7

EVIDENCE LAW PROJECT

ON

THE REVIEW OF THE JUDICIAL PRONOUNCEMENTS ON

PROVING OF WILLS
TABLE OF CONTENTS
CHAPTER I...............................................................................................................................2

INTRODUCTION..................................................................................................................2

CHAPTER II..............................................................................................................................3

CASE LAW REVIEW...........................................................................................................3

2.1 ONUS OF PROVING A WILL...................................................................................3

2.2 VALID ATTESTATION.............................................................................................5

2.3 VALID EXECUTION OF WILL................................................................................7

2.4 VALUE OF REGISTRATION....................................................................................8

CHAPTER III...........................................................................................................................10

ANALYSIS AND CONCLUSION......................................................................................10

 OBJECTIVE AND RESEARCH METHODOLOGY

The objective of this paper revolves around the main subject of proving of the wills before
the court of law for which detailed analysis of the landmark judgments delivered by the
Supreme Court of India and various other High Courts is relied upon. It is well known that
before the evidence is presented before any court of law, it has to be proofed before the court
as its authenticity should be completely unblemished. It is only after having proved itself on
the altar of authenticity and genuineness that any such document is admitted as an evidence
before the court of law. One such important document is a will. There were no specific
provisions for proving of wills in the Indian Evidence Act, 1872, hence, the judiciary took the
onus of laying down the law in this aspect on itself. This paper analyses all such leading
judgments to bring forth the law in this aspect i.e. proving of wills.

As far as the research methodology is concerned, all the research done it was non-empirical.
The main sources of researching were leading commentaries on Indian Evidence Act, 1872
like that of Dr. V. Nageswara Rao, Sarkar and various other books. Adding to these are
additional sources of various online legal databases of Manupatra and other authoritative
soures.

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 CHAPTER I

INTRODUCTION
Section 2(h) of the Indian Succession Act, 1925 gives the definition of a will and S. 63 lists
the procedure for executing a will that is valid in the eyes of law. However, in the Indian
Evidence Act 1872, there are no specific provisions for the proof of wills or codicils. Instead,
the Act only contains general provisions that lay down the procedure for proving the
genuineness and contents of documentary evidence in Sec(s) 68 -71. Hence, the law on proof
of wills has evolved primarily through case law over the years.

Moreover, S. 90 of the Indian Evidence Act 1872 allows the court to make a presumption as
to the genuineness of the will, provided it is 30 years old, notwithstanding S. 68 of the Act.
This presumption is not available when the deed in question can be proved with direct
evidence of the same1 and whether or not the court can do is dependent on the facts of the
case2. Hence, the two provisions do not militate against each other3.

It is a settled principle of law that the mode of proving wills is not very different from
proving any other document except in the requirement of attestation. The burden of proof is
on the propounder in the matters of the testamentary capacity of the testator and in the event
of suspicious circumstances surrounding the will, he/ she will also be required to prove its
genuineness. However, in the event of allegations of fraud, coercion or undue influence, the
onus is on the person alleging the same.

Lastly, since wills are among the few documents required by law in India to be attested, a
combined reading of S. 68 of the Indian Evidence Act 1872 and S. 63 of the Indian
Succession Act 1925 is required to prove a testamentary document.

CHAPTER II

1
Woodroffe and Amri Ali, Law of Evidence, Vol 2, (19th edn), p. 2680.
2
Ram Jethmalani & D.S. Chopra, The Law of Evidence, Vol I, (1st edn), p. 948.
3
Ibid.

2
 CASE LAW REVIEW

2.1 ONUS OF PROVING A WILL

In the landmark case of (1959) Venkatachala Iyengar v. B. N. Thimmajamma4, J.
Gajendragadkar stated the true position on the law of wills. The facts of the case were that the
will of a certain individual granted large bequests in favour of the sons of the executor who
had been very instrumental in the execution of the same. The Supreme Court while holding
that there was no proof of valid execution of the will or the testatrix approving of its contents,
enlisted the provisions i.e. S. 67 and 68, that prescribe the requirements and nature of proof
that must be satisfied by a party seeking to prove the will. Following are the golden words by
J. Gajendragadkar, which are still the good law in this arena, even after almost six decades
having passed under the bridge:

“1. Stated generally, a will has to be proved  like any other document, the test to be
applied  being the usual test of the satisfaction of the prudent mind in such matters. As in
the case of  proof of other documents, so in the case of proof of wills, one cannot insist on
proof with  mathematical certainty.

2. Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as

evidence until, as required by Section 68 of the Evidence Act, 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. 

3. Unlike other documents, the will speaks from the death of the testator and therefore
the maker of the will is never available for deposing as to the circumstances in which the
will came  to be executed. This aspect introduces an element of solemnity in the decision of
the question whether the document propounded is proved to be the last will and testament
of the testator. Normally, the onus which lies on the propounder can be taken to be
discharged on proof of the essential facts which go into the making of the will.

4. Cases in which the execution of the will is surrounded by suspicious circumstances

stand  on a different footing. 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 a substantial benefit and such other circumstances raise
suspicion about the execution of the will. That suspicion cannot be removed by the mere

4
AIR 1959 SC 443.

3
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 and memory at the time 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 heavier and therefore, in cases where the circumstances attendant upon  the
execution of the will excite the suspicion of the court, the propounder must remove
all legitimate suspicions before the document can be accepted as the last will of the
testator.

5. It is in connection with wills, the execution of which is surrounded by

suspicious circumstances that the test of satisfaction of the judicial conscience has been
evolved. That test  emphasises that in determining the question as to whether an
instrument produced before the  court is the last will of the testator, the court is called
upon to decide a solemn question and by  reason of suspicious circumstances the court has
to be satisfied fully that the will has been validly executed by the testator. 

6. If a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of

the will, such pleas have to be  proved by him, but even in the absence of such  pleas, the
very circumstances surrounding the execution of the will may raise a doubt as to whether
the testator was acting of his own free will. And then it is a part of the initial onus of the
propounder to remove all reasonable doubts in the matter.”

The above statement was further clarified and summarized appropriately by J. Chandrachud
in the case of (1977)Jaswant Kaur v. Amrit Kaur5 wherein the son of a predeceased wife and
the second wife of the deceased man were claiming their share in his estate. Post the
enactment of the Hindu Succession Act 1956, the son produced a will that had apparently
been executed by his father in 1945 bequeathing most of the property to the son with only a
life interest in favour of his widow. The Supreme Court laid down that –

 Much like any other document, the test required for proof of wills is that of
satisfaction of the prudent mind and since S. 63 of the Succession Act requires a will
to be attested, it cannot be admitted as evidence unless at least one of the attesting
witnesses can be called to the court to prove its execution as per S. 68 IEA.

5
(1977) 1 SCC 369.

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  Moreover, the presence of suspicious circumstances makes the initial onus on the
propounder heavier in the sense that now, he is not just required to prove the
authenticity of the signature of the testator and his state of mind but remove all
legitimate suspicions surrounding the will.
 Allegation of fraud, coercion, undue influence etc. will have to be proved by the
caveator alleging them.
 The court also evolved the test of ‘satisfaction of judicial conscience’ wherein the
court has to be satisfied fully that the will had been validly executed by the testator
and is in fact his last will and testament6.

By applying the aforementioned principles, the Court held that the will had not been duly
proved.

2.2 VALID ATTESTATION

As J. Willmer declared in his landmark judgment in the English case of Vere-Wardale v.
Johnson7, the aim of the strict formalities required for proving wills is the prevention of
fraud.

As regards the procedure in India, in (2009) Bharpur Singh v. Shamsher Singh8, the Supreme
Court reiterated its stance on the proof of valid attestation of wills which must be done
through a combined reading of S. 63(c) of the Succession Act and S. 68 of the Evidence Act
i.e., the will can be attested by two or more witnesses, each of whom has seen the testator
sign/ affix his signature or has received personal acknowledgment for him/ her to attest the
will; No particular form of attestation is required nor are both attesters required to have
signed it in the presence of each other9.

Moreover, in the event of any attesting witness turning hostile as happened in the case of B.
(1976) Veeramma v. C. Ramakrishna10, the propounder is allowed to cross examine the
witness and rely on other evidence to prove his case. Also, when both the attesting witnesses
are dead and the attendance of a third witness cannot be procured, the will can be proved by
proving the attestation and signature of the testator using other evidence i.e., in the manner of

6
Ibid. Available at - http://indiankanoon.org/doc/873760/ (Last accessed – 15.08.2015); Also, refer,
http://legalperspectives.blogspot.in/2010/05/proof-of-will-law-revisited.html (Last accessed - 15.08.2015).
7
(1949) 2 All ER 250.
8
AIR 2009 SC 1766.
9
Janki Narayan Bhoir v. Narayan Namdeo Kadam AIR 2003 SC 761 Available at -
http://indiankanoon.org/doc/307678/ (Last accessed – 16.08.2015).
10
AIR 1976 AP 370.

