The Delhi High Court in a recently reported decision [ANITA KHOSLA v. STATE 2010 173 DLT 290] has declared that one witness was sufficient in order to determine the validity of a will. The Court held that it was not obligatory to examine both the witnesses to a will to come and testify in order to determine the genuineness of a will. Arriving at this conclusion, the Court quoted the provisions of the Indian Evidence Act to declare that the Indian law departed significantly with the English law in this regard.
The Court declared inter alia as under;
12. It was contended by the learned counsel for the objectors that since PW-2 and PW-3 did not sign in the presence of each other, there was no proper execution of the Will. I, however, find no merit in the contention. The evidence on record does not show that PW-2 was not present when the Will was attested by PW-3 or that PW-3 was not present when it was attested by PW-2. In fact, their affidavits indicate that both of them were present together when the Will was first signed by the Testator and then by these witnesses. Moreover, a bare perusal of Section 63(c) of Indian Succession Act would show that a Will is required to be attested by two or more witnesses and each of them must have seen the Testator sign or affixing his mark to the Will or should have seen some other person signing the Will in the presence and under the directions of the Testator or should have received a personal acknowledgement from the Testator with respect to his signature or mark or signature of the another person who signs the Will in the presence and under the direction of the Testator and it is also necessary that each witness should sign the Will in the presence of the Testator. This, however, is not the requirement of law in India that both the attesting witnesses should also sign in the presence of each other.
13. Though the English law requires that both the witnesses must be present at the same time and both must see the Testator execute the documents as his Will, the Indian law expressly lays down to the contrary by providing in clause 6(c) of Section 63 that “it shall not be necessary that more than one witness be present at the same time.” In fact, it is also not necessary that all the witnesses must see the Testator sign. It may as well happen that one witness may see the executor sign and the other witness may not see him sign, but the Testator may acknowledge his signature before him.
14. There are number of modes of proving signature or writings of persons, such as, by calling the person who signed or wrote the document; by calling a person in whose presence the document was signed or written; by calling a handwriting expert; by calling a person acquainted with the handwritings of the person by whom the document is supposed to be signed or written; by comparison in Court of the disputed signatures or writings with some admitted signatures or writings; by proof of an admission by the person, who is alleged to have signed or written the document that he signed or wrote it, etc.
In case the document happens to be a Will, there is a slight distinction, which has to be kept in mind. Unlike other documents, the Will speaks from the death of the Testator, and so, where it is propounded or produced before a Court, the Testator who has already departed the world cannot be called upon to say whether it is his will or not.
15. Section 68 of Evidence Act, to the extent, it is relevant, provides 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 if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.” Since the Will is a document required by law to be attested by at least two witnesses, the petitioner could have proved it by producing one of the attesting witnesses of the Will. The petitioner has duly proved execution of the Will dated 02nd April, 2003, by producing not one, but both the attesting witnesses to the Will.
16. In Madhukar D. Shende vs Tarabai Aba Shedage 2002 (2) SCC 85 Supreme Court inter alia observed as under:-
“It is well settled that one who propounds a will must establish the competence of the testator to make the will at the time when it was executed. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the will in the manner contemplated by law. The contestant opposing the will may bring material on record meeting such prima facie case in which event the onus would shift back on the propounder to satisfy the Court affirmatively that the testator did know well the contents of the will and in sound disposing capacity executed the same. The factors, such as the will being a natural one or being registered or executed in such circumstances and ambience, as would leave no room for suspicion, assume significance. If there is nothing unnatural about the transaction and the evidence adduced satisfies the requirement of proving a will, the Court would not return a finding of "not proved" merely on account of certain assumed suspicion or supposition. Who are the persons propounding and supporting a will as against the person disputing the will and the pleadings of the parties would be relevant and of significance.”
17. In Girja Datt Singh vs Gangotri Datt Singh AIR 1955 SC 346, it was held that in order to prove the due attestation of the will the propounder of the will has to prove that the two attesting witnesses saw the Testatory sign the will and that they themselves signed the same in the presence of the testator. As regards the proof and attestation, reference was made to Section 68 of the Evidence Act and it was held that it is necessary to comply with the provisions of the Evidence Act to prove the due execution and attestation of the will by calling at least one attesting witness in case he is alive and one cannot presume from the mere signatures appearing at the foot of the endorsement of registration or at the foot of the document that the witnesses appended their signatures to the documents as attesting witnesses.
18. In the present case, the petitioner has discharged the onus placed upon her by producing evidence to prove the testamentary capacity of the testator as well as execution of the Will in the manner prescribed by Section 63 the Indian Succession Act. No material has been brought on record by the Objectors which would create suspicion on the execution of the Will, which otherwise is a registered document and also bears the signature of the testators. There is no material from which the Court may infer that the deceased did not know the contents of the Will or was not in a sound disposed capacity when she executed this Will on 2nd April 2003. In fact, no evidence at all has been produced by the Objectors to rebut the evidence produced by the petitioner.
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