The Kerala High Court has clearly stated that Section 70 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA)—like its counterpart, Section 71 of the Indian Evidence Act—cannot be used to bypass or weaken the mandatory legal requirements for proving a Will under Section 63(c) of the Indian Succession Act, 1925.
This important ruling came during the hearing of RSA No. 159 of 2011, titled P.D. Parameswaran Pillai and others v. T.N. Ramachandran Nair and others. Justice M.A. Abdul Hakeem, while deciding the second appeal, emphasized that Section 70 BSA is only applicable in exceptional situations and cannot override the essential procedure prescribed for proving a Will.
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“If one of the attesting witnesses denies or cannot remember the execution of the Will, the other attesting witness—if available and capable—must be examined. Only when both fail to prove the Will, can the court consider using Section 70 of the BSA,” the Court observed.
The case involved a dispute over the validity of a Will. The key legal question was whether the Will could be proved through Section 70 BSA when attesting witnesses either denied or failed to support its execution.
The Court noted that if an attesting witness merely says they saw the testator signing the document, but their testimony fails to meet the legal conditions under Section 63(c) of the Indian Succession Act, that shortfall cannot be corrected by using Section 70 BSA.
Justice Hakeem stressed that the primary route for proving a Will is the testimony of attesting witnesses. Section 63(c) mandates that a Will must be signed by the testator and attested by at least two witnesses, who must have seen the testator sign it.
“Resorting to Section 70 BSA is not allowed when there is incomplete or weak evidence from attesting witnesses. It is only a fallback when all proper means fail,” the Court clarified.
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The High Court disagreed with the findings of the trial court and the first appellate court. Both had rejected the Will because the attesting witnesses did not support it. However, the High Court held that the Will could still be proved with "other evidence" under Section 70 BSA, since both attesting witnesses had denied the execution.
The Court also addressed whether a beneficiary of the Will could give valid testimony. It ruled that such testimony cannot be dismissed just because the person benefits from the Will.
“If the testimony of a beneficiary is natural and trustworthy, it can be accepted as ‘other evidence’ under Section 70 BSA or Section 71 of the Evidence Act,” the Court stated.
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Additionally, the Court referred to the registration of the Will as supportive proof, despite the general legal position that registration alone does not prove a Will. Citing Section 114(e) of the Indian Evidence Act, it observed that in this case, the registration added credibility.
“The registration of the Will, though not conclusive proof, supports its genuineness and execution,” the Court held.
Ultimately, the High Court ruled in favor of the appellants and recognized the Will as validly executed under the law. The judgment sets a clear precedent: mandatory requirements under Section 63(c) of the Indian Succession Act must be fulfilled, and any fallback under Section 70 BSA can only be used under limited and justified circumstances.
Case No: RSA No. 159 of 2011
Case Title: P.D. Parameswaran Pillai and others v. T.N. Ramachandran Nair and others
Counsel for Appellants: Sri. M. Narendra Kumar, Smt. Laya Simon & Sri. P.B. Pradeep
Counsel for Respondents: Sri. Varghese Prem