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proving any other document. This is the view taken by the Bombay11 and Madhya Pradesh
High Courts. In any case, S. 69 provides the method of proof when no attesting witnesses are
available.

It was also held by the Supreme Court in the case of (1998) Nagulapati Lakshmamma v.
Mupparaju Subbaiah12 that since s. 63 of the Succession Act makes a distinction between
the testator and attester, unlike the former, the attester cannot delegate another person to sign
the will on his behalf. If s/he does so, they are not attesting witnesses as contemplated by the
section.

Lastly, where the document is 30 years old or more, there exists a ‘may’ presumption of due
attestation as per S. 90 of the Evidence Act and the same has been applied to wills as early as
the Privy Council decision in the case of Basant v. Brijraj13.

2.2.1 REGISTRAR AS ATTESTING WITNESS

The case of 2004 Bhagat Ram v. Suresh14 also held that a Registrar of Deeds does not
become an attesting witness merely on discharge of his statutory duties. But if he puts his
signature on the will in the manner laid down for an attesting witness in S. 63(c) of the
Succession Act, he can be declared as an attesting witness provided the court is satisfied as to
the facts and circumstances of the case15.

The above position was further clarified in the case of Pentakota Satyanarayana v. Pentakota
Seetharatnam16, the Registrar had endorsed the fact that the testator had acknowledged
execution of the will before him was held by the Supreme Court to be tantamount to
attestation.17

2.2.2 SCRIBE AS ATTESTING WITNESS

On the question of whether a scribe can be an attesting witness, the Court held in the case of
Abdul Jabbar v. Venkata Sastri & Sons18, that a scribe could be an attesting witness only if he
had put his signature on the document animo attestandi i.e. with an intention to attest.
However, this is not the position of law when it comes to the context of wills.

11
Thakur Rai v. Rambrichh Rai (1970) BJLR 476; Balwant v. Mainabai AIR 1991 MP 11.
12
AIR 1998 SC 2904.
13
AIR 1935 P.C. 132.
14
AIR 2004 SC 436.
15
Ram Jethmalani & D.S. Chopra, The Law of Evidence, Vol I, (1st edn), p. 938.
16
AIR 2005 SC 4362.
17
Ibid. Available at - http://indiankanoon.org/doc/736842/ (Last accessed – 16.08.2015).
18
(1969) 1 SCC 573.

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Considering the effect of the signature of a scribe on a will, the Supreme Court held in the
case of N. Kamalam v. Ayyaswamy19, that the signature of a scribe on a will cannot be
accorded the same status as that of an attesting witness since the animus to attest is not
available to him as he is merely the writer of the will. Hence, his signature cannot be taken as
proof of attestation unless it is expressly stated so in the will itself 20. – Mathew Oomen v.
Susheela Mathew 2006 SCC – ‘There is no requirement in law that a scribe cannot be an
attesting witness. As long as there is animo attestendi – clearly stated that he signed as scribe
and attesting witness.

However, the proof contemplated in S. 68 can be given by the scribe who had witnessed the
execution of the will. The same was decided by the Madras High Court in 1918 in the case of
Parama Siva Udayan v. Krishna Padayachi21 with the caveat that it depends a lot on the facts
and circumstances of each case too.

2.3 VALID EXECUTION OF WILL

In the case of (2007) Apoline D’Souza v. John D’Souza22, the testatrix was a 96 year old lady
who had no knowledge of the attesting witnesses to her will. Also, no one knew who the
scribe of the will was. It was a type written document with several cuts and overwriting.
Additionally, there was no evidence that that the contents had been read and explained to the
testatrix. The Supreme Court held that while proving valid execution of a will under
suspicious circumstances, examination of attesting witnesses is not all that is required. The
propounder has the additional onus of explaining the surrounding circumstances.

Most importantly, the Court in interpreting S. 68 added that just because the section required
statements by one attesting witness, it did not mean that the other attesting witnesses need not
be examined at all and the phrase ‘at least’ proved that it envisages more than just
attestation23.

Secondly, the case of Bhagat Ram v. Suresh24 also laid down that the manner of proof of
execution of a codicil is the same as required in proof of execution of a will. In the case, the
testator had bequeathed the suit property to his wife and thereafter in a separate statement
made before the Registrar of Deeds declared that it should then be transferred to his sons

19
AIR 2001 SC 2802.
20
Ibid. Available at - http://indiankanoon.org/doc/552423/ (Last accessed – 15.08.2015).
21
1918 Mad 491.
22
AIR 2007 SC 2219.
23
Ibid. Available at - http://indiankanoon.org/doc/91848/ (Last accessed – 15.08.2015).
24
AIR 2004 SC 436.

