One Second Appeal filed in partition suit by the Appellant in the High Court of Madras, during the course of arguments, the Court framed one additional substantial question of law: Whether both the Courts were right in relying upon the Will of the Deceased, only based on the admission made by the defendant without the same being proved in accordance with Section 68 of the Indian Evidence Act?

In above case the High Court of Madras held that: Insofar the Will is concerned, the Evidence Act prescribes the manner in which a Will should be proved under Section 68 of the Act. A person who wants to rely upon a Will has to necessarily prove the Will only in accordance with Section 68 of the Act. In the absence of attesting witness, the Will has to be proved in accordance with Section 69 and 70 of the Evidence Act. Section 63 of the Indian Succession Act provides for the manner in which a Will should be executed by the testator and the requirement of attesting witnesses.

Section 68 of the Evidence Act only provides for an exception under the proviso to the said Section wherein it is specifically provided that it shall not be necessary to call an attesting witness in proof of execution of any document, “not being a Will”, which has been registered in accordance with the provisions of the Indian Registration Act, It is clear from this proviso that the exception is available for any other documents other than a Will. In other words, a Will has to be proved only in accordance with Section 68 to 70 of the Indian Evidence Act.