Chinnadurai Mudaliar executed a will in favour of the Male heirs of his nephews. Later wife (Appellant) after taking possession refused to give the share of property to sons of nephew.
(i) Whether Will can be accepted only based on the admission made by the defendant without the same being proved in accordance with Section 68 of the Indian Evidence Act ?
The High Court also made following observations on the law regarding admissibility of a will:
(i) In so far the Will is concerned, the Evidence Act prescribes the manner in which a Will should be proved under Section 68 of the Act.
(ii) A person who wants to rely upon a Will has to necessarily prove the Will only in accordance with Section 68 of the Act. In the absence of attesting witness, the Will has to be proved in accordance with Section 69 and 70 of the Evidence Act.
(iii) The Court relied on Jagadish Chand Sharma v. Narain Singh Saini (Dead) and observed that it is clear from the proviso to Section 68, that the exception is available for any other documents other than a Will. In other words, a Will has to be proved only in accordance with Section 68 to 70 of the Indian Evidence Act.
What dose section 100 say ?
Section 100 of the Code of Civil Procedure, 1908 – Appeal allowed if the High Court is satisfied that the case involves a substantial question of law.
What section 68 of IEA mandate ?
Section 68 of the Indian Evidence Act, 1872 deals with proof of execution of document required by law to be attested.
As per the provision, if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution,
ü if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
ü Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.
What section 69 says ?
Section 69 of the Indian Evidence Act, 1872 deals with proof where no attesting witness found.
As per the provision, if no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the hand writing of that person.
What section 70 says ?
Section 70 of the Indian Evidence Act, 1872 deals with admission of execution by party to attested document. As per the provision, the admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested.
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