Legal Aspects Concerning the Proving of a ‘Will’: Section 63 of the Indian Succession
Act, 1925 read with Section 68 of the Indian Evidence Act, 1872
- Shivam Goel, LL.M. (WBNUJS)*
What is a ‘Will’?
A ‘Will’ is an instrument by which a person makes a disposition of his property to take effect
after his death and which is in its own nature ambulatory and revocable during his life. A
‘Will’ is an obstruction in the line of succession. Alternatively, ‘Will’ may be defined as a
continuous act of gift up to the moment of death. 1 In civil law, ‘Will’ is also known as
‘Testament’ or ‘Elogium’. Lord Penzance in the matter of Leimage v. Goodban2 held that, a
‘Will’ is an aggregate of a man’s testamentary intentions so far as they are manifested in
writing duly executed according to the requirements of the statute for time being in force. In
the absence of a statute, a ‘Will’ may be in any form, oral or in writing. A document can be
said to be a ‘Will’ only when it is executed with an intention to regulate succession after
death. ‘Varas Patra’ or nomination cannot be construed as a ‘Will’.3
Proving of ‘Will’:
In the matter of, Gaurdhouse v. Blackburn4, it was held that, a ‘Will’ that has been read over
to the testator in a proper manner, and the contents of which have been brought to the notice
of the testator before execution, must in the absence of fraud or coercion, be presumed to
have been approved by the testator. In view of the provisions of Section 63 of the Indian
Succession Act, 1925 (hereinafter referred to as ‘ISA’) read with Section 68 of the Indian
Evidence Act, 1872 (hereinafter referred to as ‘IEA’), ‘Will’ is required to be proved by
examining at least one attesting witness if he is alive.5 According to Section 63 of the ISA, a
Will needs to be attested by two or more witnesses, each of whom must have seen the testator
sign or affix his mark to the ‘Will’ and further, each of the witnesses to the ‘Will’ should
have signed the ‘Will’ with the requisite animus attestandi. Likewise, according to Section 68
of IEA, a document required by law to be attested has to be proved by calling for the purpose
of proving its execution at least one attesting witness.
1
Tagore v. Tagore, (1872) 9 Beng LR 377
2
LR 1 P&D 57
3
Gopal Vishnu Ghatnekar v. Madhukar Vishnu Ghatnekar, 1981 Bom CR 1010
4
(1866) LR 1 P&D 109
5
Rajinder Singh & Anr v. Subedar Hari Singh & Ors, AIR 2000 P&H 257
Electronic copy available at: https://ssrn.com/abstract=3133969
In the matter of Vesakha Singh v. Jat Singh6, it was held that, an obligation has been put by
law upon the propounder to show by cogent (and satisfactory) evidence that the ‘Will’ on
which the propounder relies was signed by the testator; and, the testator was in sound
disposing mind when he signed the ‘Will’; and, he understood the nature and effect of the
dispositions; and, he placed his signatures on the document of his own freewill (and accord),
without any force, coercion or undue influence.
According to the purport of Section 61 of the ISA, a ‘Will’ or any part of a ‘Will’, the making
of which has been caused by fraud or coercion, or by such importunity as takes away the free
agency of the testator, is void. However, persuasion and flattery is not forcible importunity.7
The burden of proving that fraud was played upon the testator in obtaining the execution of
the ‘Will’ is upon the person who alleges it.8 Similarly, the burden of proving that the ‘Will’
was executed under undue influence rests upon the party who alleges it.9
The onus probandi in each case lies upon the propounder, and the propounder has to
discharge it by satisfying the conscience of the court that the instrument propounded is the
last and final ‘Will’ of the testator and it was executed by the testator sans any force, coercion
or undue influence.10
In the matter of, Ajit Chandra Majumdar v. Akhil Chandra Majumdar11, it was held that there
is always good reason to presume that holographic ‘Will’ is a genuine ‘Will’ because the
mind of the testator in physically writing the ‘Will’ by himself is more apparent in a
holographic ‘Will’ than where his signatures alone appear on a typed script or on a script
already written by someone else. It is important to note that, a ‘Will’ on a printed form, with
the blanks filled in the handwriting of the deceased is not a holographic ‘Will’.
Manner in which the Propounder of ‘Will’ has to discharge the burden albeit the
proving of the ‘Will’:
In the matter of Girija Datt Singh v. Gangotri Datt Singh12, the Hon’ble Supreme Court of
India laid down the following three-point test in this regard: (i) The propounder of the ‘Will’
has to prove that the ‘Will’ was signed by the testator in the presence of two attesting
witnesses; (ii) The attesting witnesses should have seen the testator sign the ‘Will’ or else,
6
(1996) 114 PLR 45
7
Parvati v. Sheo, AIR 1926 Oudh 262
8
Prakash Narain Mishra v. D.D.C, Kanpur, 1984 ALJ 1028
9
Craig v. Lamoureux, 1920 AC 349
10
Barry v. Butlin, (1836) UKPC 9
11
AIR 1960 Cal 551
12
AIR 1955 SC 343
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the attesting witnesses should depose that they were been told by the testator that the ‘Will’ is
that of the testator and it is the testator who has signed the ‘Will’; and, (iii) It is not necessary
that both or all the attesting witnesses to the ‘Will’ must be examined to prove the ‘Will’,
rather, at least one attesting witness should be called to prove the due execution of the ‘Will’.
