Supreme Court rules Section 69 Evidence Act can prove a Will only when attesting witnesses cannot be found under Section 68.
The Supreme Court has clarified that Section 69 of the Indian Evidence Act is an exceptional method of proving a Will and cannot be invoked by bypassing Section 68.
The Supreme Court has held that Section 69 of the Indian Evidence Act, 1872 cannot be treated as an alternative route to prove a Will when the ordinary procedure prescribed under Section 68 remains available.
A Bench comprising Justice Sanjay Karol and Justice Nongmeikapam Kotiswar Singh observed that a Will ordinarily has to be proved through the testimony of an attesting witness in terms of Section 68. Resort to Section 69 is permissible only when the circumstances contemplated by that provision are first established.
The Court made the observation while setting aside a judgment of the Madras High Court which had upheld the validity of a Will by directly invoking Section 69 of the Evidence Act, without first satisfying the requirement of Section 68.
The ruling assumes significance because the law relating to proof of Wills places a special emphasis on establishing that the document was duly executed and attested by the testator in accordance with law.
Section 68 Prescribes The Ordinary Mode Of Proof
Section 68 of the Evidence Act lays down the general rule concerning proof of documents that are required by law to be attested. In the case of a Will, the propounder is ordinarily required to call at least one attesting witness to prove its execution and attestation, provided such witness is available.
This requirement is intended to ensure that the court receives direct evidence regarding the circumstances in which the Will was executed and attested.
The Supreme Court has now clarified that a party seeking to establish a Will cannot simply choose Section 69 because it may offer a different or more convenient method of proof.
In other words, Section 69 does not create an independent choice for the propounder of a Will.
Section 69 Is An Exceptional Provision
Section 69 becomes relevant when the statutory conditions for invoking it are satisfied. In the context of a Will, the Court clarified that it must first be established that neither of the attesting witnesses can be found.
Only after the impossibility of proving the Will through an attesting witness under Section 68 is demonstrated can the exceptional mechanism under Section 69 be employed.
The Bench explained that Section 69 of the Evidence Act is not an alternative which the propounder may freely choose. Instead, it is an exceptional mode of proof that becomes available only when proof through an attesting witness has become impossible under Section 68.
This distinction is particularly important in testamentary disputes, where the validity of a Will can have significant consequences for the distribution of a deceased person’s estate.
Supreme Court Sets Aside Madras High Court Judgment
The Supreme Court found that the Madras High Court had erred by directly relying upon Section 69 to uphold the Will without first examining whether the requirements for departing from the ordinary procedure under Section 68 had been fulfilled.
The Court therefore set aside the High Court’s judgment.
The ruling makes it clear that courts must follow the statutory sequence while examining the proof of a Will. The first question is whether an attesting witness can be produced in accordance with Section 68. If such proof has become impossible because the attesting witnesses cannot be found, the court may then consider whether Section 69 can be invoked.
The judgment therefore reinforces the importance of procedural compliance in testamentary proceedings.
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Implications For Proof Of Wills
The judgment provides an important clarification for parties seeking to establish Wills before courts. Merely producing evidence concerning the handwriting or execution of a Will may not be sufficient to bypass the statutory requirement under Section 68.
The party propounding the Will must first demonstrate why the normal method of proving attestation through an attesting witness cannot be followed.
The Supreme Court’s interpretation consequently preserves the distinction between the ordinary and exceptional modes of proof under the Evidence Act.
The decision also serves as a reminder that provisions dealing with alternative modes of evidence cannot be invoked mechanically. Where the legislature has prescribed a particular manner of proving an attested document, that procedure must ordinarily be followed unless the circumstances expressly recognised by law make compliance impossible.
Thus, the Supreme Court has firmly established that Section 69 can be invoked to prove a Will only after it is shown that proof through an attesting witness under Section 68 is impossible. The ruling places the burden on the propounder to establish the factual foundation for invoking the exceptional provision before relying upon it.
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