Bombay HC: Whether attesting witness of forged sale deed is entitled to be released on anticipatory bail?

 So far as regards applicant Bharat Darandale is concerned, he is an attesting witness to the forged document. Legal position is very clear that a witness is not supposed to know contents of the document. He has attested as a witness. It is his case that he attested the said document at the instance of applicant Sanjay. Bharat is not beneficiary under the document. {Para 8}

9. Considering all these facts, this Court is inclined to grant him (Bharat Darandale), anticipatory bail.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Anticipatory Bail Application Nos. 472 of 2022 and 446 of 2022

Decided On: 27.04.2022

Sanjay Padmakar Darandale Vs. The State of Maharashtra

Hon'ble Judges/Coram:

R.G. Avachat, J.

Citation: 2023 ALLMR (CRI) 974, MANU/MH/4901/2022.

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If both the attesting witnesses of will are dead, how execution of will is to be proved?

 When both attesting witnesses to a will are dead, the will can still be proved under Section 69 of the Indian Evidence Act, 1872. This section provides an alternative mechanism for proving documents when attesting witnesses cannot be found or are unavailable.

When Section 69 Applies

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Whether attester of a will is entitled to receive benefits under that same will ?

 Legal Framework under the Indian Succession Act, 1925

The question of whether an attesting witness (attester) to a will can receive benefits under that same will is governed by Section 67 of the Indian Succession Act, 1925. The Act lays down specific rules on this issue, and the answer depends on both the religion of the testator and the role of the witness.

General Rule: Bequest to Attesting Witness Is Void

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Madras HC: It is not necessary to examine attesting witness to prove agreement of sale

 If the revisions are allowed and the prayers are granted, the plaintiff will only prove that the signatures are of the attesting witnesses. As per Sections 68 to 71 of the Indian Evidence Act, the proof of the signatures of the attesting witnesses is necessary only when the document is required by law to be so attested. In case, the document does not require attestation, Sections 68 to 71 would be of no avail. This is clear from Section 72 of the Indian Evidence Act. {Para 17}

18. As per Section 72 of the Indian Evidence Act, an attested document, that is not required to be attested, would have to be proved as if it were unattested. An agreement of sale is not a document which requires attestation. Therefore, the proof that would be required as per Section 72 would be dehors the attestation in the said document. If that be the position of law, then by proving the signatures of the attesting witnesses, it does not take the plaintiff anywhere.

IN THE HIGH COURT OF MADRAS

C.R.P. (PD) Nos. 2927, 2930 of 2022, 

Decided On: 08.08.2024

S. Suresh Vs. K. Vijayalakshmi and Ors.

Hon'ble Judges/Coram:

V. Lakshminarayanan, J.

Citation: MANU/TN/4585/2024.

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How to prove execution of will if both attesting witnesses are dead or deny its execution?

 We are of the view that Section 69 of the Evidence Act manifests a departure from the requirement embodied in Section 68 of the Evidence Act. In the case of a Will, which is required to be executed in the mode provided in Section 63 of the Indian Succession Act, when there is an attesting witness available, the Will is to be proved by examining him. He must not only prove that the attestation was done by him but he must also prove the attestation by the other attesting witness. This is, no doubt, subject to the situation which is contemplated in Section 71 of the Evidence Act which allows other evidence to be adduced in proof of the Will among other documents where the attesting witness denies or does not recollect the execution of the Will or the other document. In other words, the fate of the transferee or a legatee under a document, which is required by law to be attested, is not placed at the mercy of the attesting witness and the law enables proof to be effected of the document despite denial of the execution of the document by the attesting witness.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 1021-1026, 1027-1032, 1033-1038, 1039-1044 and 1045-1050 of 2013

Decided On: 17.07.2020

 V. Kalyanaswamy (D) by L.Rs. Vs.  L. Bakthavatsalam (D) by L.Rs. and Ors.

Hon'ble Judges/Coram:

Sanjay Kishan Kaul and K.M. Joseph, JJ.

Citation:  MANU/SC/0528/2020,2020 SCC OnLine SC 584 

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Whether party can examine scribe in place of attesting witness to prove execution of document?

