• Section 69 Indian Evidence Act

Please give case laws of SC or Allahabad HC supporting Sec 69 of Indian Evidence Act , where both attesting witnesses of a registered will are either dead or are not available, or have turned hostile.
Asked 6 years ago in Property Law
Religion: Hindu

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8 Answers

Mohd. Mohideen v/s Muthukumara Thevar 

Madras High court.

But this will not help you in case where the attesting witness has turn hostile. 

Mohit Kapoor
Advocate, Rohtak
10686 Answers
7 Consultations

Can be done 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.

Yogendra Singh Rajawat
Advocate, Jaipur
23081 Answers
31 Consultations

Sir section 69 is law itself in case the witness is not available the signature in his hand writing can be checked along with the signature of the testator.

The Court, while granting probate of the will, must take into consideration all relevant factors. It must be found that the will was product of a free will. The testator must have full knowledge and understanding as regards the contents thereof. For the said purpose, the background facts may also be taken note of. Where, however, a plea of undue influence was taken, the onus wherefor would be on the objector and not on the offender. {See Savithri & Ors. v. Karthyayani Amma & Ors. [JT (2007) 12 SC 248]} 

 

https://www.advocatekhoj.com/library/judgments/index.php?go=2008/april/207.php

 

In case of hostile there has to be other majors taken.

Shubham Jhajharia
Advocate, Ahmedabad
25513 Answers
179 Consultations

the attesting witnesses are really dead the plaintiffs can very well prove the will by resorting to Section 69 of the Indian Evidence Act by examining one of the persons who has acquaintance with the signature of any one of the attesting witnesses and also the executant of the document. Before resorting to the provision under Section 69 of the Indian Evidence Act to prove the will, it must be established by the plaintiffs the factum of death of attesting witnesses. Mere pleading in the plaint as to their death itself is not sufficient for establishing the factum of the death of the attesting witnesses. The plaintiff ought to have filed death certificates of the concerned attesting witnesses to prove their alleged death.

Ajay Sethi
Advocate, Mumbai
99784 Answers
8145 Consultations

Madras High Court

Raniammal vs A.Saroja

Mohammed Mujeeb
Advocate, Hyderabad
19325 Answers
32 Consultations

It can be proved by proving the signature of the testator it's difficult but not impossible. 

Prashant Nayak
Advocate, Mumbai
34520 Answers
249 Consultations

the section itself is clear

why you need judgments for the same

if the attesting witnesses are dead, then the propounder of the Will can rely on the evidence of any other person who has knowledge about the testator signing the Will

if the witnesses turn hostile then the propounder has to simply apply to the court for issuing witness summons to such witnesses

Yusuf Rampurawala
Advocate, Mumbai
7899 Answers
79 Consultations

In the event that no such attesting witness is alive or can be found, then as per section 69 of the Indian Evidence Act, 1872, the Will has to be proved by proving the signature of the testator as well as that of at least one attesting witnesses.

Section 69 in The Indian Evidence Act, 1872

69. Proof where no attesting witness found.—If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.

 

Supreme Court of India

Babu Singh & Ors vs Ram Sahai @ Ram Singh on 30 April, 2008

Author: S Sinha

Bench: S.B. Sinha, V.S. Sirpurkar

T Kalaiselvan
Advocate, Vellore
89986 Answers
2493 Consultations

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