Report No. 69
32.34. Redraft as recommended.-
In the light of the above discussion, we recommend the following redraft of section 68. We have already stated that one of us-Shri Mitra-is not agreeable to this recommendation in so far as the section is to be confined to Wills.
Revised section 68
"68. If a Will is required by law to be attested, it shall not be used as evidence until at least one attesting witness 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, unless the witness is incapable of giving evidence or is kept out of the way by the adverse 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.
Exception.-Nothing in this section applies to the case where the Will is in the possession of the opposite party, nor shall this section affect the provisions of section 89 or section 90."
V. Sections 69-72
32.35. Section 69-Covering other cases of unavailability.-
Section 69 provides that if "no attesting witness can be found", etc., it must be proved that the attestation of at least one witness is in his hand-writing and that the signature of the executant is in his hand-writing. Now, the section does not expressly provide for many other cases of unavailability of the witness, for example, where the attesting witness (though alive) is not subject to the process of the court or is not capable of giving evidence. Though it has been held1, that, where the witness is incapable of giving evidence, the case can be regarded as falling under section 69, it is desirable to make the position clear. All the cases covered by the main paragraph of section 68 should be covered for the purposes of section 69 also.
1. Rani lass(' Kunwar v. Sahli Narain Das, AIR 1916 All 178.
32.36. Documents executed in the U.K.-
Amongst the cases to which section 69 applies, is the case where the document appears to have been executed in the United Kingdom. In such a case also the signature of at least one attesting witness should be proved to be in his hand-writing etc. and the signature of the executant should be proved in his hand-writing. There does not appear to be any reason for retaining, at the present time, this special provision for documents executed in the U.K. That part of the section should, therefore, be deleted.
Accordingly, we recommend that in section 69, the words "or if the document purports to have been executed in the United Kingdom" should be omitted.
32.38. It will also be necessary to replace the word "document" by the word "will", in consequence of our recommendation to narrow down1 the scope of section 68. The revised section will read as follows:-
1. See discussion as to section 68.
Revised section 69
"69. If no such attesting witness can be found, it must be proved that the attestation of one attesting witness at least is in his hand-writing, and that the signature of the person executing the will is in the handwriting of that person."