In Abinash

Chandra Bidvanidhi Bhattacharya v. Dasarath Malo [ILR

56 Cal 598] it was held that a person who had put his

name under the word “scribe” was not an attesting

witness as he had put his signature only for the purpose

of authenticating that he was a “scribe”. In Shiam

Sunder Singh v. Jagannath Singh [54 MLJ 43] , the Privy

Council held that the legatees who had put their

signatures on the will in token of their consent to its

execution were not attesting witnesses and were not

disqualified from taking as legatees.”

25. In the aforesaid case, it had been held that the person who put his

name under the word “scribe” was not an attesting witness, further

that the legatees who had put their signatures on the Will were not

attesting witnesses. 

26. Mr. Swarup relied on judgment reported as N. Kamalam (Dead) &

Anr. v. Ayyasamy & Anr.12 that in the absence of Maha Singh

deposing that he is the attesting witness along with Azad Singh, his

statement cannot be treated to be that of attesting witness. We do

not find any merit in the said argument. In the aforesaid case, it

was the scribe who was said to be the attesting witness. This Court

held as under:

“27. …The animus to attest, thus, is not available, so far

as the scribe is concerned: he is not a witness to the will

but a mere writer of the will. The statutory requirement

as noticed above cannot thus be transposed in favour of

the writer, rather goes against the propounder since both

the witnesses are named therein with detailed address

and no attempt has been made to bring them or to

produce them before the court so as to satisfy the

judicial conscience. Presence of scribe and his signature

appearing on the document does not by itself be taken to

be the proof of due attestation unless the situation is so

expressed in the document itself — this is again,

however, not the situation existing presently in the

matter under consideration.

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1960 OF 2020

DHANPAT Vs  SHEO RAM 

Dated:MARCH 19, 2020.

HEMANT GUPTA, J.

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When it is not necessary to examine attesting witness to prove execution of gift deed?

Under the proviso to Section 68 the obligation to produce at least one attesting witness stands withdrawn if the execution of any such document, not being a will which is registered, is not specifically denied. Therefore, everything hinges on the recording of this fact of such denial. If there is no specific denial, the proviso comes into play but if there is denial, the proviso will not apply.

We think that specific denial of execution of gift is an unambiguous and categorical statement that the donor did not execute the document. It means not only that the denial must be in express terms but that it should be unqualified, manifest and explicit. It should be certain and definite denial of execution. What has to be specifically denied is the execution of the document. 

18. The question which elicited the above answer gives a clear understanding of the case of the Defendants as they understood their case. Defendants have no case that no document was executed by Anandan Nambiar. Their case is that the document is not valid because it had been executed under circumstances which would render the document invalid. There is no specific denial of the execution of the document. The Respondents can seek the aid of the proviso to Section 68 of the Evidence Act. No defect in not calling an attesting witness to prove the document. We do not think that we can ignore Ext. A1 gift deed on the ground that no attesting witness has been called for, for proving the gift deed.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7528 of 2019 

Decided On: 23.09.2019

Govindbhai Chhotabhai Patel  Vs. Patel Ramanbhai Mathurbhai

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Supreme Court: it is not necessary to examine attesting witness to prove execution of gift deed if there is no specific denial

The question which elicited the above answer gives a clear understanding of the case of the Defendants as they understood their case. Defendants have no case that no document was executed by Anandan Nambiar. Their case is that the document is not valid because it had been executed under circumstances which would render the document invalid. There is no specific denial of the execution of the document. The Respondents can seek the aid of the proviso to Section 68 of the Evidence Act. No defect in not calling an attesting witness to prove the document. We do not think that we can ignore Ext. A1 gift deed on the ground that no attesting witness has been called for, for proving the gift deed.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7528 of 2019 

Decided On: 23.09.2019

Govindbhai Chhotabhai Patel  Vs.  Patel Ramanbhai Mathurbhai

Hon'ble Judges/Coram:

L. Nageswara Rao and Hemant Gupta, JJ.

Citation: AIR 2019 SC 4822,2020(2) MHLJ 258

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Whether evidence of attesting witness can be discarded if he has not read the content of will?

I have gone through the evidence of Mr. Ghadage, attesting witness and I found it reliable, cogent consistent and stood to the test of cross examination. Thus, there is a compliance of provisions of Section 68 of the Evidence Act. However, evidence of this witness has been disbelieved by the learned appellate Court, only on the ground that, this witness did not read the contents of the Will and put his signature at the instance of Mr. Salunke (scribe). The learned appellate Court thus held that since the attesting witness knew nothing about the contents of the Will, his evidence was falling short of the requirements of Section 68 of the Evidence Act.

