M.B. Ramesh (D) By LRS vs. K.M. Veeraje Urs (D) By LRS. & Ors, Civil Appeal No. 1071
OF 2006 (Decided on May 3rd, 2013)
The Court held:
“A Will, has to be
executed in the manner required by S 63 of the Succession Act. Section 68 of
the Evidence Act requires the will to be proved by examining at least one
attesting witness. Section 71 of the Evidence Act is another connected section
“which is permissive and an enabling section permitting a party to lead other
evidence in certain circumstances” as observed by this Court in paragraph 11 of
Janki Narayan Bhoir Vs. Narayan Namdeo Kadam reported in 2003 (2) SCC 91 and in
a way reduces the rigour of the mandatory provision of Section 68. As held in
that judgment Section 71 is meant to lend assistance and come to the rescue of
a party who had done his best, but would otherwise be let down if other means
of proving due execution by other evidence are not permitted. At the same time,
as held in that very judgment the section cannot be read to absolve a party of
his obligation under Section 68 of the Evidence Act read with Section 63 of the
Succession Act to present in evidence a witness, though alive and available.”
[Para 16]
“As stated by this Court
also in R. Venkatachala Iyengar and Smt. Jaswant Kaur (both supra), while arriving
at the finding as to whether the will was duly executed, the Court must satisfy
its conscience having regard to the totality of circumstances. The Court’s role
in matters concerning the wills is limited to examining whether the instrument
propounded as the last will of the deceased is or is not that by the testator,
and whether it is the product of the free and sound disposing mind [as observed
by this Court in paragraph 77 of Gurdev Kaur Vs. Kaki reported in 2006 (1) SCC
546]”. [Para 24]
The
court also noted following case law
Vishnu Ramkrishana Vs. Nathu Vithal reported in [AIR 1949 Bombay
266], in which case the Court remanded the matter for additional evidence under
its powers under Order 41 Rule 27 CPC. It observed:
“15……… We are dealing with the case of a will and we must
approach the problem as a Court of Conscience. It is for us to be satisfied
whether the document put forward is the last will and testament of Gangabai. If
we find that the wishes of the testatrix are likely to be defeated or thwarted
merely by reason of want of some technicality, we as a Court of Conscience
would not permit such a thing to happen. We have not heard Mr. Dharap on the other
point; but assuming that Gangabai had a sound and disposing mind and that she
wanted to dispose of her property as she in fact has done, the mere fact that
the propounders of the will were negligent – and grossly negligent in not complying
with the requirements of S. 63 and proving the will as they ought to have
should not deter us from calling for the necessary evidence in order to satisfy
ourselves whether the will was duly executed or not………..
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