Examination of attesting witness is mandatory only where genuineness or validity of Will is questioned: Madras HC

Read Judgment: Malliga vs. P. Kumaran

Pankaj Bajpai

Chennai, March 25, 2022: Observing that a Will has to be proved only in accordance with Section 68 to 70 of the Indian Evidence Act, the Madras High Court after referring to various judgments of the Apex Court and other High Courts, has clarified that examination of attesting witness is mandatory only where the genuineness or validity of the Will is questioned. 

The Single Judge N. Anand Venkatesh opined that the Courts had erred in acting upon the Will without the same being proved as per the mandate prescribed under the Evidence Act and both the Courts erroneously acted upon the Will merely based on the stand taken by the defendant.

The observation came pursuant to a suit by plaintiff/respondent seeking a suit seeking for the relief of partition of the suit properties and for allotment of half share in favour of the plaintiff.

Going by the background of the case, the properties were originally owned by Chinnadurai Mudaliar through a registered sale deed, who executed a Will and bequeathed the property in favour of the Male heirs of his nephews Purusothaman and Murugesa Mudaliar. The plaintiff is the son of Purusothaman and the defendant is the wife of Murugesa Mudaliar. After the death of Chinnadurai Mudaliar, the property was jointly enjoyed by Purusothaman and Murugesa Mudaliar. Thereafter, the plaintiff was born in the year 2003 and the father of the plaintiff viz., Purusothaman went to madras for his avocation and requested Murugesa Mudaliar to give his share in the cultivation that is made in the property. Later, Murugesa Mudaliar died and the defendant took possession of the suit property and was harvesting the crops. It is alleged that she did not give any share to the father of the plaintiff.

The Plaintiff on attaining majority approached the defendant and requested to give half share in the suit property as per the Will. The defendant refused to give any share to the plaintiff. In the meantime, the plaintiff also applied for a joint patta and joint patta was issued in his name through proceedings. Even thereafter, the defendant was not willing to give the share of the plaintiff. Left with no other alternative, the suit was filed seeking for the relief of partition and allotment of half share in the suit property.

The defendant filed a written statement taking a defence that Chinnaduari Mudaliar and Purusothanam orally sold their entire share to the defendant in the year 1989 and consequently, the defendant was in possession and enjoyment of the suit property. She was also paying the kist and tax receipts were issued in her name. She completely denied the right of the plaintiff in the suit property. On appreciation of oral and documentary evidence, the Courts concurrently held against the defendant and the suit was decreed. Aggrieved by the same, the defendant has filed this second appeal. 

After considering the submissions, Justice Venkatesh found that both the courts had admitted the Will in evidence and acted upon the same, only on the ground that the defendant did not dispute the availability of the Will.

Insofar the Will is concerned, the Evidence Act prescribes the manner in which a Will should be proved u/s 68 of the Act, added the Single Judge. 

Justice Venkatesh observed that Section 68 of the Evidence Act only provides for an exception under the proviso to the said Section wherein it is specifically provided that it shall not be necessary to call an attesting witness in proof of execution of any document, “not being a Will”, which has been registered in accordance with the provisions of the Indian Registration Act, unless its execution by the person by whom it purports to have been executed is specifically denied. 

“The suit itself was filed only based on the Will executed by Chinnaduari Mudaliar. The plaintiff did not plead any other case to derive the source of his right in the suit property other than the Will marked as Ex.A6. Therefore, there is no occasion for this Court to consider any other alternative source of right in the absence of pleadings and evidence available on record”, added the Single Judge.