19. In my view, the reasons for discarding the evidence of this attesting witness are unfounded and not acceptable. The requirement of Section 68 of the Evidence Act is to prove the execution of document, which is required by law to be attested. Therefore, what is to be proved, is execution of the Will and not the contents of it. Thus, the learned Appellate Court has committed an error by discarding the evidence of this witness.

IN THE HIGH COURT OF BOMBAY

Second Appeal No. 538 of 2015 and Civil Application No. 353 of 2012

Decided On: 01.03.2019

 Chandrakala Krishna Dhole Vs.  Bhimrao Dattu Kadam and Ors.

Hon'ble Judges/Coram:

Sandeep K. Shinde, J.

Citation: 2019(4) MHLJ 949

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Whether affidavit of examination in chief of witness is admissible U/S 32 of evidence Act if he dies prior to cross examination?

Secondly, even under section 32 of the Evidence Act, the statement of the deceased would become relevant subject to one of the four conditions mentioned in the main section and for purposes of the eight circumstances spelt out in the later part of the section itself. Therefore, unless both these predicates are satisfied, at least ordinarily, the statement of the deceased cannot be treated as "evidence" under the Evidence Act.

23. Section 32 of the Evidence Act comprises two parts. The main section provides that the statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, then such statements may themselves be relevant facts. The second part of section 32, however, states the circumstances, in which, such statements may be regarded as "evidence" of the relevant facts. They are as follows:

"(1) When it relates to the cause of his death.

(2) When it is made in the course of business, such as an entry in books, or acknowledgement or the receipt of any property, or date of a document.

(3) When it is against the pecuniary or proprietary interest of the person making it, or when it would have exposed him to a criminal prosecution or to a suit for damages.

(4) When it gives opinion as to a public right or custom or matters of general interest and it was made before any controversy as to such right or custom had arisen.

(5) When it relates to the existence of any relationship between persons as to whose relationship the maker had special means of knowledge, and it was made before the question in dispute arose.

(6) When it relates to the existence of any relationship between persons deceased and is made in any will or deed or family pedigree, or upon any tombstone or family portrait, and was made before the question in dispute arose.

(7) When it is contained in any deed, will, or other document.

(8) When it is made by a number of persons and expresses feelings relevant to the matter in question."

24. In the present case, the first part of section 32 of the Evidence Act was no doubt attracted because Mr. Desai died after filing his affidavit in lieu of examination-in-chief, but before his cross-examination could even commence. However, section 32 of the Evidence Act does not render the statements made by persons who cannot be called as witness admissible in all cases. The statements themselves may be regarded as "evidence" or relevant facts in the eight circumstances referred to in the second part of section 32 of the Evidence Act. The impugned judgment and order does not advert to the circumstances in second part of section 32 of the Evidence Act.

25. The statements in Mr. Desai's affidavit in lieu of examination-in-chief neither relate to cause of his death nor can they be said to be statements made in the course of his business. The statements can neither be said to be against Mr. Desai's pecuniary or proprietary interest nor can it said that such statements would have exposed to him some criminal prosecution or suit for damages. The statements obviously do not relate to any opinion as to public right or custom or matters of any general interest. The statements also do not relate to existence of any relationship between persons as to whose relationship Mr. Desai had any special means of knowledge. The statement in this case, was not made any will or deed or family pedigree in relation to existence of any relationship between persons deceased before any question or dispute arose. Mr. Desai's statement in the present case, was also not some statement and contained in any deed, will or other document. Finally, this is also not a case of statements made by several persons and expresses feelings relevant to the matter in question. This is the second reason why the statements in Mr. Desai's affidavit in lieu of examination in chief could not have been treated as "evidence" under the Evidence Act.

IN THE HIGH COURT OF BOMBAY

Appeal No. 333 of 2017 in Testamentary Suit No. 28 of 1995

Decided On: 22.10.2018

 Anuradha Anil Bhagwat Vs. Kirit Navnitlal Damania and Ors.

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka and M.S. Sonak, JJ.

Citation: AIR 2019 Bom 41,2019(3) MHLJ 790

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Whether legatee can prove execution of will?

