INTRODUCTION
I have had the privilege to hear the lecture of Mr.Nagamuthu,
Senior Advocate on ‘Execution and Proof of Will’. While concluding the speaker
raised an issue as to the applicability of Section 70 of the Evidence Act in
the case of Wills but left it to be decided by the Courts, avoiding to express any
concrete opinion of his own.
On my reading of the relevant provisions, there appears to be
no conflict or contradictions between the provisions of Section 68 and Section
70 of the Evidence as both operate on totally different situations. I would
like to place what I have understood on this issue.
WILL AND ITS EXECUTION
On the death of a person, his properties will be inherited by
his heirs in accordance with the personal law by which he was governed. However
an owner of the property can desire as to whom his property would go after his
death. Such owner can declare his desire through a document, known as Will.
A Will being a declaration of desire, it will come into
effect only after the death of the declarant and till such time, it will remain
only as a piece of paper. Hence there is no stamp duty payable on a Will and it
need not be registered and can be written on any blank paper.
The Indian Succession Act 1925, deals with the law relating
to Wills. Some of the provisions of this Act are not applicable to Hindus and
Mohammedans. However the law relating to the execution of Wills viz., Section
63 which is under consideration herein is applicable to all.
Section 63 of The Indian Succession Act’ 1925
Every testator, not being a soldier employed in an
expedition or engaged in actual warfare, 1[or an airman so
employed or engaged,] or a mariner at sea, shall execute his will according to
the following rules:--
(a)
The testator shall sign or shall affix his mark to the will, or it shall be
signed by some other person in his presence and by his direction.
(b)
The signature or mark of the testator, or the signature of the person signing
for him, shall be so placed that it shall appear that it was intended thereby
to give effect to the writing as a will.
(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.
Section 63 (a) and (b) speaks about how Will to be signed/
marked by the testator. Section 63 (c) speaks about how the will to be
attested.
Section 63(a) provides three options that the Will may either
be (i) singed by the testator or (ii) affixed by his mark or (iii) singed by
other person but under the direction of the testator and in his presence. In
the case of the execution of other documents viz., Gift and Mortgage the other
two options are absent, if we read the relevant provision of the Transfer of
Property Act.
May be these three options are intended to meet certain
urgent situations, where the testator left with not much time to live and not
being able to put his signature or mark, owning to physical disability.
Similarly Section 63(b) further takes care as to where such
signature/ mark to be placed and such specific stipulation is absent in the
provisions relating to Mortgage and Gift in the Transfer of Property Act. Such
specific stipulation for the Will is natural as such a Will is to speak from
the death of the testator and must not give room for any doubt as to its due
execution and the intention of the testator. The absence of such clear
stipulation in the Transfer of Property Act appears to be a conscious omission.
The provisions of Section 63(c) speaks about how a Will is to
be attested. There must be minimum two attesters and each attester must see the
testator signs the Will. If the will is already signed, the testator must
inform them personally that it was he who signed the Will. It is not necessary
that both the attesters to attest at the same time.
This provision relating to the attestation of the Will is
verbatim same as in the definition of attestation in Section 3 of the Transfer
of Property Act.
Section 3 Transfer of
Property Act
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 acknowledgement 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
In fact this provision was inserted in the Transfer of
Property Act in the year 1926, when the Indian Succession Act was enacted.
Strangely here in this provision one can find all the three options of signing
present. However no corresponding amendment is made in the provisions relating
to the execution of the Gift Deed and Mortgage Deed
The reference to the Sale and Lease is avoided as Transfer of
Property Act does not provide for the attestation of these documents.
Hence the legal formalities for the execution, particularly
the attestation of a Will is similar to that of a Gift and Mortgage.
PROOF OF EXECUTION OF
WILL UNDER SECTION 68
Section 68 of the Evidence Act
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.
