Under Section 68 of the Indian Evidence Act, a concession has been made to prove and establish a Will, only by examining one attesting witness, even though the Will has to be attested by two witnesses, mandatorily. But, in his evidence, he has to satisfy the attestation of the Will by him and the other attesting witness, in order to prove that there was due execution of the Will. Sections 69 and 71 of the Indian Evidence Act is an exception to the general rule contained in Section 68 of the Indian Evidence Act. Under Section 69 of the Indian Evidence Act, if no attesting witness is found, it can be proved by other evidence 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. Section 71 of the Indian Evidence Act is to meet the situation, where it is not possible to prove the execution of a Will by calling the attesting witness, though alive, or when the attesting witnesses have been called, they deny or fail to recollect the execution of the document. In that way, Section 71 of the Indian Evidence Act is incorporated to safeguard the mandatory provisions of Section 68 of the Indian Evidence Act. Section 71 of the Indian Evidence Act is only to give assistance and come to rescue of a party who has taken steps to get attesting witness to give evidence, but he failed or such witness denied or failed to recollect the execution of the Will. This is only with a view to prove the due execution by "other evidence"
. In Indu Bala v. Mahindra Chandra, , the Hon'ble Supreme Court has laid down what is the mode of proof in order to dispel the suspicious circumstances, and how the onus lies on the propounder to explain certain circumstances. It is observed in paragraph-7 of the judgment as follows, affirming the previous decisions:
"If the propounder himself takes a prominent part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the Will might be unnatural and might cut off wholly or in part near relations.
It is also made clear in Paragraph-8, what is the suspicious circumstances which reads:
"A circumstance would be 'suspicious' when it is not normal or is not normally expected in a normal situation or not expected of a normal person.
In Kashibai v. Parwatibai, it is held, when no witnesses had deposed that the Will was signed by the deceased, in his presence or he had attested the document, it should be held, the execution of the Will was not proved, as contemplated under Section 68 of the Evidence Act. The Hon'ble Supreme Court has also considered Section 63 of the Indian Succession Act, as well as Section 68 of the Indian Evidence Act, including the definition for attestation as well as execution, wherein it is observed:
"A reading of Section 68 will show that 'attestation' and 'execution' are two different acts one following the other. There can be no valid execution of a document which under the law is required to be attested without the proof of its due attestation and if due attestation is also not proved, the fact of execution is of no avail. Section 63 of the Indian Succession Act, 1925 also lays down certain rules with regard to the execution of unprivileged Wills. Clause (c) of Section 63 provides that the Will shall be attested by two or more witnesses, each one of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark or the signature of such other person; and each of the witnesses should sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time and no particular form of attestation shall be necessary."
A Division Bench of this Court in Ammu Balachandran v. O.T. Joseph, , while considering the suspicious circumstances, viz., that some pages of the Will were not signed by the testator, has taken the view that one signature on the last sheet, made with the intention of executing the Will is sufficient. The Division Bench has observed, that Section 63 of the Indian Succession Act only says that the signature or mark of the testator or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as Will. The signature or mark of the testator can be either at the commencement or at the end, but it must be so placed that it shall appear that it was intended to give effect to the instrument as a Will. It is further observed, where the other side alleges undue influence, fraud or coercion, it is for them to prove the ingredients and satisfy the Court that the document produced in Court is defective for those reasons. Further, it is said, delay in propounding the Will also, may be considered as one of the suspicious circumstances and considering this point, it is held, that even if there is any delay, if the same is properly explained, that cannot be treated as a suspicious circumstance for denying a probate.