Kerala High Court
R. Saraswathy vs P. Bhavathy Ammal And Anr. on 6 September, 1988
Equivalent citations: AIR1989KER228, AIR 1989 KERALA 228, (1988) 2 KER LT 736, (1988) 2 HINDULR 724, (1988) 2 KER LJ 512
ORDER K.P. Radhakrishna Menon, J.
1. The plaintiff in a suit for the grant of Letters of Administration of the will annexed to the plaint is the revision petitioner.
2. The trial of the suit, it is said, is virtually over. What remains to be done is to argue the matter. It was at this stage the petitioner moved I. A. 1384/88 for sending Exts. A3 and B1 along with Exts. X1 to X8 to a handwriting expert for his opinion, regarding the identify of the signature of the testator seen in Exts. B1 and A3, the two wills relied on by the parties in support of their respective contentions. Exts. X1 to X8 are documents which, it is alleged, contain the signature of the testator.
3. The question arising for consideration is : is the opinion of an expert as regards the signature of a testator relevant to decide the issue, whether a will has validly been executed? The point involved in the question is not covered by any direct authority, the learned counsel for the parties say, and therefore the point has to be decided on principle.
4. The answer to the question depends upon the construction of Section 63 of the Succession Act as also Sections 45, 68, 69, 70 and 71 of the Evidence Act. Section 63 of the Succession Act provides that every testator, other than those who have been exempted from the purview of the section, shall execute his will in accordance with the following rules :
(a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
5. The content of the rules briefly stated is this : On a testator signing the will or affixing his mark to the will or some other person signing the will in his presence and under his direction, it can be said that the testator has completed the first stage in the execution of the will. The signature or mark of the testator or the signature of the person signing for him however, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will. But this is not enough to opine that the will has validly been executed. The requirements prescribed under Clause (c) of the Rules also require to be satisfied. That means the will must also be duly attested i.e., must be attested in accordance with the provisions contained in Clause 3. If these three requirements are satisfied it can be said that the will has validly been executed. To put it pithily execution in the case of a will means and includes not only the testator affixing his signature or mark to the will or some other person signing it in the presence of and under direction of the testator, but the whole series of acts or formalities like attestation etc. stipulated under Section 63, Succession Act.
6. A question immediately would arise : What is the legal position in the matter of proof of a will? We have already seen that will is a document which is required by law to be attested. Such documents shall not be used as evidence until at least one attesting witness has been called for proving its execution, if there be an attesting witness alive and subject to the process of court and capable of giving evidence, (See Section 68 of the Evidence Act). The proviso to this section however relaxes the rigour of this procedure in regard to proof of execution of the documents required by law to be attested, not being a will provided the said documents have been registered in accordance with the provisions of the Registration Act. It therefore follows that in regard to those documents other than a will it is not necessary to call an attesting witness to prove the execution. But it is necessary to call an attesting witness to prove the execution of even such a registered document if its execution by the person by whom it purports to have been executed is specifically denied. It is thus clear from this section that, so far as a will is concerned, the same, unlike other documents which require by law to be attested, cannot be used as evidence unless at least one attesting witness is called for the purpose of proving its execution if there be an attesting witness alive and capable of giving evidence. Where no such attesting witness can be found, it is not as if, the execution of such documents cannot be proved at all. A reference in this connection to Section 69 Evidence Act is relevant. This section prescribes the mode of proof of a document, referred to in Section 68, where no such attesting witness can be found. The section provides that if the attesting witness is not found it must be proved that the attestation of one attesting witness at least, is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person. This is a general statement of law. But in regard to proof of a will the expression "and that the signature of the person executing the document is in the handwriting of that person", in my judgment, is not available in view of the provisions contained in Section 63(a) which says that it is not necessary that the will for its validity, shall contain the signature of the testator. It therefore follows that in the case of a will, if the attesting witness cannot be found, the execution can be proved by examining a witness who can identify the signature of the attestor. In other words there is no need to establish that the signature of the person executing the will (that is, the testator) is in his handwriting as in the case of other documents referred to in the section. Identical provision is contained in Section 70 of the Evidence Act also. This section says that the admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested. The admission referred to in this section, is the admission of a party to the document and therefore when an executant makes an admission the exception embodied in this section is applicable. That is why it is said that this section is an exception to general rule contained in Section 68. Section 70 however, is inapplicable to a will because the executant of a will, which will become effective only on the death of the executant, will not be available to admit the execution at the relevant time. It is therefore clear that by enacting these sections, namely Sections 68, 69 and 70, the legislature wanted to treat a will differently from the other documents, which like a will, are required by law to be attested. A reference to Section 71 of the Evidence Act also is relevant in this context. This section speaks of a situation, brought about by the attesting witness either denying the execution or not recollecting the execution of the document. In such cases that is, where the attesting witness either denies or does not recollect the execution of the document, the execution of the document required by law to be attested, can be proved by other evidence. Subject to what is stated above, in my judgment, a will also requires to be proved like any other document. Whatever that be, in order to have a will received in evidence, the propounder must prove that the will has validly been executed, that is, executed in accordance with the provisions contained in Section 63 of the Evidence Act.
