The Supreme Court has clarified that to prove a Will, it is mandatory under Section 68 of the Indian Evidence Act to examine at least one attesting witness, regardless of whether the dispute involves contesting legal heirs.
A bench comprising Justices Aravind Kumar and Sandeep Mehta delivered this ruling in a case concerning a property dispute between two brothers.
Case Background
The plaintiff-respondent claimed ownership of the property based on a series of documents, including an Agreement to Sell, a General Power of Attorney, an affidavit, a receipt, and a registered Will executed by his father in 1996. He alleged that his brother, Ramesh Chand (defendant-appellant), was initially occupying the premises as a licensee but later sold a portion of the property to a third party without lawful authority.
The appellant, on the other hand, argued that the property had been orally gifted to him in 1973 and that he had been in possession ever since. He contested the validity of the plaintiff’s documents and sought a declaration of ownership.
The Delhi High Court, in its ruling, held that the failure to examine an attesting witness to the Will was not fatal, as the dispute did not involve contesting legal heirs and the appellant was claiming ownership through an independent oral transfer.
Supreme Court’s Ruling
The Supreme Court disagreed with the High Court’s reasoning. Justice Aravind Kumar, authoring the judgment, observed:
“Section 68 does not create any exceptions based on who is opposing the Will or the nature of their claim. Its mandate applies universally to every Will that is brought before a court of law.”
The Court held that the examination of at least one attesting witness is an essential requirement and cannot be dispensed with simply because the dispute arises between non-legatees. It set aside the High Court’s observation that the requirement applies only when disputes arise among legal heirs.
Key Takeaway
The ruling reinforces that Section 68 of the Evidence Act applies uniformly to all cases where a Will is relied upon, ensuring the authenticity of such documents through mandatory attestation proof