All these three requirements by its nature would show the mandate to be complied with in the execution of a Will or Codicil apart from a document required by law to be attested. A mere attestation as in the case of a document required by law to be attested is not sufficient in the matter of execution of a Will or Codicil and it should satisfy the requirements as enumerated under clauses (a) and (b) to Section 63 of the Indian Succession Act, besides the requirement as enumerated in clause (c). Different treatments were given to a Will and Codicil apart from other document required by law to be attested by insisting compliance under Clause (a) to (c) to S. 63 of Indian Succession Act. Apart from the above said requirement regarding execution of a Will or Codicil, in the matter of proof also, a different treatment was given apart from a document required by law to be attested under S. 68 of Indian Evidence Act. The reason is quite obvious that the question of genuineness of signature of testator and due execution of a Will or Codicil would arise only after his or her death. The Clause (b) to S. 63 mandates that the signature or mark of the testator or the person who signed on behalf of the testator, "shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will" which stands for affixture of signature by the testator or person under his instruction, in his presence, to give effect to the document with full knowledge at his free volition, free from any vitiating circumstance. It is by virtue of clause (b) to S. 63 of the Act, a burden cast upon the proponder to explain and clear out all suspicious circumstance attached to the execution of the Will or Codicil. But no such requirement is mandated in the matter of a document required by law to be attested, such as gift, settlement, etc. When legatee is permitted to stand as an attesting witness that itself amounts to a suspicious circumstance within the meaning of clause (b) to S. 63 of Indian Succession Act when read along with the other two mandate - clauses (a) and (c) to S. 63 of the Act Needless to say that a Will or Codicil attested by legatees alone or the person interested with the legatees who holds a fiduciary relationship with the legatee/legatees would itself amounts to suspicious circumstance attached to its execution, absence of an independent attesting witness to the document is so fatal to the bequest under the document. It would destruct the legislative intention demanding compliance of mandate incorporated both under S. 68 of Indian Evidence Act and S. 63 of Indian Succession Act and their evidence or attestation would stand as self serving, though there is no provision debarring attestation by a legatee as far as an unprivileged Will of a Hindu is concerned. Atleast one of the attesting witness should be an independent witness and his examination cannot be avoided if he is capable of giving evidence and amenable to the process of the court for proving the Will or Codicil in accordance with the mandate under S. 68 of the Evidence Act. In short, a legatee under the Will or a person who is interested in the bequest cannot be an independent witness for the purpose of attestation to a last testament either as a Will or Codicil and hence mere examination of a legatee who stand as one of the attesting witness would not be a sufficient compliance of mandate under S. 68 of the Evidence Act. In the instant case, the only witness examined to prove the due execution of Ext. A4 is the first defendant and the Will was executed in favour of his children by giving major portion of the property and hence he cannot be an independent witness for the purpose of mandate under S. 68 of Indian Evidence Act in proof of execution of Ext. A4 Will.

IN THE HIGH COURT OF KERALA

S.A. No. 717 of 2002

Decided On: 29.01.2019

Raveendran Nair Vs. Raman Nair

Hon'ble Judges/Coram:

P. Somarajan, J.

Citation: AIR 2019 Kerala 91

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Whether it is necessary to examine attesting witness to prove execution of sale deed?

It is for the reasons that, firstly, the execution of the sale deed does not need any attesting witness like the gift deed, which requires at least two attesting witnesses at the time of its execution as per Section 123 of the Transfer of Property Act, 1882; and Secondly, Section 68 of the Evidence Act, 1872, which deals with the examination of the attesting witness to prove the execution of the document, does not apply to sale deed, which is governed by Section 54 of the Transfer of Property Act.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 19625 of 2017 (Arising out of SLP (C) No. 27725/2014)

Decided On: 23.11.2017

Bayanabai Kaware Vs. Rajendra

Hon'ble Judges/Coram:

R.K. Agrawal and Abhay Manohar Sapre, JJ.

Citation:(2018) 1 SCC 610

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Whether valid will is executed if attesting witnesses put their signature on will on date of registration?

"(1) Can the execution of a Will and its attestation be on a date subsequent to the date shown in it as the date of its execution?