7. It is in this backdrop the question whether the opinion of an expert as to the identity of the signature of the testator in the will is relevant to decide the issue, whether the will in dispute has validiy been executed. When would the opinion of an expert be relevant, is stated in Section 45 of the Evidence Act. It provides that when the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to the identity of handwriting or finger-impressions, the opinions upon that point, of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger-impressions are relevant facts. The expert must necessarily be one who has acquired certain special knowledge, skill or experience in any science or art or profession. The opinion of an expert therefore is not relevant where the subject-matter of enquiry is not one pertaining to any of the matters enumerated under the sect ion. In other words an expert witness may not be asked to state his opinion upon a question of fact which is the very issue that requires decision on other evidence, the production whereof is controlled by the other provisions of the Evidence Act. For instance an expert cannot be allowed to give his opinion upon the construction of documents because this, being a matter of law, is a question solely for the court to decide. Concisely stated :
"It is only where the matter inquired of lies within the range of the peculiar skill and experience of the witness, and is one of which the ordinary knowledge and experience of mankind does not enable them to see, what inference should be drawn from the facts, that the witness may supply opinion as a guide".
Kennedy v. People, 39 NY 245 That means, the opinion of experts is not admissible in regard to matters upon which the court can form a judgment from other evidence and circumstances.
8. In regard to the execution of a will, the Court has to form a judgment from the evidence, the propounder may let in following the procedure prescribed under Sections 68. 69 and 71 of the Evidence Act. Even at the risk of repetition I would in this context refer to Section 63(a), according to which the first stage in the execution of the will can be accomplished by signing the will by adopting any one of the three methods namely, (1) the testator putting his signature, (2) the testator putting his mark or some other person putting his signature in the presence of the testator and under his direction. That means in order to say that a will has validly been executed it is not necessary that it should contain the signature of the testator; but on the other hand it is enough if the testator affixes his mark or some other person signs the document in the presence of the testator and under his direction. And therefore, in a case where the expert opines that the signature seen on the will is not that of the testator but at the same time the execution has validly been proved, can the Court still hold that the will is not valid relying on the opinion of the expert in preference to the uncontroverted evidence proving the execution of the will? My answer is no, because as already noted, under law to hold that a will is valid, it is the execution of the will within the meaning of Section 63, Succession Act that is required to be proved unlike in the case of an ordinary document where under Section 67, Evidence Act the signature should be proved. It may in this context be relevant to note that a propounder can possibly contend that the signature which is opined to be not that of the testator by the expert, in fact is not his signature but only a mark put by him within the meaning of Section 63(a), Succession Act. The Court therefore has no need to form an opinion on the question as to identity of the signature of the testator. This being the position in law, in my judgment, the opinion of the expert as to the identity of the signature of the testator in a will is not a relevant fact.
9. The learned counsel for the petitioner however, argues that the opinion of the expert may be relevant at least, to test the veracity of the testimony of the attestors. What the attestors are expected to speak under Section 68, Evidence Act is only the factum of execution of the will within the meaning of Section 63, Succession Act. They are not obliged under law to testify the identity of the signature of the testator. There is therefore no substance in this argument and hence rejected.
The C.R.P. for the reasons stated above is liable to be dismissed. Accordingly the same is dismissed. No costs.