Jojy George & Saji Koduvath.

Key Takeaways

• It is not necessary – Attesting witnesses should see the execution of the Will.
• It is not necessary – Each witness should see the other witnesses attest the Will.
• It is not necessary – Witnesses should be present at the place of execution of the Will.
• It is not necessary – ‘Attestation’ by both (all) Witnesses to the Will should be proved.
• If an attesting witness examined in court turns hostile, another attesting witness need not be examined.
• If both attesting witnesses died,’execution of the Will need not be proved.
• In the above situation, execution is presumed from proof of handwriting of one witness and that of the executant.
• There is no requirement to “Prove the Truth of Contents” of a Will.
• When execution of a Will is ‘admitted’, it need not be proved.
• ‘Presumptions’ (alone) are sufficient to prove a will when Sec. 71 Evd. Act is invoked.

Abstract

• Section 68 of the Evidence Act, 1872 deals with proof documents required by law to be attested (including Wills), when one attesting witness at least is available.
• Sec. 69 of the Evidence Act says as to proof of documents required by law to be attested (including Wills) when-
  • (i) no attesting witness can be found, and
  • (ii) evidence is available to prove the ‘attestation’ made by at least one attesting witness.
• Sec. 71 of the Evidence Act says – “If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.”
• No(express) provision in the Evidence Act, where –
  • no attesting witness is available, as provided under Sec. 68 Evidence Act,
  • and
  • evidence, under Sec. 69 Evidence Act, is also not available (e.g., it being very old – say, 75 years) to prove the handwriting of the attesting witness and the executant.
• In the above situation also – where Wills cannot be proved in terms of the Sec. 68 and 69 – Wills can be proved by “other evidence” invoking the principles in, Sec. 71 (since Sec. 71 deals with another situation).

Introduction

Proof of documents involves two things.

• First, Proof of execution.
• Second, Truth of its contents.

For the purpose of Sec. 67, 68 and 69 of the Indian Evidence Act, 1872, the proof of execution is ‘proof of signature and handwriting’. This requirement as to proof of execution is independent from the requirement as to ‘proof of truth’.

Sec. 67, which lays down the foundational principles as to the proof of documents, does not speak about truth of contents of the documents. Sec. 67 reads as under:

• 67. Proof of signature and handwriting of person alleged to have signed or written document produced—If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting.

The fundamental principles as to proof of execution a document is that the execution has to be proved by admissible evidence, that is by the ‘evidence of those persons who can vouchsafe for the truth of the facts in issue’ (Ramji Dayawala v. Invest Import: AIR 1981 SC 2085; Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745). But, in the facts and circumstances of each case, the court is at liberty to invoke its wisdom and fill certain gaps in evidence by applying ‘presumption’ (Indian Oxygen Limited v. IR Workmen,  AIR  1969 SC 612; Village Panchayat Nori Madhusudan v. Nori Venkatarama Deekshithulu, 1991 Supp 2 SCC 228).

It is not Necessary – Witnesses must See Execution of Will

The attestation of a Will, under Sec. 63 of the Succession Act can be made –

• either by
• the witnesses who have “seen the testator sign or affix his mark”
• or by
• the witnesses who have “received from the testator a personal acknowledgment of his signature or mark”.

That is, both the attesting witnesses need not be present at the time of execution of the Will. And, one witness need not see the other attests the Will. It is fortified by last limb of Sec. 63 Succ. Act.

• “but it shall not be necessary that more than one witness be present at the same time….”

Inferences and Presumptions

Elaborate provisions are contained in the Indian Evidence Act for taking inferences and presumptions, on the basis of the facts proved. Our law permits to presume ‘truth’ and ‘due execution’ in this process. ‘Truth of contents’ and ‘due execution’ can also be inferred when a document is admitted in evidence without objection.

But, despite admission, proof as to ‘truth’ of contents of a document is essential, if ‘truth of contents’ is in issue, or in dispute (Ramji Dayawala Vs. Invest Import, AIR 1981 SC 2085).

Read Blog: Effect of Marking Documents Without Objection – Do Contents Stand Proved?

PART I – Proof of Wills

Will – Attestation under Sec. 63(c) of the Succession Act

Wills have to be executed as laid down in Sec. 63(c) of the Succession Act, 1925.

Sec. 63(c) of the Indian Succession Act reads as under:

• “63. Execution of unprivileged wills––Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules––
• .(a) …..
• (b) …..
• (c) 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 from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person;
• and each of the witnesses shall sign the will in the presence of the testator,
  • but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.”

‘Attestation’ as defined in Sec. 3 of the T.P. Act

The word ‘Attestation’ is defined in Sec. 3 of the Transfer of Property Act. It is in pari materia to Succession Act. Sec. 3, TP Act reads as under:

Section 3 – Interpretation-clause – In this Act, unless there is something repugnant in the subject or context –

• “attested“, in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom
  • has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant,
  • or
  • has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person,
• and each of whom has signed the instrument in the presence of the executant;
  • but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary.”

Modes of Proof of Documents Required By Law To Be Attested.

Section 68 of the Evd. Act provides that the documents required by law to be attested shall not be used in evidence until at least one attesting witness has been examined, if there be

• (i) an attesting witness alive,
• (ii) he is subject to the process of court and
• (iii) he is capable of giving evidence.

Sec. 68 of the Evidence Act reads as under:

• “68. 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:
• Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.

The proviso lays down that if its execution is not specifically denied by the person by whom it purports to have been executed, it shall not be necessary to call an attesting witness in proof of the execution of any document not being a Will if such document is registered in accordance with the provisions of Indian Registration Act, 1908. That is, for the purpose of proving the Will, the examination of the attesting witness is necessary.

Following documents are required by law to be attested by two or more attesting witnesses.

1. Will: Sec. 63 of the Succession Act.
2. Mortgage deed: Sec. 59 of the T P Act.
3. Gift deed: Sec. 123 of the T P Act.
4. Bond: Sec.  2(5) of the Indian Stamp Act, 1899.

Sec. 68 and 69 Evidence Act – What is laid down?

Sec. 68 of the Evidence Act lays down –

• for proving documents that require attestation (including Wills) one attesting witness at least has to be called for – for proving
  • the execution.

Sec. 69 of the Evidence Act reads-

• “69. Proof where no attesting witness found – If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.”

Sec. 69 of the Evidence Act lays down that (if attesting witnesses are not found), the will can be proved –

• (i) by the evidence as to the attestation of one attesting witness – that it is in his handwriting, and
• (ii) the signature of the person executed the document – that it is in his handwriting.
• Note: 1. As regards handwriting of attesting witness, evidence on attestation is required; but in case of the handwriting of the person executing the document, evidence on signature alone (and not execution, as such) is required. It is clear that the wordings of the Section invite more cogent and convincing evidence to attestation, than that of execution.
• 2. The words in Sec. 69 as to attestation, “in his handwriting“, reduces the burden on “attestation” (See: T. R. Srikantaiah Setty v. Balakrishna, ILR 1999 Kar 2953).

Analysis of Sec. 68 and 69

(i) Sec. 68 requires proof of “execution” by the executant;

• but, under Sec. 69, “handwriting” of one witness, and that of the executant, alone need be proved (and not “execution” as such). As noted above, the words in Sec. 69 as to attestation, “in his handwriting“, reduces the burden on “attestation“.

(ii) If (at least) one attesting witnesses is alive, he has to be examined, under Sec. 68. The burden is high, when Sec. 68 is invoked – for, “execution” has to be proved.

• Under Sec. 69, the execution is presumed from the proof of the handwriting of the attesting witness and the executant (See: Mira Bai v. Jai Singh, AIR  1971 Raj 303).

(iii) Sec. 68 and 69 being provide particular modes for proving documents that require attestation, the Presumptions available on a document, by themselves, cannot be called for, for proving  them (unless Sec. 71 can be invoked, as stated below).

Should “Attestation of other Witnesses” be Proved by the Witness (Examined)

If we go by Sec. 68, what is required from the attesting witness (in Sec. 68) is evidence as to “execution” by the executant (alone); and not “attestation of other witnesses”.

Therefore, there would not be any deficiency or shortcoming for not swearing matters like “attestation of other witnesses” (in the chief examination) when the attester of a Will is called for examination in court (though they may be points for cross examination).

• It is further clear from the following words in Sec. 63(c) of the Succession Act –“it shall not be necessary that more than one witness be present at the same time” (when the will is executed).

It is also noteworthy that Sec. 71 allows (if the attesting witness examined in court denies execution of the document and his ‘attestation’) to prove the ‘execution’ by adducing “other evidence”; and Sec. 71 does not require compulsory examination of other attesting witness, if any.

Will Attestation– What be Proved u/s. 63(c) Suc. Act (sans S. 68 & 69 Evid. Act)

As shown above, the attestation of a Will, under Sec. 63 of the Succession Act, can be made either by the witnesses (minimum two) who have “seen the testator sign or affix his mark” or by the witnesses who have “received from the testator a personal acknowledgment of his signature or mark”.  (By virtue of Sec. 68, 69 and 71, attestation by one witness alone need be proved.)