Chapter V of the Evidence Act deals with how a document,
which includes a will is to be proved in Court. Section 68 in this Chapter
makes it mandatory for a Will, Mortgage or Gift to be accepted as evidence only
on the deposition of at least one of the attesting witness to the document. The
attesting witness has to orally depose before the Court that either he saw
testator signed or informed personally by the testator that he signed the Will.
If only one of the attesters is examined, he must also state that he saw the
other attester attesting the documents in accordance with Section 3 of the
Transfer or Property Act or 63 of the Indian Succession Act. Only on such
evidence the due execution of these documents will be considered to be proved.
This provision is only in respect of the documents which are
required to be attested by the provisions of the concerned Act. Hence, this
stipulation is not applicable in the case of a Sale or Lease.
When Indian Succession Act was enacted, a proviso was added
to this provision under which is a registered document is not specifically
denied, it is not necessary to examine the attester. However Will is
specifically excluded from the benefit of this proviso. Hence If a Gift or a
Mortgage if not specifically denied in the pleadings to a dispute, it is not
necessary to examine the attesting witness but the production of the registered
document is enough.
It is provided under Order VIII Rule 5(1) of the Code of
Civil Procedure that any allegation of fact in the Plaint, if not denied specifically
it shall be taken to be admitted. The proviso to Section 68 of the Evidence Act
is in consonance with the Civil Procedure Code. It must be kept in mind that
what is meant in these two provisions is not an affirmative statement of fact
but an omission. Silence on the part of a party is enough to invoke the benefit
under this proviso.
If I have to hazard a guess as to why it requires for the
will to be excluded, I would say that a Will speaks from the death of a person
and that for the said reason it has been put on a higher pedestal from other
documents, while determining its genuineness. Though every other document can
be set aside on the ground of undue influence, coercion or mistake of fact,
still in the case of Wills the law places such burden upon the person who relies
on the Will to dispel all suspicions in the mind of the court, whether raised
or not. In the case of a person having no legal heirs, it is possible to
deceive him during his life time to execute a Will and that the State would not
be in a position to deny the Will in the Probate proceedings. Hence the Will is
still to be proved with the examination of the attester even if it is not
specifically denied.
PROOF OF EXECUTION OF
WILL UNDER SECTION 70
Section 68 speaks of a situation when the execution of the
document was not specifically denied; Whereas Section 70 speaks of a situation
when the execution of the will is admitted. Comparing the situations is like
comparing apple with orange.
Section 70 of the Evidence Act
70. Admission of
execution by party to attested document. –– The admission of a party to an
attested document of its execution by himself shall be sufficient proof of its
execution as against him, though it be a document required by law to be
attested.
This section does not exclude a Will as in the case of
Section 68 and is applicable to all attested documents. The term admission is
defined in Section 17 of the Evidence Act
Section 17 of the Evidence Act
Admission defined.––An
admission is a statement, 1 [oral or documentary or contained in electronic
form], which suggests any inference as to any fact in issue or relevant fact,
and which is made by any of the persons, and under the circumstances,
hereinafter mentioned
The admission as meant in Section 70 is an affirmative
statement on a fact. A omission as in the case of Section 68 would not be an
admission for the purpose of the Evidence Act. It is a settled principle, if a
term is defined in the same Act, it is to be taken as its true meaning wherever
it occurs in the same statute unless provided otherwise.
Prior to 1926 in case of all documents, including Gift or
Mortgage, the examination of the attester could be dispensed with only if the
execution was admitted. On inserting a proviso in Section 68 another circumstance
was added that when the document was not specifically denied. The legislature
while inserting the proviso had taken care to exclude the Will aware of the
existence of Section 70. Hence if a will is admitted by a statement, such
admission be a sufficient proof of its execution.
In a case before the Division Bench of the Karnataka High
Court, it was submitted that during 2003 an amendment was proposed to Section
70 with ‘70. Admission of
Execution by Party to attested Will: The admission by the executant of an
attested will of its execution shall, if such admission is made during his
lifetime in a pleading or otherwise in the course of the suit of proceedings,
be sufficient proof of its execution as against those who dispute the
execution, though the Will is one required by law to be attested’ but
the same was lapsed.
