Stray witness deposing that he saw attesting witness sign a will is not proof of its validity: Supreme Court

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In order to prove that a will is genuine and where its attesting witnesses are not found, it is not enough to merely examine a random witness who claims that he saw the attesting witness sign the will, the Supreme Court recently held [Moturu Nalini Kanth vs Gainedi Kaliprasad].

Rather, the bench of Justices CT Ravikumar and Sanjay Kumar underscored that Section 69 of the Indian Evidence Act should be strictly complied with.

Section 69 deals with cases where the attesting witness (es) cannot be found.

In such cases, the provision says that (in order to prove the authenticity of a will) there should be proof that the attestation by at least one attesting witness is in his handwriting and that the person executing the will (executant or the testator) has signed the document in his handwriting.

“For the purposes of Section 69 of the Evidence Act, it is not enough to merely examine a random witness who asserts that he saw the attesting witness affix his signature in the Will. The very purpose and objective of insisting upon examination of at least one attesting witness to the Will would be entirely lost if such requirement is whittled down to just having a stray witness depose that he saw the attesting witness sign the Will,” the Court explained.

The Court was dealing with an appeal by one Nalini Kanth (appellant) who claimed that he was adopted by a septuagenarian woman (testator) when he was less than a year old in the 1980s and that he was entitled to a share in her property.

The alleged adoptive mother passed away three months after the purported adoption ceremony, leaving behind a freshly made will and entrusting the duty to carry out her funeral rites to her newly adopted son. As per the new will, Nalini Kanth was to inherit her property.

What followed was a challenge to this claim by the grandson of the deceased woman, who stated that he was the real claimant to the property.

The trial court ruled in favour of Kanth. However, on appeal, the High Court reversed the order and held that the adoption deed itself was not sustainable.

Kanth then challenged the High Court order before the Supreme Court.

The top court found several aspects that threw doubt on the authenticity of the will as well as Kanth’s ‘adoption.’

It found that the contents of the will appeared to have been dictated by a woman who was not the actual testator.

The scribe who transcribed the contents of the disputed will said that he did not even see the person whose will was being made, nor did he see the testator (executant/ alleged adoptive mother) sign the will. Further, the attesting witnesses were also not seen signing the document.

In this backdrop, the top court noted that Section 69 of the Evidence Act could have been made use of to prove the validity of the will. However, no witness was examined who was familiar with the signature of either of the attesting witnesses or who could vouch for the same or produce an admitted signature before the trial court.

“The contention that Section 69 of the Evidence Act does not require actual proof of the handwriting of at least one attesting witness and proof of the signature of the executant being in that person’s handwriting cannot be accepted,” the Court added.

Moreover, the adoption itself was thrown into doubt on account of various discrepancies.

The top court emphasised that an actual act of “giving and taking” of the child in adoption is an essential requisite under Section 11(vi) of the Hindu Adoption and Maintenance Act, 1956, which did not take place in this case.

“We find that there is no convincing evidence of that ‘act’ also in the case on hand. Interestingly, there are no pictures of the actual ‘giving and taking’ of the child in adoption,” Supreme Court said.

The Supreme Court concluded that the very adoption itself was not believable and that Nalini Kanth could not, therefore, be treated as the testator’s heir by adoption.

The apex court also found it strange that the testator expected Kanth to perform her funeral rites, given that Kanth was a toddler when the testator passed away.

“It is difficult to believe that a woman of such advanced years would willingly take on the responsibility of caring for an infant at that age,” the Court further noted.

All of these factors ultimately led the top court to dismiss Kanth’s claim to the woman’s property.

Accordingly, his appeal was dismissed and the High Court’s order upheld.

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