The evidence tendered by the defendants to prove the execution of Ext. B2 Will and the genuineness of Ext. B2 Will have also to be considered. DW2 is the scribe who prepared Ext. B2 Will. Ext. B2 is dated 21.03.2001. The date of execution of Ext. B2 Will is clearly shown as 21.03.2001. According to DW2, Ext. B2 was prepared as instructed by Raghavan Vaidyar and his wife. At the same time, DW1 who is the wife of testator, has clearly stated that Raghavan Vaidyar was not in the habit of discussing such matters with her. According to DW2, Ext. B2 Will was registered on 27.03.2001. He clearly narrated and explained that on 27.03.2001 at 9.30 a.m., the testator, his wife and two attestors came to his office. Ext. B2 Will was read over to them. The testator signed in Ext. B2 Will in his presence as well as in the presence of the attestors. Thereafter, the attestors affixed their signatures. After that they went to the Sub Registry office and got Ext. B2 Will registered.

21. In cross- examination, DW2 has clearly deposed that Ext. B2 Will was prepared on 21.03.2001 and it was signed on 27.03.2001. When he was asked whether the testator and the attesting witnesses had affixed their signatures in Ext. B2 Will on 21.03.2001, he clearly stated that the signatures were affixed on 27.03.2001. In re-examination he was made to say that Ext. B2 Will was intended to be registered on 21st and thereby it was prepared and subsequently it was postponed to 27th when he was so instructed over phone.

22. DW3 is one of the attesting witnesses in Ext. B2. His evidence in chief examination itself shows that the document was read over to them and thereafter Raghavan Vaidyar affixed his signature on all the pages of Ext. B2 Will in his presence and the other attesting witnesses, and they could see him signing it. Thereafter, he along with other attesting witnesses, after writing their names and addresses in the last page of Ext. B2 Will, affixed their signatures. Strangely enough, DW3 has no case that he along with the other attesting witnesses had affixed their signatures in the presence of the testator or that the testator could see them affixing their signatures in Ext. B2 Will. Therefore, such an attestation cannot be treated as proper and valid attestation within the meaning of S.63(c) of the Indian Succession Act.

23. In cross-examination, DW3 has deposed that the testator had given instructions to the document writer to prepare Ext. B2 Will while they were in the car. He clearly admitted that it is false to state that the signatures were affixed in Ext. B2 Will on 21.03.2001. Apart from that, the credibility of DW3 has also to be considered. He has clearly admitted that he was an accused in a vehicle theft case and further that another case was there against him when he was found in suspicious circumstances.

24. Execution of a document and registration of a document are totally different. The formalities for attestation contemplated under Section 63 of the Indian Succession Act is confined to the execution of a Will and not for its registration. A Will is not a compulsorily registrable document. In fact, registration has no importance at all; whereas, registration may result in some sort of added credibility on the proof of its execution. The presence of identifying witnesses before the Registrar cannot be substitute of valid attestation in the case of a Will. The attestation contemplated under Section 63(c) of the Indian Succession Act is confined to the execution and not the registration.

25. On a perusal of Ext. B2 Will and the written statement filed by defendants 1 to 3, it could be seen that the date of execution of Ext. B2 Will is 21.03.2001. When Ext. B2 Will was allegedly executed on 21.03.2001, it cannot be said that the attestation of such a document was on 27.03.2001. The document was registered on 27.03.2001 only. When it is shown that the document was executed on 21.03.2001, that date should be the date of its execution as well as attestation. It has clearly come out from the evidence of DW2 and DW3, that Ext. B2 Will was not executed on 21.03.2001, which date it bears as the date of its execution.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

RSA No. 779 of 2011 (A)

Decided On: 07.03.2017

K.C. Bindu and Ors. Vs.Leela Kollandi and Ors.

Hon'ble Judges/Coram:

B. Kemal Pasha, J.

Citation: AIR 2017(NOC)1119 Kerala

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Whether it is necessary to examine attesting witness if executant himself admitted execution of gift deed?