Sec. 68 & 69 Evid. Act are Enabling Provisions

No requirement to “Prove the Truth of Contents” of Documents – It is very important to notice that Sec. 68 and 69 make it clear – there will be no requirement to specifically “prove the truth of contents” of documents that fall under Sec. 68 and 69, Evidence Act (i.e., Will, Bond, Gift and Mortgage); and, proof of its execution alone will be sufficient. This is because the Evidence Act expressly stipulates, in Sec. 68 and 69, as to proving documents by furnishing evidence on “execution” (Sec. 68); and on “attestation” and “signature”,  (that too by proving handwriting – Sec. 69).

Sec. 67, the general provision, directs that for proving a document proof of signature and handwriting of person alleged to have signed or written must be proved. No mode of proof is prescribed in Sec. 67. Therefore, the fundamental principles as to proof of execution a document apply with full vigour as regards Sec. 67; that is the execution has to be proved by admissible evidence – by the ‘evidence of those persons who can vouchsafe for the truth of the facts in issue’ (Ramji Dayawala v. Invest Import: AIR 1981 SC 2085; Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745).

But, Sec. 68 and 69 water-down the full vigour and lays down an enabling ‘mode of proof’ (with respect to documents required by law to be attested). It is a deliberate deviation from Sec. 67, as held in Sumathi Amma v. Kunjuleskhmi Amma, 1964 Ker LT 945. It is held as under:

• “…  It (Section 67 Evidence Act) only says that facts have to be proved, and, unlike Section 68, does not prescribe any particular mode of proof. ..”

It is also a remarkable and outstanding factor that the special character as to compulsory “attestation by witnesses” is attached to the “four documents” (Will, Bond, Gift and Mortgage) with a view to “prove the truth of contents” by primarily proving ‘attestation’. It is evident that this special characteristic identity is given to these documents considering their unique and exceptional nature.

Further, all the requirements in Sec. 63, Succession Act are not to be categorically proved (in chief examination, by the propounder) by virtue of the enabling provisions in the Evidence Act. It is obvious – it is left for ‘presumption’; and the burden to rebut it is casted on the other side.   

Sec. 68 and 69 do not require –

• (i) examination of all attesting witnesses.
  • Note: (a) A Will must have been attested by two or more witnesses; but, the evidence of one attesting witness alone need be given, even if he is hostile.
  • (b) Non examination of other attesting witnesses will not call for adverse inference also, if the will is (sufficiently) proved otherwise.
• (ii) evidence that each witness has seen the testator sign or affix his mark; or has received from the testator a personal acknowledgment of his signature or mark.
  • Note: (a) It must be so; but, it need not be proved, positively through the attesting witness examined.
  • (b) It can be a point for cross-examination of the concerned witnesses (by the other side), to disprove proper attestation.
• (iii) evidence that each of the witnesses have signed the will in the presence of the testator.
  • Note: (a) It must also be so; but, it need not be positively proved.
  • (b) It can also be a point for cross-examination of the concerned witnesses, to disprove proper attestation.

If all legal formalities are complied with and when ex-facie free from suspicion, and the evidence required under Sec. 68 or 69 is furnished, the law permits the court to presume that that the Will has been signed or written by the person whose signatures it bear or in whose handwriting it purports to be.

Onus on propounder discharged when essential facts just indicated

Our Apex Court in H. Venkatachala Iyengar v. B. N. ThimmajammaAIR 1959 SC 443 emphasided that the onus on the propounder of a Will could be taken to be discharged ‘on proof of the essential facts just indicated’.

Under Sec. 69, “Handwriting”, Not ‘Attestation’ or ‘Execution’, to be Proved

Under Sec. 69, “handwriting” of one witness, and that of the executant, alone need be proved; and not “execution” of the executant or ‘attestation’, as such. As noted above, the words in Sec. 69 as to attestation, “in his handwriting“, reduces the burden on “attestation” (See: Selvasubramaniam v. Subburathinam, 2015-4 Mad LJ 452; V. Kalyanaswamy v. L. Bakthavatsalam, 2020-9 Scale 367).

Presumption play a great role – Execution Presumed from Handwriting

It is clear that presumption play a great role in Sec. 69. That is, under Sec. 69, the execution is presumed from the proof of the handwriting of the attesting witness and the executant.

Witness can be cross examined to negate the presumption

This presumption being a rebuttable one, and when the burden is shifted to others (Babu Singh v. Ram Sahai alias Ram Singh, 2008-14 SCC 754), they have to rebut the presumption, and can cross examine the witness to negate the presumption.

Why great weight to Presumption of due execution and Truth for Will

In ‘Laws of Will in India and Pakistan’, by Mantha Ramamurthi, it is said:

• “If a will appears on the face of it to have been duly executed and attested in accordance with the requirements of the Act, the maxim “omni a proe sumuntur rite esse acta,” applies, unless it is clearly proved by the attesting witnesses that the Will is not in fact duly executed. The Court of Probate has long been accustomed to give great weight to the presumption of due execution arising from the regularity ex facie of the testamentary paper produced where no suspicion of fraud has occurred.”

After quoting above passage, it is observed in Lalitaben Jayantilal Popat v. Pragnaben Jamnadas Kataria, (2008) 15 SCC 365 as under:

• “The maxim ‘omni a Proe sumuntur rite esse acta’ is an expression in a short form, of a reasonable probability, and of the propriety in point of law on acting on such probability. The maxim expresses an inference which may reasonably be drawn when an intention to do some formal act is established. In Blake v. Knight Sir Herbert Jenner Fusty observed – Is it absolutely necessary to have positive affirmative testimony by the subscribed witnesses that the Will was actually signed in their presence, or actually acknowledged in their presence? Is it absolutely necessary, under all circumstances that the witnesses should concur in stating that these acts took place? Or is it absolutely necessary, where the witnesses will not swear positively, that the Court should pronounce against the validity of the will. I think these are not absolute requisites to the validity of the will. Consequently, “where the evidence of attesting witnesses is vague or doubtful or even conflicting the Court may take into consideration the circumstances of the case and judge from them collectively whether the requirements of the Statute were complied with; in other words the Court may, on consideration of other evidence or of the whole circumstances of the case, come to the conclusion that their recollection is at fault, that their evidence is of a suspicious character, or that they were wilfully misleading the Court, and accordingly disregard their testimony and pronounce in favour of the will.”
• (Note: This decision finally accepted the view – ‘Where one attesting witness is examined and he fails to prove the attestation of the will by the other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act’.)

Witnesses to the Will Need Not See the Execution of the Will

If the Will, already executed by the testator (author of the will), is produced before one witnesses and the testator gives “a personal acknowledgment of his signature or mark” (put upon the will) and on that basis the witness attests the Will; and then the testator approaches the second witness and gets the Will attested (by the second witness also) in the same manner, such attestations are also valid and sufficient under Sec. 63(c).

In Ganesan v. Kalanjiam, (2020)11 SCC 715, the Supreme Court of India (Ashok Bhushan, Naveen Sinha, JJ.) held as under:

• “The acknowledgement may assume the form of express words or conduct or both, provided they unequivocally prove an acknowledgement on part of the testator. Where a testator asks a person to attest his Will, it is a reasonable inference that he was admitting that the Will had been executed by him.
• “There is no express prescription in the statute that the testator must necessarily sign the will in presence of the attesting witnesses only or that the two attesting witnesses must put their signatures on the will simultaneously at the same time in presence of each other and the testator.”

Also see: Ganshamdoss Narayandoss v. Saraswathi Bai, AIR 1925 Mad 861,

• Ganshamadoss Narayandoss v. Gulab Bi Bai, AIR 1927 Mad 1054 ,
• Pachigolla Venkatara v. Palepu Venkateswararao, AIR 1956 AP 1
• Bishan Devi Khanna v. Pirthi Singh Dhillon, AIR  1963 P&H 66,
• Chhanga Singh Indar Singh v. Dharam Singh, AIR 1965 Punj 204,
• Damodhar Bordoloi v. Mrinalini Devi Trust Board, AIR 1999 Gau 53,
• S. Jagadish vs Dr. S. Kumaraswamy, ILR 2008 Kar 87.

It is clear that the view taken in a large number of decisions do not lay down correct law when they state as under (ignoring the words in Sec. 63 Succession Act, “or has received from the testator a personal acknowledgment of his signature or mark”) as held in Benga Behera v. Braja Kishore Nanda, 2007-9 SCC 728) –

• “A Will is required to be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will. “

In Vikrant Kapila Vs. Pankaja Panda, 2023-6 ALT 37 (SC), it is observed as under:

• “26. …. It is useful to refer to Gopal Swaroop v. Krishna Murari Mangal, (2010) 14 SCC 266, wherein this Court held that as per the provisions of Sec. 63 of the Indian Succession Act, 1925, the due execution of the Will consists of the following:
• i. The testator should sign or affix his mark to the Will;
• ii. The testator’s signature or the mark of the testator should be so placed that it should appear that it was intended to give effect to the writing as a Will;
• iii. Two or more witnesses should attest the Will;
• iv. Each of the said witnesses must have seen the testator signing or affixing his mark to the Will, and each of them should sign the Will in the presence of the testator.

