‘X’ is only son of ‘Y’ the testator produced 60 years old properly executed will, from lawful custody to the Court. Whether separate proof was required to prove the Execution.

Facts of the Case

‘X’ is the only son of ‘Y’, the testator. ‘X’ produced a 60-year-old will of his father before the court. The will was properly executed and had been in lawful custody for all these years.

The question arose whether separate proof of execution (such as attesting witnesses or additional evidence) was required, given the age of the will, or whether the fact that it was properly executed and in lawful custody was sufficient under Indian Law.

Issues in the Case

1. Whether a 60-year-old will requires separate proof of execution under the Indian Evidence Act, 1872?
2. Whether production from lawful custody is sufficient to prove execution of an old will?
3. What evidentiary requirements apply to wills under Sections 63 and 68 of the Indian Evidence Act?

Legal Principles Covered to Support Case Proceedings and Judgments

A. Proving Execution of a Will – Section 63, Indian Evidence Act, 1872

Section 63 requires that a will, being a document of gift of property after death, must be proved by the attesting witnesses or in a manner prescribed by law.

• A properly executed will, even if old, is prima facie valid if it satisfies the formalities of execution.
• The age of the document does not invalidate it; what matters is that it was executed according to law.

B. Proof from Lawful Custody – Section 68, Indian Evidence Act, 1872

Section 68 deals with proof of documents over 30 years old:

• If a document more than 30 years old is produced from lawful custody, it is admissible as evidence of its contents without further proof of execution or signature.
• The presumption is that such documents have been kept safely and unaltered, reducing the need for additional proof.

Since the will in question is 60 years old and in lawful custody, separate proof of execution is not required under Section 68.

C. Judicial Position

• Courts have held that ancient documents (over 30 years old) produced from proper custody are self-authenticating unless there is reason to doubt their genuineness.
• The Supreme Court in Ram Krishna v. State of Bihar held that production from lawful custody suffices to dispense with calling attesting witnesses for very old documents.

D. Relevance to Wills

• A will is a privileged document, and evidence of proper execution, age, and custody is sufficient to establish authenticity.
• Separate proof is required only if:
  1. There is doubt about authenticity, or
  2. The custody was not lawful, or
  3. The will appears tampered with.

Possible Judgment

The Court is likely to hold that:

1. The 60-year-old will of ‘Y’ produced by ‘X’ from lawful custody is admissible as evidence without requiring separate proof of execution.
2. Under Section 68 of the Indian Evidence Act, 1872, documents older than 30 years are presumed genuine if produced from lawful custody.
3. Since the will was properly executed and safely kept, the court may accept the document as valid proof of the testator’s intentions.
4. Additional proof (e.g., attesting witnesses) is not mandatory, unless there is dispute regarding authenticity or forgery.

Final Decision

Separate proof of execution is not required for the 60-year-old will produced from lawful custody. The will is admissible and sufficient evidence under Section 68 of the Indian Evidence Act, 1872.

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