I have considered the facts of the present case and the arguments advanced by the learned
counsel appearing for the respective parties. Since the decision in the present case with regard to
the challenge thrown to both the impugned orders dated August 5, 2016 and September 06, 2016 is
dependant on the scope and purport of Section 68 of the evidence Act, the same is set out
hereinbelow :-
“ 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 atleast 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 above proviso to Section 68 of the Evidence Act was incorporated by Section 2 of the
Indian Evidence ( Amendment) Act, 1926. A bare reading of the proviso to Section 68 of the
Evidence Act shows that the rigor of the section has been relaxed to some extent and it is, therefore,
not required to call an attesting witness, except in a case of a Will , unless the execution of the
registered document itself is specifically denied. This view is fortified by the decision of the
Supreme Court in the case of Khushalchand Swarup Chand Zabak Jain v. Sureshchandra
Kanhaiyalal Kochar @ Anr., reported in 1995 supp.(2) SCC 36, as well the said decision of this
Court in the case of Kumaresh Majumder(supra). In this case, from a reading of paragraph 19 of
the plaint in the suit it is clear that the plaintiff-petitioner has not disputed the execution of the said
deed of gift by the defendant-opposite party no.1. She has alleged that at the time of execution of
the said deed of gift the defendant-opposite party no.1 was suffering from various diseases.
Therefore, I am of the view that in the facts of the present case, the learned Court below was right
to hold that when the said deed of gift is a registered instrument and the defendant-opposite party
no.1 executant himself admitted to have executed the same, the execution of the said deed of gift
was duly proved even in the absence of any of the two witnesses and the same was correctly
marked as an exhibit. Accordingly, I do not find any merit in the challenge either against the firstimpugned order dated August 5, 2016 refusing to expunge the said deed of gift, marked an Exhibit-
“A” of the suit, from the list of exhibits or the second impugned order dated September 06, 2016.
IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
Appellate Side
Present :  Justice Ashis Kumar Chakraborty
 C.O. 4225 of 2016
 Kakali Ghosh
Vs.
 Madan Mohan Ghosh & Anr.

Judgement on : 20.12.2016
Citation:AIR 2017(NOC) 187 Cal

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Whether registration of will will prove its execution?

Execution of a document and registration of a

document are totally different. The formalities for attestation

contemplated under Section 63 of the Indian Succession Act


is confined to the execution of a Will and not for its

registration. A Will is not a compulsorily registrable

document.       In fact, registration has no importance at all;

whereas, registration may result in some sort of added

credibility on the proof of its execution. The presence of

identifying witnesses before the Registrar cannot be

substitute of valid attestation in the case of a Will.    The

attestation contemplated under Section 63(c) of the Indian

Succession Act is confined to the execution and not the

registration.

       25    On a perusal of Ext.B2 Will and the written

statement filed by defendants 1 to 3, it could be seen that

the date of execution of Ext.B2 Will is 21.03.2001. When

Ext.B2 Will was allegedly executed on 21.03.2001, it cannot

be said that the attestation of such a document was on

27.03.2001. The document was registered on 27.03.2001

only. When it is shown that the document was executed on

21.03.2001, that date should be the date of its execution as



well as attestation. It has clearly come out from the evidence

of DW2 and DW3, that Ext.B2 Will was not executed on

21.03.2001, which date it bears as the date of its execution.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT:

              MR. JUSTICE B.KEMAL PASHA

               7TH DAY OF MARCH 2017

                      RSA.No. 779 of 2011 

           K.C.BINDU, D/O. CHOYIKUTTY,
          Vs
          LEELA KOLLANDI (DIED), W/O. VANNANKANDY
           

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Whether execution of mortgage deed can be proved without examining attesting witness?

We shall first deal with the proof of the certified copy of the deed of mortgage. So far as the mortgage deed is concerned, the plaintiff filed a certified copy and called upon the defendant to file the original. The defendant refused to do so. The plaintiff, therefore, proceeded to file the certified copy as secondary evidence under sub-clause (a) of section 65 of the Evidence Act. This was certainly permissible. The mortgage is a document required to be attested by two attestors undersection 59 of the Transfer of Property Act and in this case it is attested by two attestors. The mode of proof of documents required to be attested is contained in sections 68 to71 of the Evidence Act. Under section 68, if the execution of a document required to be attested is to be proved, it will be necessary to call an attesting witness, if alive and subject to the process of Court and is capable of giving evidence. But in case the document is registered

- then except in the case of a will - it is not necessary to call an attesting witness, unless the execution has been specifically denied by the person by whom it purports to have been executed. This is clear from section 68 of the Evidence Act. It reads as follows:

"Section 68: If a document is required by law to be attested, it shall not be used as evidence until one attesting witness atleast 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, unless its execution by the person by whom it purports to have been executed is specifically denied."

