Proof of Will: Section 68 IEA vs Section 58 Admissions

The general mandate of Section 68 of the Indian Evidence Act (Section 67 of the Bharatiya Sakshya Adhiniyam, 2023) and the equally compelling logic of Section 58 (Section 53, BSA), which declares that facts admitted need not be proved. The contention of the defendant, raised for the first time at the stage of arguments and not embodied in the written statement, cannot survive judicial scrutiny. Here is the Order that the court should pass:

ORDER

In the Court of the ...................................O.S. No. ......... of ..........

Plaintiff: ......................... vs. Defendant: .........................

This matter came up for hearing on the contention raised by the learned counsel for the defendant at the stage of arguments that the Will produced by the plaintiff has not been formally proved, inasmuch as at least one attesting witness — who is admittedly alive — has not been examined for the purpose of proving the execution of the Will. The argument is that Section 68 of the Indian Evidence Act, 1872 (corresponding to Section 67 of the Bharatiya Sakshya Adhiniyam, 2023) is a mandatory provision and that Section 68 applies with equal force to all wills, whether registered or not, and that no exception can be carved out for the will even when its execution is not disputed in the written statement.

The contention is rejected. Reasons follow.

The Statutory Framework

Section 68 of the Indian Evidence Act, 1872 — reproduced without change as Section 67 of the Bharatiya Sakshya Adhiniyam, 2023 — reads as follows: 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, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. The proviso to this section, introduced by Act XXXI of 1926, carves out an important exception: it is not 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, unless its execution is specifically denied.

Reading this proviso, the defendant's counsel argues that the proviso expressly excepts a will from its beneficial operation, and that therefore, even for a registered will, an attesting witness must always be called. At first blush, the argument has a superficial force. But it collapses upon a closer examination of the statutory scheme.

The Central Question: Does Section 68 Operate Where No Proof is Required?

The key to resolving this controversy lies in identifying what Section 68 actually does. The section is not a provision that determines what facts must be proved; it is a provision that prescribes the mode of proof of a specific category of documents — those required by law to be attested. As was held in a line of decisions, Section 68 relates to those documents which require to be proved at the trial of a suit. If, by any rule of law or of pleadings, such proof is not required, Section 68 cannot operate to insist on formal proof by calling an attesting witness.

This is not a novel or uncertain proposition. It flows directly from the combined reading of Section 68 with Section 58 of the Indian Evidence Act, 1872 (Section 53, BSA 2023), which provides that facts admitted need not be proved, though the court in its discretion may require that the facts admitted be proved otherwise than by such admission.

A Division Bench of the Kerala High Court articulated this principle with clarity in Thayyullathil Kunhikannan v. Thayyullathil Kalliani (AIR 1990 Kerala 226). The court held that Section 58 must be read as overriding Section 68, and as obviating the necessity of calling an attesting witness, unless the execution of the will or the attestation is in dispute. The learned Division Bench reasoned that Section 68 deals with the proof of documents that need to be proved at trial. If no issue has been joined on the question of execution or attestation — if neither has been specifically denied in the pleadings — Section 68 is simply not engaged, because there is nothing to prove. This decision of the Kerala High Court was approvingly noticed and followed by the Delhi High Court in Neelam Sahgal alias Nellu Sahgal v. Seema Mehra (2017 SCC OnLine Del 8743).

The reasoning is compelling. Order VII Rule 5 of the Code of Civil Procedure, 1908 deems the execution of a document mentioned in the plaint to be admitted in the absence of any denial in the written statement. When the defendant does not specifically deny the execution of the Will in his written statement, execution stands admitted by operation of this rule. Where a fact stands admitted, proof of that fact by any mode — including by calling an attesting witness — becomes unnecessary.

The Written Statement Is the Touchstone

The entire factual matrix before this court points in only one direction. The defendant's written statement does not deny the execution of the Will. The defendant has pleaded revocation of the Will during the testator's lifetime — which is a different and entirely separate plea. A plea of revocation implies acknowledgment that the Will was executed; it concedes the fact of execution and merely asserts that the Will was subsequently cancelled. It is impossible for a party to simultaneously admit the existence and execution of a Will and to contend that it was revoked, while at the same time denying that the Will was ever executed.

