Execution of will can be proved without examining attesting witness

In Thayyullathil Kunhikannan (supra) a Division Bench of the Kerala High Court while considering the provisions of Sections 58 and 68 of the Evidence Act as to the requirement to call an attesting witness, held--

Section 68 relates to those documents which require to be proved at the trial of a suit. If by any rule of law or of pleadings, such proof is not required, Section 68 cannot operate to insist on formal proof by calling an attesting witness. Section 58 has to be read as overriding Section 68 and as obviating the necessity for calling an attesting witness, unless the execution of the Will or the attestation is in dispute. *In the absence of any such plea in the written statement, it will be the height of technicality and waste of judicial time to insist on examination of an attesting witness, before a Will could be used as evidence. Order 8 Rule 5 C.P.C. deems the execution of the Will to be admitted in the absence of any denial thereof in the written statement. Examination of an attesting witness is therefore unnecessary when the parties have not joined issue on the validity or genuineness of the Will.*

*Andhra High Court.*

*Darisi Masthanamma vs Mandiga Rama Krishna*

on 24 January, 2006

Equivalent citations: *AIR 2006 AP 286, 2006 (2) ALD 534*

Bench: *S A Reddy*