In Savithri v. Karthyayani Amma, (2007) 11 SCC 621, Supreme Court has held as under:

• “17. … A will like any other document is to be proved in terms of the provisions of the Succession Act and the Evidence Act. The onus of proving the will is on the propounder. The testamentary capacity of the testator must also be established. Execution of the will by the testator has to be proved. At least one attesting witness is required to be examined for the purpose of proving the execution of the will. It is required to be shown that the will has been signed by the testator with his free will and that at the relevant time he was in sound disposing state of mind and understood the nature and effect of the disposition. It is also required to be established that he has signed the will in the presence of two witnesses who attested his signature in his presence or in the presence of each other. Only when there exists suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the court before it can be accepted as genuine.”(Quoted in:  Vikrant Kapila Vs. Pankaja Panda, 2023-6 ALT 37 (SC).

Should Attestation by “Both” Witnesses be Proved

As stated above, if we go by Ganesan v. Kalanjiam, (2020)11 SCC 715, there is no scope for any doubt – attestation made by “both” attesting witnesses need not be proved; as it is observed that there is no express prescription in the statute that the testator must necessarily sign the will in presence of the attesting witnesses only or that the two attesting witnesses must put their signatures on the will simultaneously at the same time in presence of each other and the testator.

Onus on propounder discharged when essential facts just indicated

Our Apex Court in H. Venkatachala Iyengar v. B. N. Thimmajamma, AIR 1959 SC 443, emphasided that the onus on the propounder of a Will could be taken to be discharged ‘on proof of the essential facts just indicated’.

Burden to Prove Coercion, Undue Influence or Fraud on him who alleges it

Who has the ‘burden of proof’ when a will is resisted with the allegation of coercion, undue influence or fraud? How to deal with such a situation? It is considered in V. Kalyanaswamy v. L. Bakthavatsalam, 2020-9 Scale 367.

In V. Kalyanaswamy v. L. Bakthavatsalam, the Supreme Court held as under:

• “83. Lastly, while the burden to prove the will and to satisfy the conscience of the court that there are no suspicious circumstances or if there are any to explain them is on the propounder of the will, the burden to prove that the will is procured by coercion, undue influence or fraud is on the respondents who have alleged the same.”

It is made clear-

• The burden to prove that the will is free from suspicious circumstances is on the propounder.
• If there are suspicious circumstances to explain, the propounder has to explain them.
• (However), if the respondent alleges that the will is procured by coercion, undue influence or fraud, the burden to prove such allegations is on the respondents.

In Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao, 2006 (14) SCALE 186,

• “The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. [See: Madhukar D. Shende v. Tarabai Shedage,  2002-2 SCC 85 and Sridevi v. Jayaraja Shetty, 2005-8 SCC 784]. Subject to above, proof of a Will does not ordinarily differ from that of proving any other document.” (Quoted in: Savithri  v. Karthyayani Amma, 2007-11 SCC 621)

Should the Second Witness be Examined If the First Witness Turns Hostile

If the attesting witness, called for proving the execution of a document, turns hostile, it is not mandated in Sec. 68 that the evidence of the other attesting witnesses should necessarily be brought-in to prove the document.

If a will appears, on the face of it, to have been duly executed and attested in accordance with law, and the materials available ensures that there is no chance for fraud,the court is at liberty to give due weight to the presumptions granted under law (“omni a proe sumuntur rite esse acta); and the court can take the will as proved and proceed accordingly (See: Lalitaben Jayantilal Popat v. Pragnaben Jamnadas Kataria, (2008) 15 SCC 365).

It is profitable to look Sec. 71, which allows (if the attesting witness examined in court denies execution of the document and his ‘attestation’) to prove the ‘execution’ by adducing “other evidence”; and Sec. 71 does not require compulsory examination of other attesting witness, if any.

Sec. 63(c) of the Succession Act Misread

Though the wordings in Sec. 63(c) of the Succession Act read with Sec. 68 and 69 of the Evidence Act do not give rise to another interpretation _{^{(that, if the attesting witness examined in court denies execution, the other attesting witnesses should necessarily be brought-in to prove the document)}}, the following decisions and other decisions referred therein _{^{(reading the word “execution” as signing by the testator and the attestation by minimum two witnesses)}} presents an opposite view –

• Janki Narayan Bhoir v. Narayan Namdeo Kadam, (2003) 2 SCC 91,
• Lalitaben Jayantilal Popat vs Pragnaben Jamnadas Kataria, (2008) 15 SCC 365,
• V. Kalyanaswamy v. L. Bakthavatsalam, 2020-9 Scale 367.

In Janki Narayan Bhoir v. Narayan Namdeo Kadam, (2003) 2 SCC 91, while considering proof of execution of a Will It is held as under:

• “The one attesting witness examined, in his evidence has to satisfy the attestation of a will by him and the other attesting witness in order to prove there was due execution of the will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attention of the will by other witness also it falls short of attestation of will at least by two witnesses for the simple reason that the execution of the will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under Section 63 of the Succession Act. Where one attesting witness examined to prove the will under Section 68 of the Evidence Act fails to prove the due execution of the will then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the will by the other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act.” (Quoted and followed in: Lalitaben Jayantilal Popat vs Pragnaben Jamnadas Kataria AIR 2009 SC 1389, (2008) 15 SCC 365)

In V. Kalyanaswamy v. L. Bakthavatsalam, 2020-9 Scale 367, it is observed as under:

• “70. Reverting back to Section 69 of the Evidence Act, we are of the view that the requirement therein would be if the signature of the person executing the document is proved to be in his handwriting, then attestation of one attesting witness is to be proved to be in his handwriting. In other words, in a case covered Under Section 69 of the Evidence Act, the requirement pertinent to Section 68 of the Evidence Act that the attestation by both the witnesses is to be proved by examining at least one attesting witness, is dispensed with. It may be that the proof given by the attesting witness, within the meaning of Section 69 of the Evidence Act, may contain evidence relating to the attestation by the other attesting witness but that is not the same thing as stating it to be the legal requirement under the Section to be that attestation by both the witnesses is to be proved in a case covered by Section 69 of the Evidence Act. In short, in a case covered Under Section 69 of the Evidence Act, what is to be proved as far as the attesting witness is concerned, is, that the attestation of one attesting witness is in his handwriting. The language of the Section is clear and unambiguous. Section 68 of the Evidence Act, as interpreted by this Court, contemplates attestation of both attesting witnesses to be proved. But that is not the requirement in Section 69 of the Evidence Act”.

The Privy Council, in Roda Framroze Mody v. Kanta Varjivandas Saraiya, (1945) 47 BomLR 709, AIR 1946 Bom 12, misread relevant provisions of law and emphasised – if the attesting witnesses had not put their signatures at the same time, it was necessary to prove that (i) both put their signatures on different occasions and (ii) had done so on the acknowledgment of the testator. It is held as under:

• “Reading Section 63 of the Indian Succession Act with Section 68 of the Evidence Act, it seems to me to be clear that what the person propounding the will have to prove is that the will was duly and validly executed and that must be done by not simply proving that the signature on the will was that of the testator but that the attestations were also properly made as required by Clause (c) of Section 63. No doubt Section 68 of the Indian Evidence Act says that it is not necessary to examine both or all the attesting witnesses, but it does not follow therefrom that if one attesting witness only proves that the testator had acknowledged his signature to him, it is not necessary that the acknowledgment by the testator before the other attesting witness need be proved. All that it means is that if two attesting witnesses had signed in each other’s presence, it is not necessary to examine both of them to prove that they had received the acknowledgment from the testator. But if, as allowed under Section 63 as well as under Section 3 of the Transfer of Property Act, the attestations to the testator’s signature were not made at the same time, it is necessary, in my opinion, to prove that both the persons, who put down their attesting signatures on different occasions, had done so on the acknowledgment of the testator.” (Quoted in: Vishnu Ramkrishna Wani v. Nathu Vithal Wani, (1949) 51 BomLR 245, MC Chagla, Gajendragadkar, JJ.; Kannamaml v. Chinnaponnammal, 1997 (I) CTC 222; A. Gomathi v. A. Sangeetha, AIR 2015 Mad 218)

‘Golden rule of Interpretation’ Strong Enough to Deviate from Obdurate View

The legal propositions as to ‘golden rule of interpretation’ is strong enough to deviate from the obdurate view of Their Lordships in the Privy Council and the decisions that followed the Privy Council in this regard (which include very many Supreme Court Decisions).

Duty on the propounder to remove all the suspicious features

In Ramabai Padmakar Patil v. Rukminibai Vishnu Vekhande, (2003) 8 SCC 537, it is pointed out that it is a well affirmed proposition that it is the duty of the propounder of the Will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind.

When Execution of a Will is Admitted, Should it be Proved?

Section 68 of the Evidence Act, 1872 mandates examination of one attesting witness at least to prove documents required by law to be attested (including Wills). When execution of a Will is ‘Admitted’ by the opposite side, should it be ‘Proved’?

There is difference of opinion.

Following latest decisions assuredly lay down that when execution of the will is ‘admitted’ by the opposite side, it need not be ‘proved’ as required in Sec. 68 (by examining at least one witness).

• Boomathi v. Murugesan, 2023-2 Mad LJ 684 (DB)
• P. Radha v. Irudayadoss, 2022 SCCOnline Mad 886
• Rajeev Gupta v. Prashant Garg, 2022-1 All LJ 435.