Similarly in the case of Janki Narayan Bhoir v. Narayan Namdeo Kadam13, the Hon’ble
Supreme Court of India held that, Section 68 of the IEA necessitates that a document which
is required by law to be attested shall not be used as evidence, until and unless, at least one
attesting witness to that document has been called in evidence for the purpose of proving its
execution. Thus, according to the mandate of Section 68 of the IEA, if there be an attesting
witness to a document, alive and capable of giving evidence, then that attesting witness
subject to the process of the court has to be necessarily examined before the document
required by law to be attested can be used as evidence.
In the case of Banga Bihara v. Baraja Kishore Nanda14, it was held that, 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. However, 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, unless its execution by whom-so-ever it purports to have been
executed is specifically denied.
Document being 30 Years Old:
Section 90 of the IEA provides that where any document, purporting or proved to be 30 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 case
of a document executed and attested, that it was duly executed and attested by the persons by
whom it purports to be executed and attested. In the matter of Bharpur Singh v. Shamsher15,
it was held that, 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 ISA read with Section 68 of the
IEA.
13
(2003) 2 SCC 91
14
(2007) 9 SCC 728
15
(2009) 3 SCC 687
3
‘Will’ was executed under ‘Suspicious Circumstances’:
Whether a particular ‘Will’ is surrounded by suspicious circumstances or not is a question of
fact and it depends upon the facts and circumstances of each case. 16 Where the execution of a
‘Will’ is attended by suspicious circumstances, the propounder has to explain these
circumstances and has to remove the suspicion of the court in order to satisfy the conscience
of the court. A shaky signature, a feeble mind, an unfair and unjust disposition of property,
the propounder himself taking a leading part in the making of the ‘Will’ under which he
receives substantial benefit, and interlineations, obliterations or alterations in the ‘Will’, are
all in the nature of circumstances which hoist suspicion about the execution of the ‘Will’.
Such suspicions cannot be removed by the mere assertion of the propounder that the ‘Will’
bears the signature of the testator or that the testator was in a sound and disposing state of
mind when the ‘Will’ was made, or that those like the wife and children of the testator who
would normally receive their due share in his estate were disinherited because the testator
might have had, his own reasons for excluding them. The presence of suspicious
circumstances makes the initial onus of proof heavier on the propounder of the ‘Will’ and
thus in cases where the circumstances attendant upon the execution of the ‘Will’ excite the
suspicion of the court, the propounder must remove all legitimate suspicion before the
document can be accepted as the last ‘Will’ of the testator.17
Excursus:
1. Section 63 of the ISA declares the substantive law regarding the execution of an
unprivileged ‘Will’ and it mandates that the testator has to sign or affix his mark in
the presence of two or more attesting witnesses, it being not necessary that the two
attesting witnesses should simultaneously be present to witness the execution of
the ‘Will’.
2. On a combined reading of Section 63 of the ISA and Section 68 of the IEA, it is clear
as daylight that a person propounding the ‘Will’ must prove that the ‘Will’ was duly
and validly executed, and this cannot be done by simply proving that the signature on
the ‘Will’ is that of the testator but by also proving that the attestations made on the
‘Will’ are in the manner (and form) as required by clause (c) of Section 63 of the ISA.
16
Joga Singh v. Samma Kaur, (1996) 1 Cur CC 641 (P&H)
17
Jaswant Kaur v. Amrit Kaur, (1977) 1 SCC 369
4
3. Section 68 of the IEA does not say that both (or all) the attesting witnesses must be
examined. However, at least one attesting witness has to be called to prove the due
execution of the ‘Will’ as envisaged in Section 63 of the ISA. Although Section 63 of
the ISA requires that a ‘Will’ has to be attested at least by two attesting witnesses, but,
Section 68 of the IEA provides that a document, which is required by law to be
attested, shall not be used as evidence until one attesting witness at least has been
examined for the purpose of proving its due execution, if such witness is alive and
capable of giving evidence and subject to the process of the court.
4. Section 68 of the IEA gives a concession to those who want to prove and establish a
‘Will’ in the court of law by examining only one attesting witness, although, the
‘Will’ has to be attested by at least two witnesses as is mandatorily required by
Section 63 of the ISA. What is significant to note is that, the sole attesting witness
who is examined to prove the ‘Will’ should be in a position to establish the due
execution of the ‘Will’. If the sole attesting witness can prove the due execution of the
‘Will’ in terms of clause (c) of Section 63 of the ISA then the rule of attestation by
two attesting witnesses as contemplated in Section 63 of the ISA shall stand fulfilled.
