When seeking probate or letters of administration with a will, proving the will typically requires an affidavit from at least one attesting witness, as mandated by Section 63 of the Indian Succession Act, 1925, and Section 67 of the Bhartiya Sakshya Adhiniyam, 2023. However, if both attesting witnesses are deceased, untraceable, or unable to provide evidence, Section 68 of the BSA offers an alternative. In such circumstances, the will can be proven by demonstrating that the attestation of at least one witness is in their handwriting and that the testator’s signature is in their handwriting. Supreme Court judgments, such as in the Kalyanaswamy and Babu Singh cases, have clarified the scope of “cannot be found” under Section 68 and confirmed that this section allows for proving the will by identifying the handwriting of one attesting witness and the testator, dispensing with the requirement to prove attestation by both witnesses when they are unavailable.
At the time of filing for probate or letters of administration (with will), an affidavit of at least one attesting witness is required to prove the will. This legal requirement arises from a conjoint reading of Section 63 of the Indian Succession Act, 1925 (“Section 63”) and Section 67 (“Section 67”) of the Bhartiya Sakshya Adhiniyam, 2023 (“BSA”). Section 63 requires that a will must be attested by at least two witnesses and Section 67 inter-alia requires that if a document is required by law to be attested, it shall not be used as evidence until at least one attesting witness has been called for the purpose of proving its execution. However, a situation may arise when both attesting witnesses have died, cannot be found or are incapable of giving evidence. In such a situation, how does one prove of the will of the deceased?
Section 68 of the BSA (“Section 68”) provides that if no such witness can be found, it must be proved that the attestation of at least one attesting witness is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person. In the case of Kalyanaswamy v. Bakthavatsalam[1], [(2021) 16 SCC 543], the Supreme Court expounded on the meaning of the word ‘found’ in the context of Section 68.
“107. As far as the expression “found” is concerned, it would cover a wide variety of circumstances. It would cover a case of an incapacity to tender evidence on account of any physical illness. It would certainly embrace a situation where the attesting witnesses are dead. Should the attesting be insane, the word “found” is capable of comprehending such a situation as one where the attesting witness, though physically available, is incapable of performing the task of proving the attestation under Section 68 of the Evidence Act, and therefore, it becomes a situation where he is not found.”
In Babu Singh v. Ram Sahai[2], the Supreme Court expounded the scope of Section 69 of the Evidence Act, 1872 (which now corresponds to Section 68) as follows.
“17. It would apply, inter alia, in a case where the attesting witness is either dead or out of the jurisdiction of the court or kept out of way by the adverse party or cannot be traced despite diligent search. Only in that event, the will may be proved in the manner indicated in Section 69 i.e. by examining witnesses who were able to prove the handwriting of the testator or executant. The burden of proof then may be shifted to others.”
In Kalyanaswamy[3], the Supreme Court further held:
“116. We are of the view that Section 69 of the Evidence Act manifests a departure from the requirement embodied in Section 68 of the Evidence Act. In the case of a will, which is required to be executed in the mode provided in Section 63 of the Succession Act, when there is an attesting witness available, the will is to be proved by examining him. He must not only prove that the attestation was done by him but he must also prove the attestation by the other attesting witness…”
117. In other words, in a case covered under Section 69 of the Evidence Act, the requirement pertinent to Section 68 of the Evidence
Act that the attestation by both the witnesses is to be proved by examining at least one attesting witness, is dispensed with…
The language of the section is clear and unambiguous. Section 68 of the Evidence Act, as interpreted by this Court, contemplates attestation of both attesting witnesses to be proved. But that is not the requirement in Section 69 of the Evidence Act.”
What emerges from the above is that if both attesting witnesses have died or cannot be found as provided in Section 68, the will will have to be proved by examining a witness who can identify the signature of at least one attesting witness and the signature of the testator or testatrix being in his/her handwriting.
Notes:
[1] [(2021) 16 SCC 543]
[2] [(2008) 14 SCC 754]
[3] Supra