In the said case the High Court
accepted the evidence of the attester as in compliance of Section 63 of the
Indian Succession Act, though it was not stated by the attester that he saw the
testator signed the Will. No submission was made on Section 70 except a
reference about the amendment and there was no discussion.
In my respectful view that the
proposed amendment was superfluous as there was no necessity.
INSTANCES OF ADMISSION
OF WILL
Section 68 denotes by the term ‘specifically denied’ that it
will arise only in the course of proceedings before the Court. However the
admission as stated in Section 70 may happen at any place and time. The speaker
Mr.Nagamuthu visualised a classic situation where a person for the reason he
has executed a will bequeathing all his properties to his daughter been
attacked by his son and that he states the due execution of the Will as the
cause of attack in his dying declaration. The statement made before the
Judicial Magistrate would be an admission and that could be used as the proof
of execution of the will.
In the above referred Karnataka case, the testator during his
life time filed a suit against the same Respondents and that in the course of
the suit he made an application for the production of the will executed by him
to be in the safe custody of the Court and that the same was allowed. The
Respondents did not dispute the will. On his death the legatee move the Court
for the probate of the Will and the appeal arose from the dismissal of his
application. (Amita Vs Arvind RegularFirst Appeal No.100166/2015 High Court of Karnataka (Dharwad Bench) dated30/08/19)
Hence the circumstances would arise that that the Will could
be admitted by the testator during his life time and that could be covered
under Section 70 of the Evidence Act.
In the case of Bhagat Ram Vs Suresh, the Hon’ble Supreme
Court without reference to Section 70 accepted a Will without proof as it was admitted
by the Plaintiffs. This facts of that case will be useful for the present
discussion.
One Mast Ram executed a Will dated 16/05/73 bequeathing his
properties to his wife. On the death of her husband, she sold the properties to
the Defendants. The sons of Mast Ram, may be step sons to the legatee filed a
suit stating that the statement given by the testator and recorded by the Sub
registrar while registering the Will on 21/05/73 to be read along with the Will
as it denotes that Mast Ram had given the property only during his wife’s life
time. Supreme Court rejected the writing as it did not comply with the
provisions of Section 63 of Indian Succession Act. However the Defendants did
not examine the attester but the Supreme Court accepted the Will with the
concluding observation ‘So far
as the Will dated 16.5.1973 is concerned. its execution is neither denied nor
disputed. The factum of the Will dated 16.5.1973 having been duly executed and
attested was an admitted fact. The disputed fact was the execution and
attestation of the codicil dated 21.5.1973. The codicil is not proved’
The Supreme Court did not put
the will into test as it was admitted by the Plaintiffs, though the Plaintiffs
would succeed to the property in the absence of the Will. Besides, the scope of
admission is also widened to bring the persons claiming under the testator
within its net.
AS AGAINST WHOM?
Section 70 states that the
admission to be used against the person who made it. The statement admitting a
fact would bind on the persons claiming under him. In the case of a dispute
between the persons claiming under the Will and by survivorship, both are the
legal representatives of the deceased in their own right and hence the question
of ‘for’ or ‘against’ does not have any significance as their roles merges into
one.
In an application for probate,
the person objecting the probate claims his right, representing the estate of
the deceased, protecting the same against a person holding a tainted Will and stating
that it was not truly reflecting the wish of the testator. Hence as for as the
Defendant is concerned it is as if the admission is used against the interest
of the testator
CONCLUSION
In the light of the discussion
above, it is my respectful and humble view that Section 70 of the Indian
Evidence Act covers a will within the ambit of the term ‘attested document’ and
that a Will if its due execution is proved to be admitted by the testator will
be a sufficient proof of its execution in accordance with Section 63 of the
Indian Succession Act’1925
(Suggestions & Corrections welcome)