Following decisions laid down that even when execution of a will was ‘admitted’ by the opposite side, it must have been ‘proved’ by examining at least one attesting witness.

• S.R. Srinivas v. S. Padmavathamma, (2010) 5 SCC 274 – It is observed – the execution of a Will can be held to have been proved only when the statutory requirements for proving the Will are satisfied. Admission in the pleadings as to the Will can only be about the “making of the Will” and not the “genuineness of the Will”.
• Vadakkayil Gopalan v. Vadakkayil Paru, (2013) 3 KerLT 69 –It is observed – proof of the Will by examining at least one witness was necessary (even if the Will has been admitted in the pleadings).
• Poulose A. V. v. Indira M.R., 2010 (3) KerLT Suppl. 185 : ILR 2010 Ker.388  – It is observed – No distinction is drawn, by Sec. 68, between an admitted Will and a disputed Will in the mode of proof of execution; and therefore, in all cases in which the Will is set up the procedure prescribed in Sec. 68 will have to be followed.
• Ramesh Verma v. Lajesh Saxena (2017) 1 SCC 257 – It is observed – the mandate of Section 68 of the Evidence Act has to be followed even in a case where the opposite party does not specifically deny the execution of the document in the written statement.
• Sarada v. Radhamani, 2017 (2) KLT 327. In this decision, rendered in a ‘Refence’ to resolve the dispute in the question we discuss, the Kerala High Court (DB) referred all the above decisions. And, declared the following decisions, as Per Incuriam
  1. Princelal G. v. Prasannakumari, 2009 (3) KerLT Suppl. 1342: ILR 2009 (3) Ker. 221 – It is observed – where the execution of the Will is expressly admitted, neither Section 68 nor its proviso is attracted obliging the propounder of the Will to prove due execution of the Will (for, admitted facts need not be proved: Sec. 58 of the Evidence Act).
  2. Thayyullathil Kunhikannan v. Thayyullathil Kalliani, AIR 1990 Ker.226 – Relying on Order VIII Rule 5 C.P.C. and Sec. 58 of the Indian Evidence Act, it is held that when the execution of the Will is admitted, there will not be any requirement to prove the Will.
• P. Malliga v. P. Kumaran, 2022 (2) LW 393, (Followed in Ranga Pillai v. Mannar Pillai, 2022, Mad) – It is held by the Madras High Court that a Will shall not be used as evidence until it is proved in the manner prescribed under Section 68 of the Evidence Act. The judge did not agree the view in P. Radha v. Irudayadoss, 2022 SCCOnline Mad 886. (Note: This decision, P. Malliga v. P. Kumaran, is overruled in Boomathi v. Murugesan, 2023-2 Mad LJ 684, DB)

S. 68 to be Followed, Even When the Opp. party does not Deny Execution

Sec. 68 of the Evidence Act reads as under:

• “68. 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:
• Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.

In Ramesh Verma v. Rajesh Saxena, 2017-1 SCC 257, our Apex Court held as under:

• “13. A will like any other document is to be proved in terms of the provisions of Sec. 68 of the Evidence Act and the Succession Act, 1925. The propounder of the will is called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the disposition and put his signature to the document on his own free will and the document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. This is the mandate of Sec. 68 of the Evidence Act and the position remains the same even in a case where the opposite party does not specifically deny the execution of the document in the written statement.”

Effect of ‘Admission’ of Execution of Will (by the other side)

It may be pointed out that the Apex Court did not consider in this decision, Ramesh Verma v. Rajesh Saxena – what is the position when the opposite party expressly admit the execution of the document.

Boomathi v. Murugesan, 2023-2 Mad LJ 684 (DB)

It is held in a recent Division Bench decision in Boomathi v. Murugesan, 2023-2 Mad LJ 684, that the position will be different if the Will is ‘categorically’ and ‘clearly’ admitted. The Madras High Court referred Sec. 17 (Admission) and Sec. 58 (Facts admitted need not be proved) and came to the conclusion , Sec. 68 will not be attracted where the Will is “admitted” by the other side. The Division Bench held as under:

• “23. First and foremost, it is to be borne in mind that before the Hon’ble Supreme Court in Jagdish Chand Sharma Vs. Narain Singh Saini [Dead] through Legal Representatives and Others, reported in 2015 [8] SCC 615, the validity of the Will was a core issue and the Hon’ble Supreme Court  proceeded to discuss the law with regard to proof of a Will in accordance with the statute. In such context, the Hon’ble Supreme Court has held that the position with regard to proof of a Will remains the same even if the opposite party does not specifically deny execution of the same.
• 24. The above judgment has been followed by learned Single Judges of this Court in  P. Malliga Vs. P. Kumaran reported in 2022 [2] LW 393 and Akkinirajan Vs. Maheswari and Others reported in 2023 [1] LW 72.
• 25. This Court draws the distinction between ‘specifically denied’, ‘not specifically denied’ and ‘admitted‘. The first two instances, namely, ‘specifically denied’ and ‘not specifically denied’, would fall within one category. Insofar as proof of a Will in both cases in this category, the Will would have to be necessarily proved by the propounder. However, where the opposite party categorically admits to the Will, the position would be certainly different. In India, we follow what is called the system ‘adversarial proceedings’, which is also followed in the British Courts. The foundation of this School is that parties before a Court would have to deal with facts in issue namely facts that are asserted and denied by the parties to the lis and the Court would proceed to adjudicate on such issues. When there is no dispute between the parties on certain matters, the Court would not venture to require proof of such admitted facts.”
• “33. This Court has applied its mind to the various principles laid down by the Hon’ble  Supreme Court as well as this Court and other High Courts, especially in the context of Sec. 68 of the Indian Evidence Act, proof of a Will where execution is not specifically denied and in cases where the execution is categorically admitted. The ratio laid down by the Hon’ble Supreme Court in Ramesh Verma’s case [cited supra] reported in 2017 [1] SCC 257, cannot be a precedent for the proposition where the opposite party clearly admits to the execution of the subject Will as in the instant case. Therefore, we are not in respectful agreement with the judgments in P. Malliga’s case(P. Malliga v. P. Kumaran, 2022 (2) LW 393) andAkkinirajan’s case (Akkinirajan Vs. Maheswari, 2023 [1] LW 72) following the ratio laid down by the Hon’ble Supreme Court in Jagdish Chand Sharma’s case. On the contrary, we approve the ratio laid down in P. Radha Vs. Irudayadoss and Others reported in 2022 SCC Online Mad 886 and Vanjiammal and Others Vs. Vidya and Others in the order dtd. 21/4/2017 made in CRP.[PD] No.3659/2013.”

The same view is taken in Rajeev Gupta v. Prashant Garg, 2022-1 All LJ 435. The court held as under:

• “The admission were in the pleadings of the parties and therefore there was no requirement of proving the will in the present suit. Admittedly, the defendant Nos. 2 to 4/appellants have claimed their title through Ramesh Chand Garg who never disputed the validity of the will rather in the Original Suit No. 458 of 1992, he admitted its validity and therefore, the lower appellate court has rightly decreed the suit and held that the will was neither required to be proved in the present suit nor the filing of original will was necessary.”

Do General Provisions of S. 58 give way to Special Provisions of S. 68

Three views are possible:

• First: Requirement of calling at lest one witness to prove those documents that requires attestation, remains the same even in a case where the opposite party expressly admit the execution of the document in the written statement.
• Second: If the Will is (even impliedly) admitted, Sec. 68 need not be invoked.
• Third: If only the Will is expressly admitted, then only there will be alleviation of burden laid down in Sec. 68.

In the light of the Apex Court decision in Ramesh Verma v. Rajesh Saxena, 2017-1 SCC 257, _{(that the position – as to proof of documents requires attestation – remains the same even in a case where the opposite party does not specifically deny the execution of the document in the written statement)} it appears that the second view stated above (taken in Thayyullathil Kunhikannan v. Thayyullathil Kalliani, AIR 1990 Ker 226) is not sustainable.

But, the proposition of law in the third view above, applied in Boomathi v. Murugesan (supra), and other decisions _{(that the position – as to proof of documents requires attestation – will be different if the Will is “categorically admitted“),} sounds good.

Authoritative Judicial Pronouncement is yet to be Arrived

It is also pertinent to note that the Kerala High Court, in Sarada v. Radhamani (supra), pointed out that the general provisions of Sect. 58 of the Evidence Act has ‘to give way to the special provisions’ of Sec. 68 of the Act; and it was remarked that there was no distinction between an ‘admitted Will’ and a ‘disputed Will’ as to the mode of proof.

It appears that the placing the doctrine of ‘specific provisions override general provisions‘ is rational; for, the following words in Sec. 68 places a ‘non-obstante clause’ –

• “it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution”.

However, it will also be a forceful argument if one says that a section in the Evidence Act cannot be protected from certain fundamental principles of the Evidence Act which include ‘best evidence rule’, ‘admitted facts need not be proved’ etc., unless strong persuasive indications are laid down in the provision concerned. (It is also noteworthy that Sec. 68 does not proceed with a non-obstante clause.) In any event, the scheme of the Evidence Act shows that Chapter III (the beginning Chapter of Part II) which deals with “Facts Need Not be Proved”, is meant to govern the succeeding chapters including the Chapter V that deals with ‘Documentary Evidence’ wherein Sec. 68 is included.

