Viewed in premise, Section 71 of the 1872 Act has
to be necessarily accorded a strict interpretation. The
two contingencies permitting the play of this provision,
namely, denial or failure to recollect the execution by the
attesting witness produced, thus a fortiori has to be
extended a meaning to ensure that the limited liberty
granted by Section 71 of 1872 Act does not in any
manner efface or emasculate the essence and efficacy of
Section 63 of the Act and Section 68 of 1872 Act. The
distinction between failure on the part of a attesting
witness to prove the execution and attestation of a Will
and his or her denial of the said event or failure to
recollect the same, has to be essentially maintained. Any
unwarranted indulgence, permitting extra liberal
flexibility to these two stipulations, would render the
predication of Section 63 of the Act and Section 68 of the
1872 Act, otiose. The propounder can be initiated to the
benefit of Section 71 of the 1872 Act only if the attesting
witness/witnesses, who is/are alive and is/are produced
and in clear terms either denies /deny the execution of
the document or cannot recollect the said incident. Not
only, this witness/witnesses has/have to be credible and
impartial, the evidence adduced ought to demonstrate
unhesitant denial of the execution of the document or
authenticate real forgetfulness of such fact. If the
testimony evinces a casual account of the execution and
attestation of the document disregardful of truth, and
thereby fails to prove these two essentials as per law, the
propounder cannot be permitted to adduce other
evidence under cover of Section 71 of the 1872 Act. Such
a sanction would not only be incompatible with the
scheme of Section 63 of the Act read with Section 68 of
the 1872 Act but also would be extinctive of the
paramountcy and sacrosanctity thereof, a consequence,
not legislatively intended. If the evidence of the witnesses
produced by the propounder is inherently worthless and
lacking in credibility, Section 71 of Act 1872 cannot be
invoked to bail him (propounder) out of the situation to
facilitate a roving pursuit. In absence of any touch of
truthfulness and genuineness in the overall approach,
this provision, which is not a substitute of Section 63 (c )
of the Act and Section 68 of the 1872 Act, cannot be
invoked to supplement such failed speculative endeavour
45.2 Section 71 of the 1872 Act, even if assumed to be
akin to a proviso to the mandate contained in Section 63
of the Act and Section 68 of the 1872 Act, it has to be
assuredly construed harmoniously therewith and not
divorced therefrom with a mutilative bearing. This
underlying principle is inter alia embedded in the
decision of this Court in the Commission of Income Tax,
Madras Appellant Versus Ajax Products Limited
Respondent AIR 1965, Supreme Court 1358.
[REPORTABLE]
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos.4181-4182 OF 2015
(ARISING OUT OF SPECIAL LEAVE PETITION(C)NOs. 36311-12/2014
JAGDISH CHAND SHARMA .
Vs.
NARAIN SINGH SAINI (DEAD)
THROUGH HIS LRs & Ors.
Citation;AIR 2015 SC2149
AMITAVA ROY, J.
Print Page
to be necessarily accorded a strict interpretation. The
two contingencies permitting the play of this provision,
namely, denial or failure to recollect the execution by the
attesting witness produced, thus a fortiori has to be
extended a meaning to ensure that the limited liberty
granted by Section 71 of 1872 Act does not in any
manner efface or emasculate the essence and efficacy of
Section 63 of the Act and Section 68 of 1872 Act. The
distinction between failure on the part of a attesting
witness to prove the execution and attestation of a Will
and his or her denial of the said event or failure to
recollect the same, has to be essentially maintained. Any
unwarranted indulgence, permitting extra liberal
flexibility to these two stipulations, would render the
predication of Section 63 of the Act and Section 68 of the
1872 Act, otiose. The propounder can be initiated to the
benefit of Section 71 of the 1872 Act only if the attesting
witness/witnesses, who is/are alive and is/are produced
and in clear terms either denies /deny the execution of
the document or cannot recollect the said incident. Not
only, this witness/witnesses has/have to be credible and
impartial, the evidence adduced ought to demonstrate
unhesitant denial of the execution of the document or
authenticate real forgetfulness of such fact. If the
testimony evinces a casual account of the execution and
attestation of the document disregardful of truth, and
thereby fails to prove these two essentials as per law, the
propounder cannot be permitted to adduce other
evidence under cover of Section 71 of the 1872 Act. Such
a sanction would not only be incompatible with the
scheme of Section 63 of the Act read with Section 68 of
the 1872 Act but also would be extinctive of the
paramountcy and sacrosanctity thereof, a consequence,
not legislatively intended. If the evidence of the witnesses
produced by the propounder is inherently worthless and
lacking in credibility, Section 71 of Act 1872 cannot be
invoked to bail him (propounder) out of the situation to
facilitate a roving pursuit. In absence of any touch of
truthfulness and genuineness in the overall approach,
this provision, which is not a substitute of Section 63 (c )
of the Act and Section 68 of the 1872 Act, cannot be
invoked to supplement such failed speculative endeavour
45.2 Section 71 of the 1872 Act, even if assumed to be
akin to a proviso to the mandate contained in Section 63
of the Act and Section 68 of the 1872 Act, it has to be
assuredly construed harmoniously therewith and not
divorced therefrom with a mutilative bearing. This
underlying principle is inter alia embedded in the
decision of this Court in the Commission of Income Tax,
Madras Appellant Versus Ajax Products Limited
Respondent AIR 1965, Supreme Court 1358.
[REPORTABLE]
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos.4181-4182 OF 2015
(ARISING OUT OF SPECIAL LEAVE PETITION(C)NOs. 36311-12/2014
JAGDISH CHAND SHARMA .
Vs.
NARAIN SINGH SAINI (DEAD)
THROUGH HIS LRs & Ors.
Citation;AIR 2015 SC2149
AMITAVA ROY, J.
