Court’s Decision
The Delhi High Court dismissed an appeal challenging the rejection of a probate petition, holding that the appellant failed to prove the valid execution of the Will allegedly made by the deceased testatrix. The Court held that although the first requirement under Section 69 of the Indian Evidence Act, 1872 was satisfied—by proving the signature of one attesting witness—the second requirement, i.e., proof that the signature on the Will was that of the testatrix, remained unfulfilled. Consequently, the Court upheld the trial court’s decision and dismissed the appeal.
“As the Appellant has failed to discharge the burden of proving the valid execution of the Will in question, there is no infirmity with the Impugned Order.”
Facts
The appellant filed a petition for the grant of probate of a Will allegedly executed by his mother (the testatrix) dated 20.09.1972. The Will bequeathed all movable and immovable properties, including a house in Kirti Nagar, New Delhi, to the appellant. The testatrix passed away on 20.10.1972. The Will was purportedly witnessed by two individuals—Mr. Raj Lal and Mr. S.P. Joshi.
In 1974, the appellant had already obtained a succession certificate regarding the testatrix’s debts and securities. However, the probate petition was filed only in 2000. By then, both attesting witnesses to the Will had died. The petition was contested by the appellant’s father, who alleged that the testatrix was not in a fit mental or physical state to execute the Will and further contended that the document was forged and fabricated.
The trial court dismissed the petition, stating that the appellant had failed to establish valid execution and attestation of the Will. Aggrieved, the appellant approached the High Court.
Issues
- Whether the appellant proved the execution of the Will dated 20.09.1972 in accordance with Section 69 of the Indian Evidence Act, 1872?
- Whether the findings of the trial court dismissing the probate petition were legally sustainable?
Petitioner’s Arguments
The appellant contended that the trial court erred in rejecting the petition on the ground that the signature of the testatrix was not proved. He claimed that:
- The Will had been accepted as genuine in earlier proceedings for the grant of succession certificate in 1974, during which both attesting witnesses were allegedly examined.
- The original Will bore an endorsement from the Sub-Judge stating “Original Seen Returned dated 15.3.1974,” establishing its authenticity.
- Since both attesting witnesses were deceased, the appellant examined the son of one of the attesting witnesses (Mr. Raj Lal), who confirmed the authenticity of his father’s signature.
- Under Section 69 of the Indian Evidence Act, 1872, it is sufficient to prove the signature of only one attesting witness when no such witnesses are available.
- Respondent No. 3 never contested the probate petition and had not objected to the grant of succession certificate in 1974.
Thus, it was prayed that the appeal be allowed and probate granted.
Respondent’s Arguments
The respondents submitted that:
- The Will was never executed by the testatrix and was forged.
- The mental and physical condition of the testatrix at the time of the alleged execution made her incompetent to execute the Will.
- The requirements under Sections 68 and 69 of the Indian Evidence Act, 1872 and Section 63 of the Indian Succession Act, 1925 were not fulfilled.
- The son of the attesting witness (Mr. Trilok Kumar) had no personal knowledge of the Will’s execution or the testatrix’s signature.
- The endorsement “Original Seen Returned” did not establish that the Will had been examined or accepted by the Sub-Judge.
- There was no verifiable link between the succession certificate proceedings and the current probate proceedings, especially since the court record had been destroyed in a fire.
Therefore, it was argued that the appeal deserved to be dismissed.
Analysis of the Law
The Court first examined the applicability of Sections 68 and 69 of the Indian Evidence Act, 1872. Section 68 mandates the examination of at least one attesting witness to prove the execution of a Will. However, when the attesting witnesses are not available—either deceased or untraceable—Section 69 can be invoked, which relaxes this requirement but sets two essential conditions:
- It must be proved that the signature of at least one attesting witness is in their handwriting.
- It must be proved that the signature of the person executing the document (testatrix) is in her handwriting.
The Court referred to several Supreme Court judgments, including:
- Moturu Nalini Kanth v. Gainedi Kaliprasad, where the Supreme Court reiterated that the burden of proving both the attesting witness’s and the executant’s signatures is non-negotiable under Section 69.
- Bhagat Ram v. Suresh, emphasizing the stricter standards for proving a Will compared to other documents.
- Ashutosh Samanta v. Ranjan Bala Dasi, which clarified that where attesting witnesses are unavailable, supporting evidence must conclusively establish authenticity.
- Ved Mitra Verma v. Dharam Deo Verma, upholding the proof of a Will via a Sub-Registrar when attesting witnesses had died.
- Apoline D’Souza v. John D’Souza, stressing that mere procedural compliance is insufficient; the suspicious circumstances must also be dispelled.
Precedent Analysis
The Court relied heavily on Moturu Nalini Kanth, Ashutosh Samanta, and Ved Mitra Verma, to reinforce the two-pronged test under Section 69. In contrast to those cases, however, the Court noted that:
- There was no corroborative evidence of the testatrix’s signature.
- No contemporary witness was available to affirm her mental capacity or the act of execution.
- The earlier succession certificate proceedings were unrelated and lacked proven continuity.
Thus, none of the judicial precedents cited by the appellant could be invoked to satisfy the requirements under Section 69 in this case.
Court’s Reasoning
While the appellant succeeded in proving the handwriting of one attesting witness (his son, Mr. Trilok Kumar, testified about his father’s signature), the appellant failed to establish that the signature on the Will was that of the testatrix herself. The Court noted:
- The appellant was not present during the Will’s execution.
- The testimony of Mr. Trilok Kumar did not extend to the signature of the testatrix.
- The original endorsement “Original Seen Returned” did not have any seal or link to the succession certificate proceedings.
These deficiencies proved fatal to the appellant’s case. Without fulfilling both conditions under Section 69, the Will could not be treated as validly executed.
Conclusion
The High Court held that the appellant failed to discharge the burden of proving the execution of the Will in accordance with the statutory requirements. Accordingly, the appeal was dismissed and the trial court’s decision to reject the probate petition was affirmed.
Implications
This judgment reiterates the rigorous evidentiary standards applicable to proving a Will, especially when relying on Section 69 of the Evidence Act. Even in cases where the attesting witnesses are unavailable, the law mandates strict compliance with dual requirements of handwriting proof. Merely proving one attesting witness’s signature is not sufficient if the testator’s signature remains unverified.
It also serves as a caution to litigants attempting to rely on historical proceedings such as succession certificate grants without maintaining proper documentary continuity.
FAQs
1. What happens if the attesting witnesses to a Will are dead?
If attesting witnesses are unavailable, Section 69 of the Indian Evidence Act allows the Will to be proved by establishing that the attesting witness’s signature and the testator’s signature are in their handwriting.
2. Can a succession certificate establish the authenticity of a Will?
No, a succession certificate does not automatically establish the execution of a Will unless a direct connection is proved through admissible evidence.
3. Is it mandatory to prove both attesting witness and testator’s signatures under Section 69?
Yes, under Section 69, both the attesting witness’s handwriting and the testator’s signature must be proved if the attesting witnesses are not available.
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