It is also significant – Sec. 58 says that ‘Admitted facts need not be proved’; and Sec. 68 speaks as to “Proof of execution of document required by law to be attested” and that the attesting witness is called “for the purpose of proving its execution”. That is, the question of ‘proof’ under Sec. 68 does not arise if ‘execution of document’ has already been admitted by the other side.

• Note: Proviso to Sec. 58 enables the court to require proof, despite the admission of the other side, if it finds proper. Proviso to Sec. 58 reads as under:
• “Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.”

Therefore, an authoritative judicial pronouncement is yet to be arrived, taking note of various potential contentions in this regard.

PART II – A Will has to be proved like any other document

In Vrindavanibai Sambhaji Mane v. Ramachandra Vithal Ganeshkar, AIR 1995 SC 2086, 1995-5 SCC 215, our Apex Court held as under:

• “There is also a large body of case law about what are suspicious circumstances surrounding the execution of a Will which require the propounder to explain them to the satisfaction of the Court before the Will can be accepted as genuine. A Will has to be proved like any other document except for the fact that it has to be proved after the death of the testator. Hence, the person executing the document is not there to give testimony. The propounder, in the absence of any suspicious circumstances surrounding the execution of the Will, is required to prove the testamentary capacity and the signature of the testator. Some of the suspicious circumstances of which the Court has taken note are
• (1) The propounder taking a prominent part in the execution of a Will which confers substantial benefits on him;
• (2) Shaky signature;
• (3) A feeble mind which is likely to be influenced;
• (4) Unfair and unjust disposal of property. Suffice it to say that no such circumstances are present here.”

Presumption (by itself) not sufficient to Prove a Will

The Presumptions available on a document cannot be called for (unless Sec. 71 can be invoked, as stated below) as regards a Will, in view of Sec. 68 and 69 of the Evidence Act.

• That is, Certificate of Registering Officer (endorsement) is not by itself a proof of the registered Will having been duly executed and attested.
• The presumption, under Sect. 90, Evidence Act, as to regularity for documents having more than 30 years of age also cannot be imported in proof Wills (unless Sec. 71 can be invoked, as stated below).

Proof of Will – Regn. Certificate u/s. 60 – by itself, NOT Sufficient

Registration of a will or codicil, by itself, will not lead to a presumption as to correctness or regularity of attestation. Where in the facts and circumstances of a given case, if the Registrar of Deeds, by his statement before the court, satisfies the requirement as to attestation by an attesting witness, his evidence would be liable to be appreciated and evaluated like the testimony of any other attesting witness.

The Apex Court observed in Bhagat Ram v. Suresh, AIR 2004 SC 43 (R.C. Lahoti, J.) as under:

• “The certificate of registration under Section 60 of the Registration Act, 1908 raises a presumption under Section 114 illustration (e) of the Evidence Act that he had regularly performed his duty and therefore the facts spelled out by the endorsements made under Sections 58 and 59 of the Registration Act may be presumed to be correct without formal proof thereof. The duties discharged by the registering officer do not include attestation or verification of attestation of will as required by the rules enacted by Section 63 of the Succession Act. An endorsement by registering officer is not by itself a proof of the will having been duly executed and attested. …”

The Kerala High Court held in Mariyadas v. Benjamin, ILR 2014-4 Ker 471, as under:

• “If a Will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. But the mere fact that a Will is registered Will it will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. The bald fact of registration is insufficient, when there are other circumstances creating suspicion on the execution of the document.”

In Ashutosh Samanta v. Ranjan Bala Dasi, AIR 2023 SC 1422, the Supreme Court observed that Wills (which have to be proved in terms of Section 63(c) of the Succession Act 1925 and Section 68 of the Evidence Act, 1872) cannot be proved, only on the basis of their age and the presumption under Sec. 90 which provides for presumption as to regularity of documents having the age more than 30 years. (And it was held, following the earlier decisions on Sec. 71 of the Evidence Act, that in proper cases this enabling provision (Sec. 71) can be invoked, as detailed below.)

In M.B. Ramesh v. K.M. Veeraje Urs, (2013) 7 SCC 490, it is pointed out as under:

• “.. . As held by this Court in Bharpur Singh v. Shamsher Singh reported in 2009 (3) SCC 687, a presumption regarding documents 30 years old does not apply to a will. A will has to be proved in terms of Section 63(c) of the Succession Act read with Section 68 of the Evidence Act. That takes us to the crucial issue involved in the present case, viz. with respect to the validity and proving of the concerned will. A Will, has to be executed in the manner required by Section 63 of the Succession Act. Section 68 of the Evidence Act requires the will to be proved by examining at least one attesting witness.”

Effect of Not putting Signatures of the testator at the End

In Bishan Devi Khanna v. Pirthi Singh Dhillon, AIR  1963 P&H 66 (Tek Chand, J.), though the testator had signed his name in three places in the will, it did not bear the signatures of the testator at the end. A contention was raised on the execution of the will pointing out that Sec. 63 (b) Succession act had been contravened. The contention, that the will was inchoate, was rejected referring following decisions-

• In The Goods of R. Porthouse, ILR 24 Cal 784. The will herein was in a printed form. It was omitted to insert the testator’s name and description at the head of the document and to append his signature therefor. He had, however, written his name in the attestation clause and completed the disposition clause bequeathing all his property to his wife and appointing her sole executrix. It was held that this was sufficient.
• Amarendra Nath v. Kashi Nath, ILR 27 Cal 169. The testator had admitted to the attesting witnesses that the paper which they were attesting was his last will. This was considered a sufficient acknowledgment of testator’s signature to his will even though the witnesses did not see him sign it or observed any signature to the paper which they had attested.
• In The Goods of, Casmore, (1869) LR 1 P and D 653. This decision was referred for the proposition that a Will would not be rendered invalid if the Court was satisfied that the deceased intended execution of the Will, though he had signed in the attestation clause.
• In The Goods of Mann, 1942 P. 146, the testatrix did not place any signature on the document. But, the probate was decreed and the signature on the envelope was accepted as the signature on the will.

Read Blog: 30 Years Old Documents and Presumption of Truth of Contents, under Sec. 90 Evidence Act

If Original Will Lost, Secondary Evidence Admissible

In Dhanpat v. Sheo Ram (2020) 16 SCC 209) certified copy of the registered will was produced saying that the original was lost. The Supreme Court observed as under:

• “There is no cross-examination of any of the witnesses of the defendants in respect of loss of original will. Section 65 of the Evidence Act permits secondary evidence of existence, condition, or contents of a document including the cases where the original has been destroyed or lost. The plaintiff had admitted the execution of the will though it was alleged to be the result of fraud and misrepresentation. The execution of the will was not disputed by the plaintiff but only proof of the will was the subject matter in the suit. Therefore, once the evidence of the defendants is that the original will was lost and certified copy is produced, the defendants have made out sufficient grounds for leading of secondary evidence”.

The Apex Court further observed that there was no need for an application for submitting the secondary evidence.

PART III – How to Prove a Will, if NO Proof Possible under Sec. 68 or 69 Evid. Act?

There is no specific provision in the Evidence Act as to proving a Will, where-

• (a) the attesting witnesses to the Will are dead or not available for examination,
• and
• (b) no evidence is available (reasonably not obtainable) to show that the Will was attested (say, 75 years back) in the handwriting of the attesting witnesses, as provided under Sec. 69 Evidence Act?

Sec. 71 of the Evidence Act

Sec. 71 of the Evidence Act reads as under:

• 71. Proof when attesting witness denies the execution – If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.”

If the attesting witness called for proving the execution of a document turns hostile, though the ‘best evidence rule’ requires the evidence of the other attesting witness, if he is alive, it is not mandated in Sec. 71 (See contra view – the other witness must be examined – in: Vishnu Ramkrishna Wani v. Nathu Vithal Wani, (1949) 51 BOMLR 245, MC Chagla & Gajendragadkar).

It must be noticed that Sec. 71, as such, cannot be applied when Wills cannot be proved in terms of Sec. 68 and 69; because, Sec. 71 deals with another situation; i.e., ‘witness denies or does not recollect the execution of the document’. (But, the principles in Sec. 71 can be applied in such situations, it being enacted on the rules as to justice, equity and good conscience.)

Therefore, if the execution and attestation of a Will cannot be proved as provided under Sect. 68  and 69 Evidence Act, it is legitimate to say that the principles in the doctrine of ‘Proving Execution by Other Evidence’ in Sec. 71 of the Evidence Act can be invoked to prove the Will – that is the execution by the testator (and not the attestation as provided in Sec. 69, the enabling provision).

In Janki Narayan Bhoir v. Narayan Namdeo Kadam, 2003 (2) SCC 91, it is observed, as regards Sec. 71, as under:

• “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 any other means of proving due execution by “other evidence” as well. At the same time Section 71 cannot be read so as to absolve a party of his obligation under Section 68 read with Section 63 of the Act and liberally allow him, at his will or choice to make available or not a necessary witness otherwise available and amenable to the jurisdiction of the court concerned and confer a premium upon his omission or lapse, to enable him to give a go bye to the mandate of law relating to proof of execution of a will.”
• In Janki Narayan Bhoir v. Narayan Namdeo Kadam, our Apex Court not only did not apply Sec. 71, but it found that the Will was not proved (in that case) for not examining the attesting-witness who was available for examination. (Therefore the observations as to Sec. 71 stands as obiter.)

