Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.
Section 68 applies to the cases where the execution of document has to be proved. It deals with proof of document which is required by law to be attested. A document of which the execution is required by law to be attested means “a document, the signature upon which should be put in the presence of two witnesses who themselves add their signatures and addresses in proof of the fact that the document was signed in their presence.” According to this section where a document is required by law to be attested it cannot be used in evidence until at least one witness, if alive, has been called for the purpose of proving its execution. The witnesses present are called attesting witness.
The section further provides that no attesting witness is to be called for where the document to be proved is a registered one and is not a will, and also the execution of the document is not specifically denied by the person executing it. More than one attesting witness may be necessary to prove a document according to the circumstances of a case.
The rule under section 68 is an imperative and cannot be relaxed except as provided for. “Section 68 is imperative. Merely taking out summons and warrant against the attesting witness is not exhausting all processes of a court as contemplated by Or. 16, Rule 10.” It is nothing to do with the question about the legality or validity of the instrument itself as an effective document of title, if there has been no proper attestation as required by law.
Execution means “the party by affixing his signature or mark has signified his assent to the contents of the document”. It consists in “signing a document written out, read over and understood.” To execute means to go through the formalities necessary for the validity of legal act. There can be no valid execution of a document which under the law is required to be attested, without proof of its due attestation and if due attestation is also not proved, the fact of execution is of no valid. The proof of execution of attested documents and provides that such document shall not used as evidence unless one attesting witness at least has been called for to prove section.
The evidence of one attesting witness is sufficient to prove the execution of the will. Execution must include both execution and attestation as without proof of the latter such documents are not legally valid. In these cases there can be no valid execution without due attestation and if due attestation is not also provided, the fact of execution is of no avail.” Settlement deed was executed by grandfather in favour of daughter’s children. Execution deed cannot be disbelieved merely on ground of non-execution of attestors. The evidentiary value of document executed by a witness who was not cross-examined, was in questioned. His evidence that he himself and attestor signed document after the executant signed it remained unrebutted. It was held that requirement under section 68 of the Evidence Act stands satisfied.
The term “attested” has not been defined in the Evidence Act. Section 3 of the Transfer of Property Act has defined the term as “a person has signed the document by way of testimony to the fact that he saw it attested.
According to Section 3 of the T.P Act “Attested in relation to an instrument, means attested by two or more witnesses, each of whom has seen the executant sign or affix his mark to the instrument or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it is not necessary that more than one of such witnesses should be present at the same time, and no particular form of attestation is necessary”.
Proof of attested document:
A document required by law to be attested will be proved by calling at least one attesting witness if he is alive and subject to the process of the court. And the witness must be capable of giving evidence. Thus the document has to be proved by examining the attesting witnesses. If no attesting witness is found, it must be proved that the attestation of one attesting witness is in his handwriting and that the signature of the executant is in the handwriting of him. The attestation of document is based on the maxim-omnia proesummuntur rite et solenniter esse acta donee probetur in contrarium.
It was held that where, of the three attesting witnesses, the one who also a scriber was examined in proof of the execution of the will, it cannot be said that attesting witnesses were not examined. If no attesting witness is alive, the document can be proved according to Sections 47 and 73 of the Act.
If the execution of document is not denied, no attesting witness needs to be called. The registration certificate furnished under section 63 of the Registration Act is sufficient. Similarly, when the mortgage deed produced without denial of execution, the attesting witness was considered not necessary. A document shall not be used as evidence unless one attesting witness at least has been called on to prove execution. Where no attesting witness was examined to prove the due execution of the will, it was held that merely by giving up one witnesses as won over would not be sufficient to prove the requirement of Section 68 of the Evidence Act.
Proof of will:
According to Section 63 of the Indian Succession Act the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as will. The section also requires that the will shall be attested by two or more witnesses as prescribed. In case of a registered will the attesting witness has to be called even if the execution is not denied. A deed of gift was admitted by the donor where one attesting witness was called and the other was not called. It was held to be proved.
There are cases in which the execution of will is surrounded by suspicious circumstances. A will in question was the last will of the deceased. Evidence of attestors was found to be reliable, but the scribe became hostile. His evidence was found to be unreliable. The profounder of the will was granted probate. There was total absence of suspencial circumstances.
A suspicious circumstance means a circumstance in which “the profounder has taken a prominent part in execution of the will and received substantial benefit under it, which it is generally treated as a suspicious circumstance attending the execution of the will and the profounder is required to remove the said suspicion by clear and satisfactory evidence”. The will was not proved because the finding was based upon suspicious and conjectures without any foundation in evidence. In suspicious circumstances surrounding execution of will the propounder must offer reasonable explanation to remove such suspicions circumstances.
The attesting witness is shown to have subscribed his signature and was neither present when document was written or he has seen the executant executing his signature. The will does not stand duly proved.
Where execution and registration of will were admitted there was credible evidence of one attesting witnesses, and defendant could not prove that the father was not in proper sense at the time of execution of will or establish any suspicious circumstances. The execution of a will cannot held to have been proved when the statutory requirements for proving the will are not satisfied.
The section provides special rule in the proviso. Under the proviso, in case of registered document, and is not a will, where its execution is not specially denied by the person executing it the calling of attesting witness is not necessary. If, on the other hand, the execution of a registered document required by law to be registered is specifically denied then the attesting witness has to be called to prove it.
Under the proviso the rigour of the rule has been relaxed to some extent. It is not necessary to call an attesting witness unless the execution of the document is “specifically denied.” Under the proviso to Section 68 the obligation to produce at least one attesting witness stands withdrawn if the execution of any such document, not being a will which is registered, is not specifically denied.
The execution and attestation of codicil must be in same manner as a will, became codicil is an instrument made in relation to will.
The registration of document as codicil or will does not dispense with need of proving execution and attestation codicil or will as per Evidence Act. The registrar of deeds cannot be “statutory attesting witness” to codicil merely by discharging duties of registration.