LexBABU SINGH & ORS. versus RAM SAHAI @ RAM SINGH
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[2008] 7 S.C.R. 250 A BABU SINGH & ORS. v RAM SAHAI @ RAM SINGH (Civil Appeal No. 3124 of 2008) B APRIL 30, 2008 [S.B. SINHA AND V.S. SIRPURKAR, JJ.) Evidence Act, 1872: ss. 68 and 69 - Proof of execution and attestation - Held: c Will is required to be attested by two witnesses - Ordinarily both must be examined to prove execution of Will but if one of them is not available, then it is imperative to examine the other - It is the duty of the person seeking declaration about validity of Will to dispel the surrounding circumstances - Indian D Succession Act, 1925 - s.63(1)(c). s. 69 - Applicability of - Held: Applicable where attesting witness is either dead or out of jurisdiction of Court or is kept out of way by adverse party or cannot be traced despite diligent E search - On facts, propounder did not make any attempt to serve summons upon the sole surviving attesting witness - Statement by counsel or respondent that he had been won over by opposite party cannot be taken to consideration for applying s. 69 of the Act. F A Will was executed in favour of respondent ' bequeathing right, title and interest in the suit property. Appellant claimed themselves to be owner and in possession of the suit property. The trial Court held that Will was not proved in terms G of s.68 of Evidence Act as plaintiff-respondent was bound to examine at least one attesting witnesses to prove the t' .. execution of the Will. One of the attesting witnesses expired before he could be examined as a witness and other attesting witness 'H' was alive and was given up by H 250 BABU SINGH & ORS. v. RAM SAHAI @ RAM SINGH 251 ~ plaintiff on the plea that he was won over by the other A party. First Appellate Court and High Court however held in favour of respondent by relying upon the evidence of the deed writer who was also known to the testator. In appeal to this court, appellant contended that in B the facts and circumstances of the case, s.69 of the Evidence Act cannot be said to have any application. Allowing the appeal, the Court HELD : 1. Indisputably a Will is to be attested by two witnesses in terms of s.68 of the Evidence Act. The c requirement of s.63(1)(c) of the Indian Succession Act is to be complied with for proving a Will. S.68 of the Act mandates proof by attesting witnesses of not merely of execution but also attestation by two witnesses. Thus, not only the execution of Will must be proved but actually D _.. execution must be attested by at least two witnesses. Attestation of execution of Will must be in conformity with the provisions of s.3 of the Transfer of Property Act. 'Attestation' and 'execution' connote two different meanings. (Para 10] (257-C-E] E 1.2. In terms of s. 68 of the Act, although it is not necessary to call more than one attesting witness to ,, prove due execution of a Will but that would not mean that an attested document shall be proved by the evidence of one attesting witness only and two or more attesting F " ,, witnesses need not be examined at all. 5.68 of the Act lays down the mode of proof. It envisages the necessity of more ,. evidence than mere attestation as the words 'at least' have ...... been used therein. When genuineness of a Will is in question, apart from execution and attestation of Will, it is G " also the duty of a person seeking declaration about the "t validity of the Will to dispel the surrounding suspicious circumstances existing if any. Thus, in addition to proving - the execution of the Will by examining the attesting witnesses, the propounder is also required to lead H 252 SUPREME COURT REPORTS (2008) 7 S.C.R. , A evidence to explain the surrounding suspicious circumstances, if any. Proof of execution of the Will would, depend thereupon. The Court, while granting probate of the Will, must take into consideration all relevant factors. It must be found that the Will was product of a free will. B The testator must have full knowledge and understanding as regards the contents thereof. For the said purpose, the background facts may also be taken note of. Where, however, a plea of undue influence was taken, the onus wherefor would be on the objector and not on the offender. c [Paras 11,12] [257-F-H; 258-A-C] Savithri & Ors. v. Karthyayani Amma & Ors. JT (2007) 12 SC 248 - relied on. 1.3. S.69 would apply, in a case where the attesting D witness is either dead or out of the jurisdiction of
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