Sec. 71 Misapplied

In M.B. Ramesh v. K.M. Veeraje Urs, (2013) 7 SCC 490, it was contended that the evidence of the attesting witness examined in the court was “silent on the issue” as to whether the executant of the will executed the will in the presence of other witness, and whether the other witness also signed as attesting witness in the presence of the executant. Answering the argument, it is held as under:

• “.. . . Section 71 of the Evidence Act is another connected section “which is permissive and an enabling section permitting a party to lead other evidence in certain circumstances” as observed by this Court in paragraph 11 of Janki Narayan Bhoir v. Narayan Namdeo Kadam reported in 2003 (2) SCC 91 and in a way reduces the rigour of the mandatory provision of Section 68. As held in that judgment Section 71 is meant to lend assistance and come to the rescue of a party who had done his best, but would otherwise be let down if other means of proving due execution by other evidence are not permitted.” (This portion is quoted in: Ashutosh Samanta v. Ranjan Bala Dasi, AIR 2023 SC 1422.)
• Note:
• 1. The observation in Janki Narayan Bhoir v. Narayan Namdeo Kadam, 2003 (2) SCC 91, as regards Sec. 71 (that is, 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 etc.) is seen misapplied (for three counts) in M.B. Ramesh v. K.M. Veeraje Urs, (2013) 7 SCC 490 –
  • (i) It was not observed in Janki Narayan Bhoir v. Narayan Namdeo Kadam that Sec. 71 could be applied in any situation other than what is stated in Sec. 71;
  • (ii) the observation as regards Sec. 71 in Janki Narayan Bhoir is obiter dictum‘; and
  • (iii) Sec. 71 being deals with another situation, Sec. 71, as such, could not have been applied (though its principles could be).
• 2. Going by Sec. 68, it appears that there is no requirement for proving attestation made by “both” attesting witnesses. Therefore, there was no “deficiency” (as observed in this decision and in Janki Narayan Bhoir) in the statement of a witness for the “omission” to depose that the signature of the testator on the Will “was placed in the presence of” the other attesting witness.
• That is, even if the witness was “silent on the issue” as to whether the executant executed the will in the presence of the other witness, and whether the other witness also signed as attesting witness in the presence of the executant, they could not have been raised as “deficiency” (as observed in this decision and in Janki Narayan Bhoir).

When a Will can be Proved on the basis of Presumptions alone ?

As shown above, Sec. 71 (which provides for ‘other evidence’) applies in two circumstances-

• 1. If the attesting witness of the document denies or does not recollect the execution of the document (as stated in Sec. 71 itself).
• 2. If the attestation of the document cannot be proved as provided under Sect. 68  and 69 Evidence Act (principles in Sec. 71 is applied).

“Other evidence” in Sec. 71 includes all ‘presumptions’ in the Evidence Act.

Therefore, the propounder of a will is free to rely on ‘presumption on registration’ and presumption available under Sec. 90 as regards 30 years old documents (so also other presumptions, including Sec. 114), when Sec. 71 can be invoked.

• It must be noticed that the presumptions under Sec. 90 and 114 are rebuttable presumptions; and therefore, the opposite party can show – adducing evidence sufficient to displace the presumption – that it is not proper to rely on presumptions.

PART IV – Construction/Interpretation of a Will

Relevant Provisions in interpretation of a Will

1. Sec. 74 of the Indian Succession Act, 1925

• 74. Wording of will — It is not necessary that any technical words or terms of art be used in a Will, but only that the wording be such that the intentions of the testator can be known therefrom.

2. Sec. 100 of the Evidence Act

• 100. Saving of provisions of Indian Succession Act relating to wills -Nothing in this Chapter contained shall be taken to affect any of the provisions of the Indian Succession Act, 1865 (10 of 1865) as to the construction of wills

Cardinal principles in interpretation of a Will are the following:

• (1) Ascertain the intention of the testator from the words used; the surrounding circumstances can be considered: but only for finding out the intended meaning of the wordsused. (Ram Gopal v. ;Nand Lal, AIR 1951 SC 139; Navneet Lal v. Gokul, AIR 1976 SC 794: Gnanambal Ammal v. T. Raju Ayyar (1950 SCR 949, 955 : AIR 1951 SC 103)
• (2) In construing the language of the will the court is entitled to put itself into the testator’s armchair (Venkata Narasimha v. Parthasarthy, 41 IA 51: 15 Bom LR 1010; Gnanambal Ammal v. T. Raju Aiyar, AIR 1951 SC 103,)
• (3) The true intention of the testator has to be gathered by reading the will as a whole. No clause shall be ignored as redundant or contradictory. (Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer (1953 SCR 232, 240 : AIR 1953 SC 7; Gnanambal Ammal v. T. Raju Aiyar, AIR 1951 SC 103; Ramachandra Shenoy v. Mrs. Hilda Brite, (1964) 2 SCR 722, 735 : AIR 1964 SC 1323; Navneet Lal v. Gokul, AIR 1976 SC 794)
• (4) If there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will. (Ramachandra Shenoy v. Mrs. Hilda Brite, (1964) 2 SCR 722, 735 : AIR 1964 SC 1323; )
•  (5) The court must accept, if possible, such construction as would give to every expression some effect rather than that which would render any of the expressions inoperative. (Navneet Lal v. Gokul, AIR 1976 SC 794)
• (6) Where two reasonable constructions possible and one would lead to intestacy, that should be discarded and the construction that in favour of Will shall be accepted. (Pearey Lal v. Rameshwar Das, 1963 Supp 2 SCR 834: AIR 1963 SC 1703)
• (7) The meaning of every word in an Indian will must always depend upon the setting in which it is placed, the subject to which it is related, and the locality of the testator from which it may receive its true shade of meaning. (Sasiman Chowdhurain v. Shib Narayan Chowdhury,49 IA 25, 35 : 66 IC 193 : 24 Bom LR 576; Musammat Surajmani v. Rahi Nath Ojha, 35 IA 17 : ILR 30 All 84 : 10 Bom LR 59; Navneet Lal v. Gokul, AIR 1976 SC 794)

In Gnanambal Ammal v. T. Raju Aiyar, AIR 1951 SC 103, BK Mukherjea, J., held as under:

• “The cardinal maxim to be observed by courts in construing a will is to endeavour to ascertain the intentions of the testator. This intention has to be gathered primarily from the language of the document which is to be read as a whole without indulging in any conjecture or speculation as to what the testator would have done if he had been better informed or better advised. In construing the language of the will as the Privy Council observed in Venkata Narasimha v. Parthasarathy, 42 I.A. 51 at p.70.
  • ‘The courts are entitled and bound to bear in mind other matters than merely the words used. They must consider the surrounding circumstances, the position of the testator, ‘his family relationship, the probability that he would use words in a particular sense, and many other things which are often summed up in the somewhat picturesque figure ‘The court is entitled to put itself into the testator’s armchair’ …… But all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document. So, soon as the construction is settled, the duty of the court is to carry out the intentions as expressed, and none other. The court is in no case justified in adding to testamentary dispositions…… In all cases it must loyally carry out the will as properly construed, and this duty is universal, and is true alike of wills of every nationality and every religion or rank of life.’
• A question is sometimes raised as to whether in construing a will the court should lean against intestacy. The desire to avoid intestacy was considered by the Privy Council in the case referred to above as a rule based on English necessity and English habits of thought which should not necessarily bind an Indian court. It seems that a presumption against intestacy may be raised if it is justified by the context of the document or the surrounding circumstances; But it can be invoked only when there is undoubted ambiguity in ascertainment of the intentions of the testator. As Lord Justice Romer observed in Re Edwards; Jones v. Jones, [1906]1 Ch. 570 at p. 574:
  • ‘It cannot be that merely with a view to avoiding intestacy you are to do otherwise than construe plain words according to their plain meaning’.”

In Bhura v. Kashi Ram, AIR 1994 SC 1202:  (1994) 2 SCC 111, it is observed as under:

• “It is settled law that the courts must make all efforts to determine the real intention of the testator by reading the will as a whole and giving effect to the intentions of the testator. Construction, which would advance the intention of the testator has to be preferred and as far as possible effect is required to be given to every disposition contained in the will, unless the law prevents such effect being given to it.”

See – How to Write a Will? Requirements of a Valid Will

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END NOTE I – Presumptions on REGISTERED Documents

Two presumptions arise from a Registered deed –

• 1. It is VALIDLY EXECUTED.
• 2. Its contents are GENUINENE/TRUE.

There is Presumption on a Registered Document – “It is VALIDLY EXECUTED”; that is, Executed in accordance with Law, or it is a Genuine Transaction.

• Sec. 35, Registration Act, 1908 says that the Registrar allows registration of a document (i) if only he is satisfied as to the identity of the person who executes the document, and (ii) if the executant admits the execution of the document.
• Presumptions can be invoked in view of the Sec. 58 , 59 and 60 (certificate) of the Registration Act. The presumption of regularity of official acts in Illustration (e) of Section 114 of the Evidence is also attached to a registered deed.
• There is a presumption – registered document is validly executed –
  • Prem Singh v. Birbal, AIR 2006 SC 3608;
  • Abdul Rahim v. Abdul Zabar, AIR 2010 SC 211;
  • Jamila Begum v. Shami Mohd., AIR 2019 SC 72;
  • Manik Majumder v. Dipak Kumar Saha, AIR  2023 SC 506.
• A registered document carries with it a presumption that it was executed in accordance with law – Bellachi v. Pakeeran, AIR 2009 SC 3293.

