Report No. 185

Section 71

Section 71 deals with "proof when attesting witness denies the execution". It reads as follows:

"71. If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence."

The word 'document' must for the reasons stated hereinabove, be replaced by the word 'will'. There is another aspect where there is more than one attesting witness and the party who wants to prove the will calls him but he turns hostile or does not remember. One view was that there is no duty to call the other attesting witnesses, even if available (see Hason Ali v. Gurdas, AIR 1929 Cal 188; Manki v. Hansraj, AIR 1938 Pat 301; Ayenati v. Md. Ismail, AIR 1929 Cal 441 (Contra Mitter J). This view was accepted in the 69th Report (see para 32.51) on the basis that the section did not say so and that, calling other attestors, will cause inconvenience.

The opposite view that other attesting witness may then have to be called is supported by the observation of the Privy Council in Surendra v. Behari, AIR 1939 PC 117 and is more appealing to us. This opposite view that other attesting witnesses must be called was taken in Hare Krishna v. Jagneswar, AIR 1939 Cal 688; Vishnu v. Nathu, AIR 1949 Bom 266. The law in England also is the same, having regard to the fact that proof of wills has always been put at a higher pedestal. In Pilkington v. Gray: 1899 AC 401, one of the two witnesses to a will gave adverse evidence and said that the signatures were forged.

It was held that other evidence could not be let in unless the absence of the second attesting witness was satisfactorily explained. In Coles v. C, 13 LT 608, it was held that the other attesting witness must be called although the party may know him to be adverse. See also Bowman v. Hodgson (1867) I P&D 362; Dayman v. D 71 LT 699. The Patna High Court held in Tubla v. Gopal 1 Pat Law J. 369 and the Calcutta High Court also held in Gobind v. Pulin 31 CWN 215, that a plea that even if he is called, he will be hostile, has not been accepted.

Sarkar says that the view that other attestors need not be called is not correct and we agree with that view and respectfully disagree with the reasoning given in the 69th Report. Of course, the exceptions laid down in Section 68 will always be applicable, such as the other attestor not being alive, or being kept away by the opposite side etc.

The 69th Report recommended that Section 71 should be revised as follows:

"71. If the attesting witness called for the purpose of proving execution denies or does not recollect the execution of the will, its execution may be proved by other evidence and it shall not be necessary to call any other attesting witness."

Instead, we recommend Section 71 be revised as follows:

"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."