Report No. 69
32.39. Section 70-Admission of "execution".-
Section 70 provides that the admission of execution "by himself" made by a party is sufficient proof of execution even though the document is required to be attested. In a Calcutta decision1, it has been held that, while admission of execution dispenses with proof of execution, it does not dispense with the necessity of proof of attestation.
1. Jogindra Nath v. Nitai Charan, 7 Cal WN 384, cited in Arjun v. ICailash, AIR 1923 Cal 149(2).
32.40. The Calcutta decision is open to criticism for two reasons1-
(1) such interpretation would render the section nugatory, in many cases, and
(ii) it is illogical to say that execution can be inferred from the admission, but not the attestation.
Attestation is merely incidental to execution by the main person; its purpose is to secure proof by an accredited witness, and where the main person himself admits execution without denying attestation, there is no reason why the law should still insist on formal proof of attestation. After all, an attesting witness is called not for proving only attestation, but "for the purpose of proving its execution."2 (See section 68).
1. See also para. 32.41, infra.
2. Section 68.
32.41. The view expressed by Woodroffe J. in a subsequent case1 of the Calcutta High Court may be noted. He observed that the admission of execution has the effect of dispensing with the proof of attestation.
1. Satish Chandra v. Joginder Nath, 1917 ILR 44 Cal 345: AIR 1917 Cal 693.
32.42. The view taken in the earlier Calcutta case is not likely to prevail, and a different view has been taken in several decision of other High Courts1. We do not, therefore, suggest any amendment, on this point. The latter view is implicit in section 70.
1. For example, see.-
(a) Asharfi Lal v. Nanki, ILR 44 All 127: AIR 1922 All 153.
(b) Gurcharan v. Ram Bharosey, AIR 1943 Oudh 218.
(c) Sonia Sundaram v. Mahibala, AIR 1933 Mad 432 (434).
32.43. Section 70-Need to confine it to the admission in the proceedings before the court.-
There is some doubt1 on the question whether section 70 is confined to admissions made in the pleadings or in the examination of a party or otherwise in the course of proceedings. One view is2, that it is so confined, and admissions mentioned in section 22 or section 65(b) do not fall under the section. On this view, pre-litigation admissions do not fall within the section. A contrary view has, however, been taken in some cases3.
1. See Asharfi Lal v. Nanki, AIR 1922 All 153.
2. (a) Raj Mango! v. Mathura Dubain, ILR 38 All 1: AIR 1915 All 385.
(b) Sheikh Dawood v. Ram Nathan, AIR 1923 Cal 149(2).
(c) Jogendra Nath v. Nehal Chand, (1902) 7 CWN 384.
(d) Abdul Karim v. Salimu, 1900 ILR 27 Cal 190.
(e) Timmara v. Diannara, AIR 1948 Born 322.
3. For example Gurcharan v. Ram Bharose, AIR 1943 Oudh 218 (221) (reviews case law).
32.44. Since the reason underlying the existing rule is that the parties arrange for attestation with the object of securing evidence in case of litigation, it is reasonable to hold that only an admission made for the purpose of litigation should come under the section. Hence, the former view is correct, and the section should be confined to admissions made in the course of the proceedings.
32.45. Recommendation to amend section 70 so as to confine it to admissions made during the proceedings.-
We, therefore, recommend that in section 70, after the words "The admission of a party to an attested document of its execution by himself", the words "if such admission is made in a pleading or otherwise in the course of the proceeding", should be inserted.
32.46. Substitution of "Will" recommended.-
Another verbal change is required in section, 70. Wherever the word "document" occurs, the word "Will" should be substituted, in view of the change1 recommended by us in section 68.
1. See the recommendation relating to section 68.
32.47. Since a Will speaks from the death of the testator, questions as to its execution would arise mostly only after the death of the testator. However, it is not inconceivable that during his lifetime the testator is a party to a proceeding in which the will is in issue-for example, in the case of mutual Wills.
32.48. Revised section 70.- If the above changes are made, section 70 will read as under:
Revised section 70
"70. The admission of a party to an attested Will of its execution by himself shall, if such admission is made in a pleading or otherwise in the course of the proceeding, be sufficient proof of its execution as against him, though it be a will required by law to be attested".
32.49. Section 71-Situation where there are more than one attesting witness.-
Section 71 provides that if "the attesting witness" denies or does not recollect the execution of the document, its execution may be proved by other evidence. The words "the attesting witness" presumably refer back to section 68, under which "one attesting witness at least" has to be called for proving execution. On this construction, if the one witness called under section 68 denies execution etc. under section 71, it would be permissible to have other evidence.
The matter, however, seems to have created some doubt, and the question has arisen whether it is necessary to call all the other attesting witness or witnesses (if available) before giving other evidence. The doubt has been raised by a few decisions,1 holding that if one witness cannot recollect or is hostile, the other witnesses must be called. A contrary view has been expressed in other cases.2
1. Vishnu Ramkrishna v. Natha Vital, AIR 1949 Born 266 (269), paras. 11-12 (reviews case law).
2. (a) Hason Ali v. Gurdas Kapali, AIR 1929 Cal 188.
(b) Ayenati v. Mohammad Esmail, AIR 1929 Cal 441 (442), (Jack, J.).
(c) Bali Ram v. !Canalia, AIR 1924 Nag 367.
32.51. In our view, it should not be necessary to call all the attesting witnesses. The section does not expressly provide that all witnesses must be called, and in any case, the contrary view may cause inconvenience. Nor is it implied that other evidence cannot be given. A clarification is needed in view of the conflict. In a Calcutta case, two Judges differed1-2 on this very point.
1. Ayenati v. Mohamad Esmail, AIR 1929 Cal 441 (444) (Jack J., Miner, J.).
2. See Field, 6th Edn., p. 236.
We recommend that section 71 should be amended to incorporate the correct view stated above. Also, the section should be confined to wills, in view of the change1 recommended by us in section 68. Section 71 should, therefore, be revised as under:
1. See discussion as to section 68.
Revised section 71
"71. If the attesting witness called for the purpose of proving execution1 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."
1. Cf. section 68.
32.53. Section 72 to be amended.-
Section 72 provides that in the case of documents not required to be attested, the attesting witness need not be called. The section should be confined to wills, as already recommended by us.1 The revised section will read as under:
1. See discussion as to section 70.
Revised section 72
"72. An attested Will not required by law to be attested may be proved as if it were unattested."
It may be stated that-
(i) Sections 68-71 are qualifications of section 67; and
(ii) Section 72 is a counter qualification of sections 68 to 71. The scope of section 72 should therefore be co-extensive with section 68.