In Shiv Ram v. Shiv Charan Singh, AIR 1964 Raj 126, it is observed as under

• “Where Sec. 35  properly comes into play, an entry made by a public servant in any public or official book in the discharge of his official duty becomes relevant by itself, and no other proof of such entry is required as a matter of law by our Evidence Act, but this, does not exclude the possibility that such an entry may become admissible otherwise if it is properly proved to have been made by a person ordinarily competent to make it.” (Quoted in Mayadhar Nayak vs Sub-Divisional Officer, Jajpur, AIR 1982 Ori 221).

Endorsements Under Sec. 58 of the Registration Act

Under Sec. 58 of the Registration Act the Registrar shall endorse the following particulars on every document admitted to registration:

1. the date, hour and place of presentation of the document for registration :
2. the signature and addition of every person admitting the execution of the document, and, if such execution has been admitted by the representative, assign or agent of any person, the signature and addition of such representative, assign or agent;
3. the signature and addition of every person examined in reference to such document under any or the provisions of this Act, and
4. any payment of money or delivery of goods made in the presence of the registering officer in reference to the execution of the document, and any admission of receipt of consideration, in whole or in part, made in his presence in reference to such execution.

Such particulars as are referred to in Sections 52 and 58 of the Registration Act are required to be endorsed by Registrar along with his signature and date on document under Sec. 59 and then certified under Section 60. A presumption by reference to Section 114 [Illustration (e)] of the Evidence Act shall arise to the effect that the events contained in the endorsement of registration, were regularly and duly performed and are correctly recorded. … [See: Kunwar Surendra Bahadur Singh v. Thakur Behari Singh, AIR 1989 PC 117].

Sec. 60, Regn. Certificate

Sec. 35 and 60, Registration Act, 1908 read as under:

• “35. Procedure on admission and denial of execution respectively—(1) (a) If all the persons executing the document appear personally before the registering officer and are personally known to him, or if he be otherwise satisfied that they are the person they represent themselves to be, and if they all admit the execution of the document, or ….”
• 60. Certificate of registration – (1) After such of the provisions of sections 34, 35, 58 and 59 as apply to any document presented for registration have been complied with, the registering officer shall endorse thereon a certificate containing the word “registered”, together with the number and page of the book in which the document has been copied.
• (2) Such certificate shall be signed, sealed and dated by the registering officer, and shall then be admissible for the purpose of proving that the document has been duly registered in manner provided by this Act, and that the facts mentioned in the endorsement, referred to in section 59 have occurred as therein mentioned.”

Regn. Certificate, Evidence for Execution; Can be a Mode of Proof u/s. 67

The certificate endorsed on a registered deed by the registering officer is a relevant piece of evidence for proving its execution – Piara v. Fatnu, AIR 1929 Lah 711.

In Kunhamina Umma v. Special Tahsildar, AIR 1977 Ker 41, the Kerala High Court observed that the facts required to be proved under Section 67 Evid. Act could be proved by any kind of evidence, and there was nothing in the section to indicate that the evidence furnished by the registration certificate by virtue of Sub-section (2) of Section 60 of the Registration Act and by the presumption in Illustration (e) of Section 114 of the Evidence Act, were to be excluded. It is held as under:

• “The Privy Council said in Gangamoy Debi v. Troilukhya Nath  (1906) 33 Ind App 60 = ILR 33 Cal 537 (PC)–‘The registration is a solemn act, to be performed in the presence of a competent official appointed to act as registrar, whose duty it is to attend the parties during the registration and see that the proper persons are present and are competent to act, and are identified to his satisfaction; and all things done before him in his official capacity and verified by his signature will be presumed to be duly and in order‘.
• 15. On the strength of this observation of the Privy Council and on a consideration of Section 60 of the Registration Act, the Lahore High Court held in Piara v. Fatnu (AIR 1929 Lah 711) that the certificate endorsed on a registered deed by the registering officer is a relevant piece of evidence for proving its execution. … …..
• 19. The question has been considered in depth by Justice Raman Nair (as he then was) in Sumathi Amma v. Kunjuleskhmi Amma (1964 Ker LT 945). The learned Judge observed (at pages 946 and 947) :
  • “…  It (Section 67 Evidence Act) only says that facts have to be proved, and, unlike Section 68, does not prescribe any particular mode of proof. The facts required to be proved under Section 67 can be proved by any kind of evidence, and there is nothing in the section to indicate that the evidence furnished by the registration certificate by virtue of Sub-section (2) of Section 60 of the Registration Act and by the presumption in Illustration (e) of Section 114 of the Evidence Act, is to be excluded.’
• We have no hesitation in endorsing the view of the learned Judge as laying down the correct law on the question if we may say so with respect.”

Registered Deeds – Presumption on Genuineness of Transaction

It is held in Prem Singh v. Birbal, AIR 2006 SC 3608 (SB Sinha,J.), as under:

• “52. It is well-settled law that there is a presumption of a registered document being validly executed. A registered document would, therefore, prima facie, be valid in law. The onus of proof, thus, would be on a person who questions the same.”

Prem Singh v. Birbal is followed in –

• Manik Majumder v. Dipak Kumar Saha, AIR  2023 SC 506;
• Rattan Singh v. Nirmal Gill, AIR  2021 SC 899;

• Jamila Begum v. Shami Mohd., AIR  2019 SC 72;
• Vishwanath Bapurao Sabale v. Shalinibai Nagappa Sabale, (2009) 12 SCC 101.

In Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jajoo, (SB Sinha,J.), 2009-5 SCC 713, it is held as under:

• “13. The deed of sale dated 29.6.1978 was a registered one. It, therefore, carries a presumption that the transaction was a  genuine one…..
• 15…. The deed of sale being a registered one and apparently containing stipulations of transfer of right, title and interest by the vendor in favour of the vendee, the onus of proof was upon the defendant to show that the said deed was, in fact, not executed or otherwise does not reflect the true nature of transaction..”

The Apex Court observed in Jamila Begum v. Shami Mohd., AIR 2019 SC 72, as under: 

• “A registered document carries with it a presumption that it was validly executed. It is for the party challenging the genuineness of the transaction to show that the transaction is not valid in law. In Prem Singh and others v. Birbel and others (2006) 5 SCC 353, it was held as under:
• “27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption.” “

In Abdul Rahim v. Abdul Zabar, AIR 2010 SC 211 (SB Sinha,J.), it is held as under:

• “14. … A registered document carries with it a presumption that it was validly executed. It is for the party questioning the genuineness of the transaction to show that in law the transaction was not valid.”

In Bellachi v. Pakeeran, AIR 2009 SC 3293 (SB Sinha,J.), it is a observed that a registered document carries with it a presumption that it was executed in accordance with law.

In Ishwar Dass Jain v. Sohan Lal, (2000) 1 SCC 434, it is held that a registered document is presumed to be valid unless the presumption thereof is rebutted by strong evidence to the contrary.

Presumption of regularity of official acts would be extended to registration of a document by a sub-registrar as held in Jugraj Singh v. Jaswant Singh, 1970 (2) SCC 386. The sub-registrar would proceed with the registration only on satisfying himself as to the fact that the person who was executing the document was the proper person.

Presumption of Correctness Attached to Endorsements in a Registered Deed

In the split-verdict in Majumder v. Dipak Kumar Saha, AIR 2023 SC 506, BV Nagaratna, J., held as under:

• “18. … The presumption of correctness attached to endorsement made by the Sub-Registrar is in view of the provisions of Sections 58, 59 and 60 of the Registration Act. This presumption can be rebutted only by strong evidence to the contrary.”

BV Nagaratna, J. referred the following decisions-

• Ishwar Dass Jain v. Sohan Lal, (2000) 1 SCC 434 (a registered document is presumed to be valid).
• Chottey Lal v. The Collector of Moradabad,  AIR 1922 PC 279 (presumption of validity of a power of attorney which formed the basis of a registered deed; the sub-registrar being accepted the document for registration, it is prima-facie evidence that the conditions have been satisfied).
• Jugraj Singh v. Jaswant Singh, 1970 (2) SCC 386 (presumption of regularity of official acts of sub-registrar).
• Rattan Singh v. Nirmal Gill, AIR 2021 SC 899 (presumption of validity of a general power of attorney and consequently of the sale deed executed – especially of a 30-year old document).
• Prem Singh v. Birbal , (2006) 5 SCC 353 (when such a presumption arises, the onus would be on a person who challenges such presumption, to successfully rebut it).

The facts spelled out by the endorsements made under Sections 58 and 59 of the Registration Act may be presumed to be correct without formal proof thereof – Bhagat Ram v. Suresh, AIR 2004 SC 43.