The sole attesting witness who is examined to prove the ‘Will’, in his evidence
has to satisfy the attestation of the ‘Will’ not only by him but also by the other
attesting witness, in order to prove that there was due execution of the ‘Will’. If
the sole attesting witness who is examined, besides his execution does not, in his
evidence satisfy the requirements of attestation of the ‘Will’ by the other attesting
witness, then, such an attestation falls short of the attestation of the ‘Will’ as required
by Section 63 (c) of the ISA, for a simple reason that the execution of the ‘Will’ does
not merely mean the signing of it by the testator but rather it means the fulfilling of all
the formalities contemplated under Section 63 of the ISA.18
5. Where one attesting witness examined to prove the ‘Will’ under Section 68 of the IEA
fails to prove the due execution of the ‘Will’, then, the other available attesting
witness has to be called to supplement the evidence of the erstwhile attesting witness
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 then there will be
deficiency in meeting the mandatory requirement of Section 68 of the IEA.
18
Jagdish Prasad v. State, FAO (OS) 355/2008, High Court of Delhi, Decision Dated: 03.03.2015 (Pradeep
Nandrajog & Pratibha Rani, JJ.)
5
6. Section 68 of the IEA mandates that if an attesting witness to a ‘Will’ is alive then
necessarily the ‘Will’ is to be proved by examining that attesting witness. However,
Section 68 of the IEA has no application where there are no attesting witnesses alive
or surviving.
7. Section 69 of the IEA comes into play when both (or all) the attesting witnesses to the
‘Will’ are dead (or cannot be found). Section 69 of the IEA states that, if both (or all)
the attesting witnesses to the ‘Will’ are dead (or cannot be found) then the ‘Will’ is to
be proved by proving that the attestation of at least one attesting witness to the ‘Will’
is in his handwriting, and that the signature of the testator on the ‘Will’ is in his own
handwriting.
8. In the case of Babu Singh & Ors v. Ram Sahay19, it was observed that, Section 69 of
the IEA would apply in a case where the attesting witness is either dead or out of the
jurisdiction of the court or kept out of the way by the adverse party or cannot be
traced despite diligent search. As per the mandate contained in Section 69 of the IEA
the ‘Will’ is to be proved by proving the handwriting of the testator and that those of
the attesting witnesses.
9. A ‘Will’ has to be executed in the manner required by Section 63 of the ISA. Section
68 of the IEA requires that a ‘Will’ has to be proved by examining at least one
attesting witness. Section 71 of the IEA is another connected section which in a way
reduces the rigours of the mandatory provision of Section 68 of the IEA. Section 71 is
meant to lend assistance and come to the rescue of a party which had done its best to
prove the due execution of the ‘Will’ but was let down by the attesting witnesses, who
either denied the execution of the ‘Will’ or failed to recollect the fact of execution of
the ‘Will’ by the testator.
10. Section 71 of the IEA provides that if the attesting witness denies or does not recollect
the execution of the document (‘Will’), its execution may be proved by other
evidence. Section 71 of the IEA is a sort of safeguard introduced by the legislature to
the mandatory provisions of Section 68 of the IEA, where it is not possible to prove
the execution of the ‘Will’ by calling the attesting witnesses, though alive. Section 71
of the IEA can only be requisitioned when the attesting witnesses who have been
called fail to prove the execution of the ‘Will’ by reason of either their denying their
19
(2008) 14 SCC 754
6
own signatures, or denying the signatures of the testator, or having no recollection as
to the execution of the document (‘Will’).
11. Section 71 of the IEA has no application when one attesting witness has failed to
prove the due execution of the ‘Will’ and the other attesting witnesses are available
who can prove the execution of the ‘Will’ if they are called.
12. In the case of Kunvarjeet Singh Khandpur v. Kirandeep Kaur & Ors20, it was held
that, the period of three years (Article 137 of the Limitation Act, 1963) for institution
of a petition for grant of probate commences from the point in time when the right to
apply for probate accrues to the petitioner. Similarly, if a revocation is sought of grant
of probate or letters of administration, the period of three years (Article 137 of the
Limitation Act, 1963) should commence, at least from the date when the probate is
granted, as once a probate is granted, the same operates in rem.21
13. As per Section 212(2) of the Indian Succession Act, 1925, a Hindu, Muhammadan,
Buddhist, Sikh, Jaina, Indian Christian or Parsi is not bound to apply for letters of
administration (probate). It is optional (and not mandatory) for the above stated
categories of persons to seek probate of ‘Will’.
20
(2008) 8 SCC 463
21
Maina Devi v. Rati Ram, FAO 225/2009, High Court of Delhi, Date of Decision: 30.11.2015 (Rajiv Shakdher,
J.)