The contention now raised at the stage of arguments — that the Will is not properly proved because an attesting witness has not been examined — is not only legally unsustainable but is also procedurally impermissible. This court is not persuaded that a party may, having not specifically denied execution in the written statement and having, by necessary implication, admitted the execution through the plea of revocation, turn around at the stage of final arguments to raise the spectre of non-proof. To permit this would, as the Kerala High Court aptly observed, be "the height of technicality and a waste of judicial time."

This position finds further support in the specific direction given by the Supreme Court in H. Venkatachala Iyengar v. B.N. Thimmajamma (AIR 1959 SC 443), where the court examined the requirements of proving a will under Sections 67 and 68 of the Evidence Act. The court held that while Section 68 requires proof of execution by an attesting witness, this requirement is conditioned upon the circumstances of each case. Where the propounder proves execution and there are no suspicious circumstances, the court must deal with the matter on the basis of the pleadings and the evidence before it.

The Scope of the Proviso — A Correct Reading

It is important to address the defendant's reliance on the proviso to Section 68. The proviso certainly carves out wills from its beneficial operation — even a registered will is not covered by the proviso, and therefore its registration alone does not dispense with the requirement of calling an attesting witness, if the will is otherwise required to be proved. But the proviso only speaks to the relationship between registration and the requirement of calling an attesting witness. It does not speak to the situation where the will is not in dispute at all. The proviso has no occasion to apply when there is no dispute as to execution, because Section 68 itself is not attracted.

In other words: the proviso grants an advantage to registered non-will documents even where execution is in dispute. The absence of wills from the proviso does not mean that wills must always be formally proved by an attesting witness in every conceivable situation. It only means that the registration of a will cannot substitute for the examination of an attesting witness when the will is required to be proved. Where there is nothing to prove — because the parties have not joined issue on the question — the entire machinery of Section 68 lies dormant.

It must also be borne in mind that the scope of Section 68 is carefully circumscribed: "This section applies only where the execution of a document has to be proved or when the allegation is that the executant was not in a fit state of mind to know the real nature of the document." Where the execution is not to be proved, it is not necessary to call any attesting witness.

The Plea of Revocation — A Distinct Issue to Be Tried

The defendant's plea that the testator had revoked the Will during his lifetime is a distinct and severable issue from the proof of the Will. A plea of revocation must be specifically pleaded and proved by the defendant. The mode of revocation of a will is governed by Section 70 of the Indian Succession Act, 1925, which provides that a will may be revoked by another will or codicil, or by some writing declaring an intention to revoke, or by burning, tearing or destroying the will. The defendant, who asserts revocation, carries the burden of establishing this plea with evidence. The existence and execution of the Will having been admitted — as it necessarily is when the plea is one of revocation — the plaintiff's Will stands as an uncontested documentary foundation for his claim.

The Order

For the foregoing reasons, the contention of the defendant raised at the stage of arguments that the Will is not properly proved for want of examination of an attesting witness is hereby rejected.

The Will, duly produced as a certified copy and forming the documentary basis of the plaint, need not be formally proved by examining an attesting witness, for the reason that:

The defendant has not specifically denied the execution of the Will in his written statement. Execution is therefore deemed to have been admitted under Order VII Rule 5 of the CPC.
Section 58 of the Indian Evidence Act, 1872 (Section 53, BSA 2023) declares that facts admitted need not be proved, and it must be read as overriding Section 68 in cases where the execution of the Will is not in dispute.
The defendant's own plea of revocation presupposes the execution of the Will and is inconsistent with any denial of its execution.
Section 68 applies only where the execution of a document is required to be proved at the trial. No issue having been joined on execution, Section 68 is not attracted.
The case will, accordingly, proceed to trial on the only issue that survives: whether the Will was validly revoked during the testator's lifetime, as pleaded by the defendant. The burden of proving revocation lies on the defendant.