Indian Evidence Act Section 68 is Proved

Dear Client,
In the case of testamentary succession, the wishes of the testator of the will shall prevail even though the will is registered or not. The Supreme Court in the case of Saroja v. Santhil Kumar (2010) has held that an unregistered Will is valid and enforceable in law. A will, irrespective of whether it's handwritten or typewritten, on plain paper in clear language and witnessed by at least two persons, is legally valid. The person who makes a will expresses his/her wishes to be executed after their death by certain persons named in the will. The persons named in the will to execute it are called its executors. The executor of the will is required to file a petition and the original will to the competent Civil Court having territorial and pecuniary jurisdiction over the suit property for a grant of probate. The executor of the will has to pay the applicable court fees depending on the value of the property/assets. The court asks the petitioner to establish the testator’s proof of death, proof that the testator’s will has been validly executed, and confirm that this is the deceased's last will. Next, the court calls for objections by issuing notice to the next of kin of the deceased to raise objections, if any, and also orders the publication of a citation of the probate petition on board to notify the general public. If there are no objections, then the Court grants the Probate/LOA to the executor who distributes the property to the beneficiaries as per the wishes expressed by the deceased owner/testator in his/her Will. The Madras High Court in the case of N.Durga Bai vs Mrs.C.S.Pandari Bai, judgment dated 27/02/2017 relying upon the Supreme Court's judgment passed in in Babu Singh and others vs. Ram Sahai Alias Ram Singh (2008) 14 SCC 754 ruled that if the attesting witnesses are really dead the plaintiffs can very well prove the will by resorting to Section 69 of the Indian Evidence Act by examining one of the persons who has acquaintance with the signature of any one of the attesting witnesses and also the executant of the document. Further, the Supreme Court in the case of V. Kalyanaswamy (D) v. L. Bakthavatsalam (D), 2020 SCC OnLine SC 584, decided on 17.07.2020, held that Section 68 of the Evidence Act contemplates attestation of both attesting witnesses to be proved. But that is not the requirement in Section 69 of the Evidence Act. The Court further said that Section 69 of the Evidence Act manifests a departure from the requirement embodied in Section 68 of the Evidence Act. In the case of a Will, which is required to be executed in the mode provided in Section 63 of the Indian Succession Act, when there is an attesting witness available, the Will is to be proved by examining him. He must not only prove that the attestation was done by him, but he must also prove the attestation by the other attesting witness. So, given the procedure of transfer of the deceased's property to the beneficiaries and the averments of the Hon'ble Supreme Court and the High Courts, you may consult with an experienced professional for more clarification and to assess the outcome of the pending case.