Summary
The Court restored a preliminary partition decree after holding that the propounder had not proved a registered will excluding other heirs. Registration did not dispense with examination of an available attesting witness. Section 71 could not excuse failure to summon a witness merely because he was related to the opposing party; independently, the surrounding evidence left substantial suspicions about the document’s understood testamentary character unresolved.
Issues
- Whether registration and Section 71 permitted proof of a will without examining an available attesting witness.
- Whether the other evidence removed legitimate suspicions surrounding execution.
Provisions considered
- Section 63(c), Indian Succession Act, 1925Attestation by two or more witnesses and due execution remain mandatory; proof must establish the statutory requirements. (¶¶ 12, 15, 21)
- Sections 68 and 71, Indian Evidence Act, 1872The concession permitting proof through one attesting witness does not dispense with available witnesses or allow Section 71 to cure an omission to summon them. (¶¶ 16, 17, 18, 19, 20, 21, 23)
Held
- A will requires statutory attestation and satisfactory proof of free execution by a testator possessing a sound disposing mind. Legitimate suspicious circumstances must be removed by the propounder. (¶¶ 12, 13, 14, 15, 17)
- Section 71 assists where attesting witnesses called deny or cannot recollect execution; it does not bypass the obligation to examine available attesting witnesses. Anticipated hostility, including relationship to an opposing party, does not excuse their omission. (¶¶ 20, 21, 23)
- Registration alone did not prove the will. Attestation requires an intention to attest, and signatures made merely in a statutory or drafting capacity do not establish that intention. (¶¶ 22, 23)
- Even assuming signatures, the earlier ownership claim without reference to the will, testimony and circumstances raised serious doubt whether the illiterate testatrix understood the document’s nature. The propounder failed to dispel those suspicions or establish execution by other evidence. (¶¶ 24, 25, 26, 27, 28)
Result
Appeal allowed without costs. The High Court judgment was set aside and the trial court’s judgment and preliminary partition decree of 17 January 2018 restored.