V. Chitambaresh, J.A Will required by law to be attested shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution if he be alive and subject to the process of Court. Does this statutory mandate apply even while the execution of the Will by the person by whom it purports to have been executed is not specifically denied or expressly admitted This is the precise question referred to the Division Bench by the learned single Judge for consideration in these Regular Second Appeals arising out of a preliminary decree for partition.

2. The plaintiff and the defendants are siblings and the suit is for partition of the property purchased in the joint names of the plaintiff and her deceased father who has reportedly bequeathed his share, The alleged beqest was under Ext.A2 Will in favour of the plaintiff and the defendants followed by Ext.A3 Codicil allegedly executed to define a pathway to the property bequeathed. There is also a prayer for declaration of right of pathway and consequential prohibitory injunction as well as a counter claim for mandatory injunction for return of gold and almirah. The plaintiff was examined as PW1 and the second defendant as DW1 and none of the attesting witnesses either to Ext.A2 Will or to Ext.A3 Codicil were examined in evidence.

3. The relief of partition was based on Ext.A2 Will and the relief of declaration and prohibitory injunction was based on Ext.A3 Codicil and it is conceded that the defendants did not dispute its execution. The trial court dismissed the suit and partly decreed the counter claim holding the claim for partition as impermissible since the plaintiff had accepted the bequest made under Ext.A2 Will. The lower appellate court in the appeal filed by the plaintiff held that Ext.A2 Will and Ext.A3 Codicil cannot be enforced for want of proof however decreeing the suit for partition. The learned single Judge before whom the Regular Second Appeals filed separately by defendant No. 1 as well as defendant Nos.2 and 3 came up for hearing felt the need for a reference. This was in view of the conflicting decisions of this court on the necessity to examine one attesting witness at least even if the execution of the Will is not disputed or expressly admitted.

4. We heard Mr. S.B. Premachandra Prabhu, Advocate and Mr. P. Thomas Geeverghese, Advocate on behalf of the appellants and Mr. S. Vinod Bhat, Advocate on behalf of the contesting respondents.

5. It was quite surprising when a Division Bench of this Court for the first time held that the necessity to call for an attesting witness stands obviated unless the execution of the Will or its attestation is in dispute. It was held in Thayyullathil Kunhikannan and others v. Thayyullathil Kalliani and others (AIR 1990 Ker. 226 [LQ/KerHC/1989/577] ) as follows:-

"Section 68 states that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive. The proviso to the Section which was introduced by the amending Act 31 of 1926 makes an exception in the case of any document, not being a Will, which has been registered, unless its execution by the persons by whom it purports to have been executed, is specifically denied. The fact that the proviso is not applicable to Wills, and that it does not make an exception in the case of registered Wills, does not lead to any inference that a Will cannot be acted upon or used as evidence, unless it has been proved by examining an attesting witness. The only effect of the proviso is that registration of the Will by itself does not obviate the necessity of calling an attesting witness to prove it, if it is otherwise required to be proved. The proviso does not speak of a case where a Will is not in dispute. Section 68 relates to those documents which require to be proved at the trial of a suit. If by any rule of law or of pleadings, such proof is not required, Section 68 cannot operate to insist on formal proof by calling an attesting witness. Section 58 has to be read as overriding Section 68 and has obviating the necessity for calling an attesting witness, unless the execution of the Will or the attestation is in dispute. In the absence of any such plea in the written statement, it will be the height of technicality and waste of judicial time to insist on examination of an attesting witness, before a Will could be used as evidence."

6. But a learned single Judge of this Court referring to the above decision drew a distinction between a case where the execution of the Will is not specifically denied and where the execution of the Will is expressly admitted. It was held in Princelal.G. v. Prasannakumari and others (2009 (3) KLT Suppl. 1342 = ILR 2009 (3 [LQ/KerHC/2009/699] ) Ker. 221) as follows:-

