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Report No. 185

42. Substitution of new sections for sections 68 to 73.-

For sections 68 to 73 of the principal Act, the following sections shall be substituted, namely:-

"68. Proof of execution of will required by law to be attested.- (1) If a will is required by law to be attested, it shall not be used as evidence of any testamentary disposition until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence.

(2) Notwithstanding anything contained in sub-section (1), an attestor need not be called as a witness to prove the execution of a will if,-

(a) the attesting witness is incapable of giving evidence; or is kept out of the way by the opposite party or by another person in collusion with that party or is one whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable; or

(b) the will is in the possession of the opposite party; or

(c) a party wants to refer to any collateral fact contained in the will; or

(d) the provisions of section 89 or section 90 apply.

69. Proof where no attesting witness is found.- If no such attesting witness can be found as specified under sub-section (1) of section 68, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the will is in the handwriting of the executant of the will.

70. Admission of execution by party to attested will.- The admission by the executant of an attested will of its execution shall, if such admission is made during his lifetime in a pleading or otherwise in the course of a suit or proceeding, be sufficient proof of its execution as against those who dispute the execution, though the will is one required by law to be attested.

71. Proof when attesting witness denies the execution.- If the attesting witness called for the purpose of proving execution of a will denies or does not recollect the execution of the will, its execution shall, subject to the provisions of section 68, be proved, by calling other attesting witnesses, before other evidence is adduced.

72. Proof of wills or other document not required by law to be attested.- An attested will or other document not required by law to be attested may be proved as if it was unattested.

73. Comparison of signature, writing or seal with others admitted or proved.- (1) In order to ascertain whether a signature, writing or seal is that of the person by whom it is alleged to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared by the Court or under its orders with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.

(2) The Court may direct any person present in Court to write any words or figures for the purpose of comparison of the words or figures so written with any words or figures alleged to have been written by such person.

(3) This section applies also, with any necessary modifications, to finger impressions, palm impressions, footprints and type-writing.

(4) Without prejudice to the provisions of any other law for the time being in force, nothing in this section shall apply to a criminal Court before it has taken cognizance of an offence."

Review of the Indian Evidence Act, 1872 Back

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