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which was reduced to writing by the Registrar and then signed by him and the testator. When
the widow sold the property to the defendant, the sons filed a suit against her and the Court
held that the statement operated as a codicil to the will25.

2.4 VALUE OF REGISTRATION

As per S. 18 of the Regstration Act 1908, the registration of a will is not compulsory.
However, once a will is registered it becomes strong legal evidence due to presumption of
proper procedure26. In the latest (2015) case of Leela Rajagopal v. Kamla Memon
Cocharan27, the Supreme Court observed that while evaluating the genuineness of a will, the
Court will arrive at its decision after taking overall consideration of all the features and
suspicious circumstances surrounding the will and not base its judgment on a singular
circumstance that may appear at the time of its registration28.

The value of registration in proving the genuineness of a will was laid down in the case of
(1962) Purnima Debi v. Khagendra Narayan29 wherein the Supreme Court held that the mere
fact that a will has been registered is not, by itself, enough to dispel all doubt and suspicion
unless it is closely examined whether the testator was aware that the document bring
registered was a will for disposing of his property an only upon such knowledge did he
execute and sign it30.

If the registration occurred in a perfunctory manner or otherwise as than stated above, the fact
that the will was registered would not be of much value. The Court relied on law reports of
various instances where registered wills were not acted upon due to registration occurring
without the testator really knowing what he was executing31.

In the recent case of Bhagat Ram v. Suresh32, the Supreme Court upheld that registration
of a document as will or codicil does not dispense with the requirement of proving its
attestation and execution as laid down in S. 68. More importantly, no endorsements required
to be made by the Registrar of Deeds under the Registration Act comes under the factum of

25
Ibid. Available at - http://indiankanoon.org/doc/1645305/ (Last accessed – 15.08.2015).
26
Refer - http://mja.gov.in/Site/Upload/GR/Summary%20Civid%20Side.pdf (Last accessed – 16.08.2015).
27
AIR 2015 SC 107.
28
Ibid.
29
AIR 1962 SC 567.
30
Ram Jethmalani & D.S. Chopra, The Law of Evidence, Vol I, (1st edn), p. 947.
31
Ibid.
32
AIR 2004 SC 436.

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attestation and execution as contemplated under S. 63 and S. 68 of the Succession and
Evidence Acts respectively33.

33
Ibid. Available at - http://indiankanoon.org/doc/1645305/ (Last accessed – 15.08.2015).

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 CHAPTER III

ANALYSIS AND CONCLUSION

The cases thus illustrated above throw a light on how provisions regarding proof of
documentary evidence under the Evidence Act i.e., Sections 68 – 71, have been applied by
the Courts over the years in order to prove the authenticity and validity of wills. A very
detailed analysis of the abovementioned sections and their applicability to the proof of wills
been dealt with in the 69th and 185th Reports of the Law Commission of India. Besides this
they have also suggested some amendments to the mentioned sections based on judgments of
courts, comparisons to English Law and the necessity of doing away with references to
colonial England in them34. One of the recommendations was that S. 70 be suitably amended
in context of one of the judgment of the Kerala High Court35 that S. 70 was not applicable to
wills since the executants of a will would not be available to admit that execution was done
by him or her, as it would come into effect on the death of the executant36.

Regarding the valid attestation and execution of wills and in dealing with suspicious
circumstances surrounding them, it can be observed that, the Supreme Court has maintained a
consistent position. It can be said because the initial position taken by the Supreme Court has
only been further clarified in the subsequent cases and there have been next to no changes
seen where the Court was supposed to interpret the law applying to the wills. As seen in cases
where, the Courts have stressed time and again on the importance of an attesting witness for
proving the valid execution of a will and also in cases of suspicious circumstances
surrounding the execution of the same, they have recognised their responsibility and taken
decisions only after taking into consideration all circumstances in totality depending on the
facts of each case. Hence, it seems as though the application of provisions for proving
documentary evidence to prove wills is well settled.

34
Refer, Part iiia on Indian Evidence Act, 185th Report, Law Commission of India Available at -
http://lawcommissionofindia.nic.in/reports/185threport-partiiia.pdf (Last accessed - 16.08.2015).
35
R. Saraswathy v. Bhavath Ammal AIR 1989 Ker 228.
36
Supra n. 34.

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