram, the son of Leela Devi’s brother, claimed the properties left by Sohan Lal, Leela Devi's husband, under the Will. Shiv Singh, the son of Sohan Lal's brother, disputed the validity of the Will. The Trial Court, the Appellate Court, and the High Court had different opinions on the validity of the Will. The Trial Court held that the Will was not valid because the evidence of the attesting witnesses was contradictory. The Appellate Court, on the other hand, considered the Will to be valid because Leela Devi was of sound mind, and it was natural for her to execute a Will in favor of her brother's son. However, the High Court held that the Will was invalid because Dhani Ram had a keen interest in its execution and registration, and there were discrepancies in the evidence of the attesting witnesses. The Appellant filed a Civil Appeal challenging the order of the High Court.

“Bare perusal of the statements made by these two attesting witnesses demonstrates that they are not on same page. Lok Nath Attri (DW-2) claimed that Leela Devi signed the Will in his presence and in the presence of Chaman Lal. However, and most significantly, he did not state that Chaman Lal and he affixed their signatures in the document in the presence of Leela Devi. On the other hand, Chaman Lal claimed that he put his signatures at the bottom of the pages at the request of Dhani Ram and that he never saw Leela Devi affix her signatures in the document”, the Court noted.

The Bench observed that the attesting witnesses did not fulfill the legal requirements stipulated in Section 63(c) of the ISA to prove the validity of the Will. One witness claimed that the testator had signed the Will in their presence, but the other vehemently denied it. However, both witnesses failed to confirm that they signed the Will in the presence of the testator, a crucial requirement under Section 63(c) of the ISA.

“In consequence, Section 71 of the Evidence Act had a role to play in the matter, as one attesting witness, Chaman Lal, denied the very execution of the document in his presence while the other attesting witness, Lok Nath Attri, did not establish its execution in terms of the legal mandate. It was, therefore, incumbent upon Dhani Ram to lead other evidence to prove the execution of the Will by Leela Devi. However, neither Ghanshyam Dutt Sharma, the document writer who scribed the Will, nor anyone from the Registrar’s Office at Kasauli were examined to prove its execution”, the Bench observed.

Additionally, The Court noted that the burden was on Dhani Ram to provide additional evidence to prove the Will's execution by Leela Devi, but he failed to do so. The Bench held that the essential legal requirements were not met to prove the validity of the Will, and the property would pass to Shiv Singh through intestate succession under Section 15 of the ISA.

Accordingly, the Court dismissed the Appeal and affirmed the impugned order.

Cause Title: Dhani Ram (deceased) (through LRs) & others v Shiv Singh (2023 INSC 876)

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