Updated: Jul 19
Proof of attestation of one witness in his handwriting sufficient as proof in the instance of death of both attesting witnesses to a will- states Supreme Court.
July 18, 2020
The Supreme Court has held that in a situation where both the attesting witnesses to a will are dead, it is sufficient to prove that the attestation of one attesting witness is in his handwriting. This was held by the Honorable Court on Friday, 17th July, while delivering the judgment of the case V. Kalyanaswamy (D) By LRs v. L. Bakthavatsalam (D) By LRs (CIVIL APPEAL NOS. 1021-1026 OF 2013).
In the present case, an appeal was brought before the Supreme Court of India comprising of Justice Sanjay Kishan Kaul and Justice K.M. Joseph, after it was held by the High Court that the copy of deposition produced by one of the attesting witnesses to the Will did not establish the execution of the Will.
The issue before the Court was whether the law still mandates that when both the attesting witnesses are dead, then under Section 69 of the Evidence Act, the attestation as required under Section 63 of the Indian Succession Act i.e., attestation by the two witnesses has to be proved, or whether it is sufficient to prove the attestation made by one witness is in his handwriting.
With regard to the issue, it was observed by the SC that what has to be proved is to whether the attestation of one of the attesting witnesses is in his handwriting. It was held by the court that “…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 of attesting witness is in his handwriting.” The Court also observed that even though Section 68 of the Evidence Act contemplates the attestation of both the attesting witnesses to be proved, Section 69 of the Act do not require the same.