VASANTHI RAJAN Vs. ANU

JUDGEMENT

(1.) The main questions came up for consideration are regarding the application of Sec. 71 of the Evidence Act in contrast with the mandate under Sec. 68 of the Evidence Act and what are the requirements to be satisfied so as to make the normal procedure under Sec. 71 of the Act in proof of a testament - Will or Codicil. It is a case wherein, the deceased testator had committed suicide within hours of execution of the alleged Will, Ext.A1, which was relied on by the plaintiff as against the natural legal heirs. The trial court decreed the suit, against which, the natural heirs, the defendants therein came up in appeal.

(2.) Both the attesting witnesses to the document, PW3 and PW4 turned hostile to the alleged attestation and execution of the Will, but admitted that they stood only as introducing witnesses to the document before the Sub-Registrar. Admittedly, both the attesting witnesses, PW3 and PW4 were acting under the instruction of PW7, the scribe as they were the employees under him. PW3 is a neighbour of the testator, but did not say anything about the required animus attestandi to stand as an attesting witness to the testament of the deceased. PW4 admittedly is a total stranger employed at the office of PW7, the scribe. They were not acting under the instruction of the testator, but on the instruction given by PW7, the scribe and signed on the document only as introducing witnesses.

(3.) When both the witnesses turned hostile by denying the due attestation, the propounder who is bound to prove the Will in accordance with the mandate under Sec. 68 of the Evidence Act, would stand reverted back to the normal rule of proof of a document in contrast with the requirement under Sec. 68 of the Act, for which, the legislature has incorporated Sec. 71, a succeeding provision so as to enable the propounder to prove the document in accordance with the normal rules. In short, Sec. 71 of the Evidence Act and the requirement thereunder may not have the nature of an exception carved out of Sec. 68 of the Act, but it is a dependent provision and would become operative only when it has become impossible to prove the testament in accordance with the mandate under the special provision - Sec. 68 of the Act. The corollary is that the mere summoning of one of the attesting witnesses in proof of the testament, who turned hostile to the due execution alone is not sufficient to make the succeeding provision - Sec. 71 of the Indian Evidence Act operative, for which, the propounder has to show that it has become impossible to prove the testament under the special provision - Sec. 68 of the Act. For that purpose, all the attesting witnesses, who are capable of giving evidence and subject to the process of court and alive at that time shall be summoned and examined in proof of due execution. Sec. 71 would operate only when all such witnesses, who are alive and capable of giving evidence and subject to the process of court were summoned and examined in proof of due execution and all of them turned hostile or the propounder could not procure their presence for valid reason including inability to give evidence or on account of their death by that time. A mere examination of one among them will not relieve the propounder from his liability under the special provision - Sec. 68 of the Act and cannot be permitted to take a safe haven under the umbrella of Sec. 71 of the Act by "other evidence", in contrast with the requirement under the said special provision. The expression "other evidence" incorporated under Sec. 71 of the Act would cover all the requirements under Sec. 63 of the Indian Succession Act, including clause (c) for establishing the due attestation and execution including the necessary animus attestandi possessed by the attesting witnesses. But the proof to be furnished under Sec. 71 of the Evidence Act would stand more on preponderance of probabilities in contrast with the requirement as mandated under Sec. 68 of the Act. In other words, the rule of evidence will acquire necessary flexibility under Sec. 71 of the Act in contrast with the rigorous and rigid nature embodied under Sec. 68 of the Act. Mere preponderance of probability regarding the due execution and attestation with all necessary mental element would be sufficient to discharge the initial onus on the propounder when the matter is brought under the purview of Sec. 71 of the Act. The mental element of attesting witness can also be gathered even by preponderance of probability. In fact, Sec. 68 of the Act and the mandate therein would stand negated when it has become impossible to prove the testament by virtue of that Sec. and thereafter, the parties would stand governed by the normal rule of evidence engrafted under Sec. 71 of the Act i.e., proof by "other evidence".