Evidence Law - Litigating Hand

Babu Singh and Ors. vs. Ram Sahai [AIR 2008 SC 2485]: Supreme Court of India

When genuineness of a Will is in question, apart from execution and attestation of Will, person averring validity of the Will to dispel the surrounding suspicious circumstances

‘Attestation’ and ‘execution’ connote two different meanings. Some documents do not require attestation. Some documents are required by law to be attested.

11. In terms of Section 68 of the Act, although it is not necessary to call more than one attesting witness to prove due execution of a Will but that would not mean that an attested document shall be proved by the evidence of one attesting witness only and two or more attesting witnesses need not be examined at all. Section 68 of the Act lays down the mode of proof. It envisages the necessity of more evidence than mere attestation as the words ‘at least’ have been used therein. When genuineness of a Will is in question, apart from execution and attestation of Will, it is also the duty of a person seeking declaration about the validity of the Will to dispel the surrounding suspicious circumstances existing if any. Thus, in addition to proving the execution of the Will by examining the attesting witnesses, the propounder is also required to lead evidence to explain the surrounding suspicious circumstances, if any. Proof of execution of the Will would, inter alia, depend thereupon.