In Sulender Singh v. Pritam, 2013-3 HLR 1443, it is held by the Himachal Pradesh High Court that there was a presumption of correctness to the endorsement/ certificate issued by the Sub-Registrar at the time or registration of gift deed (Rewat Ram Sharma versus Munshi Ram, Latest HLJ 2002 (HP) 165) and that the onus to rebut the presumption on a registered deed was heavily on the plaintiff.

END NOTE II – Presumptions on 30 Years Old Documents

Sec. 90 Evidence Act reads as under:

• “90. Presumption as to documents thirty years old:
• Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person’s handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.
• Explanation.—Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable.”
• This Explanation applies also to section 81. 

Sec. 90 speaks about two things:

• 1. a document purports to be in the handwriting of any particular person
• 2. a document purports to be executed or attested

The presumption spoken of in Sec. 90 is the following:

• handwriting – in that person’s handwriting
• executed or attested – duly executed and attested.

It was a matter of controversy whether truth or genuineness can be attached to the 30-year-old documents (though not specifically stated in Sec. 90).

Genuineness (Not Truth of Contents) attached to 30-year-old Documents

Under Sec. 90, Not Truth of Contents, but, only presumption of Genuineness of a document (ie. existence or handwriting), is drawn.

In Lakhi Baruah v. Padma Kanta Kalita, (1996) 8 SCC 357, AIR 1996 SC 1253, with regard to admissibility in evidence of thirty years old documents produced from proper custody, it was observed as under:

• “15. Section 90 of the Evidence Act, 1872 is founded on necessity and convenience because it is extremely difficult and sometimes not possible to lead evidence to prove handwriting, signature  or execution of old documents after lapse of thirty years. In order to obviate such difficulties or improbabilities to prove execution of an old document, Section 90 has been incorporated in the Evidence Act, 1872 which does away with the strict rule of proof of private documents. Presumption of genuineness may be raised if the documents in question is produced from proper custody. It is, however, the discretion of the court to accept the presumption flowing from Section 90. There is, however, no manner of doubt that judicial discretion under Section 90 should not be exercised arbitrarily and not being informed by reasons.”

Read Blog: Proof of Documents & Objections To Admissibility – How & When?

Truth of contents have to be proved

In Union of India v. Ibrahim Uddin, (2012) 8 SCC 148, it was held as under:

• “Presumption under Section 90 of the Evidence Act in respect of 30 years’ old document coming from proper custody relates to the signature, execution and attestation of a document i.e. to its genuineness but it does not give rise to presumption of correctness of every statement contained in it. The contents of the document are true or it had been acted upon have to be proved like any other fact.”

Contents have to be proved

In Jhasketan Bhoi V. Krushna Bhoi, ILR 2018-2 Cuttack (Orissa) 440. It was held as under:

• “It is no-doubt clear that Section 90 of the Indian Evidence Act if any document is produced from proper custody which is executed 30 years back then the document can be proved by production from proper custody. But that does not mean that the contents of the documents are proved. The contents of the document have to be proved by cogent evidence.”

After reading Sec. 90, the High Court proceeded as under:

• “When a document is purportedly to be more than 30 years old, if it be produced from what the Court considers to be proper custody, it may be presumed
  • that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person’s handwriting, and
  • that it was duly executed and attested by the person by whom it purports to be executed and attested.
• Thirty year old document, produced from proper custody, not looking ex facie suspicious, presumption could be drawn in favour of proper execution of the document. It is not necessary that the signatures of the attesting witnesses or of the scribe be proved; if everything was proved there would be no need to presume anything. There can, however, be no presumption as to
  • who is the person, who executed the document was and
  • what authority he had to execute the document, and
  • whether he had the requisite authority, or
  • whether the contents of the document are true.
• In other words, the execution and attestation of the document is presumed, but the contents have to be proved by some way or other.”

The correct view on Sec. 90 had been expressed in Kunhamina Umma v. Special Tahsildar, AIR 1977 Ker 41, wherein it was observed that this was a matter with the discretion of the court. It also referred to Sec. 114 of the Evidence act. It is held as under:

• “10. The true scope of Sec. 90 of the Evidence Act is that the section does away with the strict rules of proof which are enforced in the case of private documents, by giving rise to a presumption of genuineness with regard to documents reaching a certain age. If private documents not less than thirty years old are produced from proper custody, and are on their face free from suspicion, the court may presume that they have been signed or written by the person whose signatures they bear or in whose handwriting they purport to be, and that they have been duly attested and executed, if they purport so to be. In other words, documents thirty years old prove themselves–see Sirkar on Evidence 12th Edn. page 727.
• The section deals with the admissibility of such old documents without proof in the usual manner, but the credit to be given to them depends on the discretion of the court exercised in a judicial manner and the particular circumstances of each case. No doubt, the presumption is permissive and according to the circumstances of each case the court may or may not raise it. It has also been held in certain cases that a sound disposing mind can be presumed under Sec. 90, This is so ‘because of the expression ‘duly executed’in the section. The word duly has to be taken to mean execution by a person legally competent to execute the document–see (1) Kottayya v. Karancheti– AIR 1930 Mad 744 (2) Munnalal v. Kshibai — AIR 1947 PC 15; (3) Venkatarama v Bhaskar Rao — AIR 1962 Andh Pra 29.
• This presumption is fortified by Sec. 114 Evidence Act. Again it may be made clear that it is in the discretion of the court to draw the presumption or not.”

“Proper Custody”

As regards the ‘proper custody’ in Sec. 90 Evidence Act it is observed in Cheedella Padmavathi v. Cheedella Lakshminarasimha Rao, 2015(5) ALT 634, as under:

• “The proper custody is in the custody of a person, who might be reasonably and naturally be expected to have possession of them.” 

In Rangaswami v. T.V. Krishnan, 2011-1 CC 832, it is observed that ‘proper custody means custody of an individual connected with deed and its possession does not excite any fraud or suspicion’.

END NOTE III – Proof of TRUTH, Invoking Presumptions

S. 114 Permits Presumptions on truth & due execution; Both are Independent

Presumptions under Sec. 114 can be on due execution of a document or truth of its contents. Both can be presumed under Sec. 114. And, both these presumptions are independent also. Presumption as to ‘truth‘ of Contents is dealt with in the (main) section. Illustrations dealt with (mainly) presumptions on due execution.

‘Regularity’ in Illus. (e) is not exactly presumption as to ‘truth‘ of Contents

Illustration (e) of Sec. 114, Evd. Act, demonstrates that presumption as to ‘regularity’ can be invoked on Judicial and official acts, in proper cases. ‘Regularity’ in Illustration (e) is not exactly the presumption as to ‘correctness or truth‘.

For presumption on truth, we have to resort main section, Sec. 114

For such presumption, we have to resort the main section, Sec. 114 – that is, ‘common course of natural events’, ‘human conduct’, etc..

In Inder Singh v. S. Raghbir Singh, AIR 1978 P&H 98, it is observed as under:

• “The principle is that an official record, kept by a person, upon whom there is a public duty to make entries in it only after satisfying himself of the truth of those entries, is presumed to be correct. Such a document itself is evidence of the truth of its contents unless and until its falsity can be demonstrated by any of the various methods by which the evidentiary value of any public book, register or document may be attacked.”

Do Presumptions as to VALID EXECUTION Import TRUTH of Contents?

Under Sec. 114 of the Evidence Act, court can presume the existence of any fact.

The Indian Evidence Act does not specifically correlate “Truth of Contents“ or “correctness” with ‘presumption’. But, ‘any fact’ stated in Sec. 114 of the Evidence Act (Court may presume the existence of any fact) includes ‘Truth of Contents‘. As shown above, it is clear from the Stroud’s Legal Dictionary that presumption is a probable consequence drawn from facts as to the truth of a fact alleged. It is clear that, in presumption, the existence or truth of a fact, otherwise doubtful, is inferred from certain other proved facts. Here, the Court exercises a process of reasoning and reach a logical conclusion as the most probable position (See: St. of West Bengal Vs. Mir Mohammad Omar, AIR 2000 SC 2988).

In proper cases, the court can infer ‘truth’ (over and above) presumption as to VALID EXECUTION. Presumption as to VALID EXECUTION  & CORRECTNESS to registration, need not always lead to further Presumption as to ‘truth’ of contents.

• See: Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jajoo, (2009) 5 SCC 713.

Read Blog: Presumptions on Documents & Truth of Contents

Burden of Proof and Presumption

The party in whom the ‘burden of proof’ rests can rely on ‘registration certificate’ as proof and truth of the contents of the deed. Therefore, the certificate endorsed on a registered deed by the registering officer is a relevant piece of evidence for proving its execution (Piara v. Fatnu, AIR 1929 Lah 711).

As shown above, besides the presumption on a registered document that it is validly executed, there is also a presumption that the “transaction is a genuine one” (Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jajoo, 2009- 5 SCC 713; Jamila Begum v. Shami Mohd., AIR 2019 SC 72) . Thereby the onus of proof, thus, would be on a person who questions the same. And, there will be no requirement to “prove the truth of contents” as regards a Will; and, proof of its execution alone will be sufficient.

END NOTE IV – Construction of Wills

Sec. 100 of Evidence Act reads as under:

• 100. Saving of provisions of Indian Succession Act relating to wills.––Nothing in this Chapter contained shall be taken to affect any of the provisions of the Indian Succession Act, 1865 (10 of 1865) as to the construction of wills

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