S.70 BSA Cannot Dilute Mandatory Provisions For Proving A 'Will' Laid Down U/S 63(c) Indian Succession Act: Kerala High Court

Justice M.A. Abdul Hakim clarified the position of law while hearing a second appeal and observed that:

“When one of the attesting witnesses is examined, and he denies or does not recollect the execution of the document, the second attesting witness is to be examined if he is alive and capable of giving evidence. If the second attesting witness also denies or does not recollect the execution of the document, the propounder can resort to the aid of Section 70 of the BSA. If the attesting witness deposes that he has seen the testator signing the document, but his evidence is deficient to prove compliance with Section 63(c) of the Indian Succession Act, such deficiency could not be filled up by resorting to Section 70 of the BSA.”

One of the substantial questions of law for consideration of the Court was whether the genuineness of the Will could be established in the circumstances in Section 71 of the IEA/ Section 70 of the BSA.

Answering the questioning in the affirmative, the Single Judge set aside the concurrent findings of the trial court and the first appellate court, and found that in the present case, the 'other evidence' as required under Setion 70 of the BSA can be used to prove the Will since the attesting witnesses had denied the execution of the same.

The Court reiterated the settled position that when the requirements under Section 63(c) of the ISA is not met through the evidence of the attesting witness, the court can, by assessing the evidence, conclude whether there is a mala fide intention on the said witness purposefully to the help the objectors of the Will.

The Court also held that the evidence given by a witness cannot be discarded merely because he is a beneficiary of the Will, and it can be relied on if it is natural and reliable. The Court found that the evidence of the beneficiary of the Will can constitute as 'other evidence' for the purpose of Section 71 Evidence Act or the corresponding Section 70 BSA.

Finding that the courts below were not justified in ignoring the registration of the Will as proof as envisaged under the proviso to Section 68 of the Evidence Act, the Court relied on the presumption under S. 114(e) of the Act to find that the Will was duly executed in the present case even though normally, registration is not to be used as proof.

Case No: RSA No. 159 of 2011

Case Title: P.D. Parameswaran Pillai and others v. T.N. Ramachandran Nair and others

Citation: 2025 LiveLaw (Ker) 278

Counsel for Appellants: Sri. M. Narendra Kumar, Smt. Laya Simon & Sri. P.B. Pradeep

Counsel for Respondents: Sri. Varghese Prem