In the present case, though it was stated in the written statement that there was no relationship between the parties as mortgagor and mortgagee, the defendant admitted in his additional pleas in the same written statement that the mortgage deed was executed but he contended that it was executed to circumvent the Rent Control legislation. In fact, in his evidence as DW2 the defendant admitted the execution of the mortgage. It must therefore be taken that there was no specific denial of execution. Hence it was not necessary for the plaintiff to call the attestor into the witness box, this not being a will. The plaintiff could therefore not be faulted for not examining any of the attestors. Hence the mortgage stood proved by the certified copy. The Courts below were right in accepting that the deed was proved. 

Supreme Court of India

Ishwar Dass Jain (Dead) Thr. Lrs vs Sohan Lal (Dead)By Lrs on 29 November, 1999

Bench: M.Jagannadha Rao, M.B.Shah

Citation:AIR 2000 SC426  

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How to appreciate evidence of proof of execution of will?

 The respondent/defendant no. 1 in his own evidence has identified the signatures of the mother Smt. Devki Devi Rode on the said Will. I do not find any bar to the signatures of the executant of a Will being proved by the propounder of the Will. A Division Bench of this Court recently in Subhash Nayyar Vs. Registrar, University of Delhi MANU/DE/0246/2013 concurred with the decision of the Madras High Court in Jambunatha Iyer Vs. Sankari Ammal MANU/TN/0735/1993 laying down that though Section 69 requires fulfillment of two conditions but the emphasis therein is on fulfillment only of the condition of proof of attestation by one of the attesting witnesses and which when proved is evidence of everything upon the face of the instrument since it is to be presumed that the witness would not have subscribed his name in attestation of that which did not take place. It was further held that Section 69 nowhere prescribes that both requirements have to be fulfilled by the same witnesses and the propounder of the Will can identify the signatures of the executant.

26. As far as the aspect of proof of neither of the attesting witnesses being found is concerned, the contesting respondent/defendant no. 1 has deposed having personally visited the address of the other attesting witnesses mentioned under his signatures on the Will and the said attesting witness being not found thereon and new address not being available with any of the neighbours also. Not a single question was put to him in cross examination on the said aspect. The inference in law from non-cross examination of a witness on a particular aspect of his deposition is well settled i.e. that the cross examining party is deemed to have accepted the said part of the deposition. Reference in this regard can be made to Laxmibai (Dead) Through LR's Vs. Bhagwant Buva (Dead) Through LR's MANU/SC/0072/2013 : (2013) 4 SCC 97, Rajinder Pershad (Dead) by LR's Vs. Darshana Devi MANU/SC/0453/2001 : (2001) 7 SCC 69 and judgment dated 19th September, 2013 in RFA No. 411/2000 titled Chanchal Dhingra Vs. Raj Gopal Mehra. The learned Addl. District Judge is thus clearly in error in holding the contesting respondents/defendants no. 1&2 to have not proved that no attesting witness to the Will was to be found.

27. As far as the testamentary capacity of the mother Smt. Devki Devi Rode is concerned, merely from the factum of old age and her suffering from cancer it cannot be presumed that she lacked testamentary capacity; the Will was executed in 1994 but she fell ill with cancer only in 1996. It is for a person challenging a Will to not only plead but prove that the testator/testatrix lacked testamentary capacity but also to give specific reasons therefor. Admittedly there are no pleadings of the lack of testamentary capacity of Smt. Devki Devi Rode. The wife of the appellant/plaintiff appearing as a sole witness on his behalf in her affidavit by way of examination-in-chief did not even utter a word of Smt. Devki Devi Rode not having testamentary capacity. In her cross examination she admitted the photograph on the registered Will to be of Smt. Devki Devi Rode. In her cross examination also, nothing came out challenging the testamentary capacity.

