Chambers of Ishaan Garg
Ch. No. 217, Western Wing, District & Sessions Court, Tis Hazari, New Delhi, Delhi 110054
+91 8851742417, +91 880038616
When both attesting witnesses to a will are dead, the will can still be proved under Section 69 of the Indian Evidence Act, 1872. This section provides an alternative mechanism for proving documents when attesting witnesses cannot be found or are unavailable.
When Section 69 Applies
Section 69 becomes applicable when no attesting witness can be found. While the statute specifically mentions situations where witnesses "cannot be found," courts have extended its application to cases where witnesses are unavailable due to death, being out of jurisdiction, physical incapacity, or insanity. Since Section 68 of the Evidence Act cannot apply when both attesting witnesses are dead, Section 69 governs such situations.
Requirements Under Section 69
Section 69 imposes a twin-fold duty on the person seeking to prove the will (the propounder). The section requires proof of two essential elements:
1. Attestation Requirement: It must be proved that the attestation of at least one attesting witness is in his own handwriting
2. Testator's Signature: It must be proved that the signature of the person executing the document (testator) is in the handwriting of that person
Both these requirements must be cumulatively proved by the propounder. The proof of handwriting must be established in accordance with Section 67 of the Indian Evidence Act.
Key Difference from Section 68
The Supreme Court has clarified a crucial distinction between Section 68 and Section 69 of the Evidence Act. While Section 68 contemplates that attestation of both attesting witnesses must be proved by examining at least one attesting witness, Section 69 does not require the same.
Under Section 69, it is sufficient to prove that the attestation of one attesting witness is in his handwriting. The language of Section 69 is clear and unambiguous in this regard. As the Supreme Court noted, "in a case covered under section 69 of the Evidence Act, what is to be proved as far as the attesting witness is concerned, is that the attestation of one of attesting witness is in his handwriting".
Court's Interpretation and Standards
The Supreme Court has emphasized that Section 69 manifests a departure from the requirement embodied in Section 68. However, courts must still apply their judicial mind to evaluate the evidence presented. Even when evidence appears to conform to Section 69 requirements, the court must assess whether those requirements are actually proved.
The reliability of evidence and credibility of witnesses remains a matter for the court to consider. The court must determine whether, after considering all evidence, it believes the fact to be proved or considers its existence so probable that a prudent person would act upon it.
Practical Standards for Proof
In recent Supreme Court ruling, Moturu Nalini Kanth Vs. Gainedi Kaliprasad (Dead) through L.Rs.Decided On: 20.11.2023,Citation: MANU/SC/1240/2023, Supreme Court has clarified that it is not sufficient to merely examine a random witness who claims to have seen the attesting witness sign the will. The court must have proper evidence establishing that the attestation is genuinely in the handwriting of the attesting witness.
The Supreme Court noted that "the very purpose and objective of insisting upon examination of at least one attesting witness to the Will would be entirely lost if such requirement is whittled down to just having a stray witness depose that he saw the attesting witness sign the Will".
Legal Presumption
Section 69 contains an important presumption: once the handwriting of the attesting witness is proved, it presumes that the witness has witnessed the execution of the document. However, the section demands proof of execution in addition to attestation and does not permit execution to be inferred merely from proof of attestation.
This provision ensures that even when both attesting witnesses are deceased, a validly executed will can still be proved through proper evidence of handwriting, maintaining the integrity of the testamentary process while providing a practical solution for inheritance matters.