28. I am of the view that in the absence of any challenge to the testamentary capacity, the Will cannot be disbelieved on that ground. Rather in the cross examination of the contesting respondent/defendant no. 1 it has come to light that Smt. Devki Devi Rode at the time of execution of the Will was able to walk and she used to read newspapers. No further cross examination was done on the said aspect. To hold that a Will can be disbelieved on the ground of lack of testamentary capacity without even the person propounding the Will being put to notice of such challenge, would be contrary to the basic principles of natural justice. The Supreme Court in Niranjan Umesh Chandra Joshi Vs. Mrudula Jyoti Rao MANU/SC/8788/2006 : (2006) 13 SCC 433 has held that there exists a distinction where the suspicions are well founded and cases where there are only suspicions and that existence of suspicious circumstances alone may not be sufficient and the Court may not start with a suspicion and a resolute and impenetrable incredulity is not demanded from the Judge even if there exist circumstances of grave suspicion. Even otherwise in the preponderance of probabilities I am inclined to believe the said Will.

IN THE HIGH COURT OF DELHI

RFA 765/2006

Decided On: 25.10.2013

 Surender Rode Vs.Madan Mohan Rode and Ors.

Hon'ble Judges/Coram:Rajiv Sahai Endlaw, J.

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When execution of will can be proved without examining attesting witness?

In Thayyullathil Kunhikannan (supra) a Division Bench of the Kerala High Court while considering the provisions of Sections 58 and 68 of the Evidence Act as to the requirement to call an attesting witness, held--

Section 68 relates to those documents which require to be proved at the trial of a suit. If by any rule of law or of pleadings, such proof is not required, Section 68 cannot operate to insist on formal proof by calling an attesting witness. Section 58 has to be read as overriding Section 68and as obviating the necessity for calling an attesting witness, unless the execution of the Will or the attestation is in dispute. In the absence of any such plea in the written statement, it will be the height of technicality and waste of judicial time to insist on examination of an attesting witness, before a Will could be used as evidence. Order 8 Rule 5 C.P.C. deems the execution of the Will to be admitted in the absence of any denial thereof in the written statement. Examination of an attesting witness is therefore unnecessary when the parties have not joined issue on the validity or genuineness of the Will.

Andhra High Court

Darisi Masthanamma vs Mandiga Rama Krishna on 24 January, 2006

Equivalent citations: AIR 2006 AP 286, 2006 (2) ALD 534

Bench: S A Reddy

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When will which is thirty years old shall be deemed to proved even though no attesting witness is examined?

As noticed by the appellate Court it is no doubt true under Section 68 of the Evidence Act all documents compulsorily attestable should be proved by examining one of the attesting witnesses. But, Section 90 of the Evidence Act creates an exception and even in the absence of formal proof as required one can seek raising of the presumption under Section 90 of the Evidence Act if the document is 30 years old.

 On the basis of the evidence on record, it is clear that there were only two attesting witnesses and one scribe and all of them have died. If the attesting witnesses are not alive, the question of their examination in terms of Section 68 of the Evidence Act would not arise. At any rate, Ex.A2 is a registered will of 30 years old and in these circumstances, the appellate Court in the light of the evidence of witnesses on record and also on the basis that the document was of 30 years old raised a presumption under Section 90 of the Evidence Act and consequently held that Ex.A2 will was proved, Having regard to the evidence on record, I do not think that this finding of fact recorded by the appellate Court suffers from any infirmity.

Andhra High Court

Kesarapu Manikyalu vs Venna Perumallayya (Died) By Lrs. ... on 10 October, 1999

Equivalent citations: 2000 (1) ALD 32,2000 AIHC590 AP,AIR 2000(NOC)20 AP

Bench: B Raikote

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How to prove death of attesting witnesses of will?

All the attesting witnesses are stated to have died.   Whether 

they have died would have to be proved by substantiating evidence.  The 
acceptable   mode   of   proof   would   be   the   death   certificate   issued   by   the 
municipality.  The plaintiff has not shown why the application for issue of a 

death   certificates   of   the   three   attesting   witnesses   is   not   made.     Merely 

stating that the witnesses are not alive and cannot be found is, therefore, 

not sufficient.  

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
TESTAMENTARY SUIT NO. 46 OF 1993
IN
TESTAMENTARY PETITION NO. 2 OF 1993

Smt. Usha Shrikant Rege Vs. Smt. Gauri Gajanan Rege

CORAM:  MRS. ROSHAN DALVI, J.

Dated : 15   SEPTEMBER, 2014
Citation;2014(6) MHLJ 781 Bom,   2016(1) ALLMR 801

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