"There can be no dispute that a Will is a document which is required by law to be attested thereby attracting the main part of Section 68 of the Evidence Act. The rigour of the said section that a document which is required by law to be attested shall not be used in evidence until at least one of the attesting witnesses, if alive, has been called for the purpose of proving its execution, is taken away by the proviso to the said section which indicates that the mandate of calling at least one of the witnesses in proof of execution will be insisted only if the execution of the document is specifically denied. But then, again a Will is exempted from the operation of the proviso. That only means that even if the execution of a Will is not specifically denied (eg: where there is an evasive denial or where the party setting up the Will is put to proof by the opposite party or where the opposite party pleads ignorance about the Will propounded), the person setting up the Will has to call at least one of the attesting witnesses in proof of the execution. But where the execution of the Will is expressly admitted, then neither Section 68 nor its proviso is attracted obliging the propounder of the Will to prove due execution of the Will. That was the reason why the Division Bench held that the propounder of the Will is absolved of the obligation of calling at least one of the attesting witnesses in proof of execution because the execution of the Will is art admitted fact which by virtue of Section 58 of the Evidence Act need not be proved."

7. However another learned single Judge of this Court noticed that no distinction is drawn by the statutory provision between an admitted Will and a disputed Will in the mode of proof of execution. It was held in Poulose A. V. v. Indira M.R. and others (2010 (3) KLT Suppl. 185 (Ker.) = ILR 2010 Ker.388) as follows:-

"13.Two questions arise for consideration. One, in the light of the above dispute, is it not necessary for the propounder of the Will to prove the due execution of the Will. The other question is even if execution of the Will is admitted, still is it not necessary for the plaintiff to prove the Will as per Section 68 of the Indian Evidence Act.

15. A reading of the above provision clearly shows that in the case of a Will, unlike in the case of a gift deed, which if admitted need not be proved, the Will will have to be proved by examining at least one of the attesting witnesses. There is no distinction drawn by the provision between an admitted Will and a disputed Will. In fact a reading of the provision will clearly show that in all cases in which the Will is set up the procedure prescribed in Section 68 will have to be followed."

(emphasis supplied)

8. Later a Division Bench of this Court opined that it is not further necessary to probe for evidence in proof of execution of the Will in terms of the provisions of the Evidence Act in the absence of specific denial. It was held in Maya Siva Sankarand another v. Sathi and another (2011 (2) KLT 432) as follows:-

"Ext B11 Will is not under challenge. Equally is Ext.BIO, Ambujakshy Ammas earlier Will, which was cancelled as per Ext.BH. In the absence oi any specific denial of Exts.B1O and B11 and the contents thereof, the decision of the Apex Court in Balathandayutham and Another v. Ezhilarasan, 2010 (2) KLT Suppl. 149 (SC) = (2010) 5 SCC 770 [LQ/SC/2010/402] = 2010 KHC 4252 = 2010 (3) SCALE 769 [LQ/SC/2010/402] and of this Court m Thayyullathil Kunhikannan and Others v. Thayyullathil Kalliani and Others (AIR 1990 Ker.226 ; 1990 (1) KLJ 114 [LQ/KerHC/1989/577] ; 1990 KHC 296) stand to advice that in the absence of specific denial of the Wills, it is not further necessary to probe for evidence in proof of execution of those Wills in terms of the provisions of the Evidence Act."

It should be stated that the decision in Balathandayutham and another v. Ezhilarasan (2010 (2) KLT Suppl. 149 (SC) = (2010) 5 SCC 770 [LQ/SC/2010/402] ) referred to in the above decision does not deal with the mode of proof when the execution of the Will is not disputed or admitted.

9. Another Division Bench of this Court was quick to point out that the propositions enunciated in Thayyullathil Kunhikannans case (supra) are not good law in view of the consistent decisions of the Supreme Court. It was held in Vadakkayil Gopalan and others v. Vadakkayil Paru and others (2013 (3) KLT 69 [LQ/KerHC/2013/906] ) as follows:-

"27. The learned counsel for the appellant has relied on the decision of another Division Bench of this Court in Thayyullathil Kunhikannan and Ohters v. Thayullathil Kalliani and Others (AIR 1990 Ker. 226 [LQ/KerHC/1989/577] = 1990 KHC 296 = 1990 (1) KLJ 114 [LQ/KerHC/1989/577] ), to argue that in the absence of any specific denial of execution and attestation of Ext.AI in the written statement of first defendant, any further proof of Ext.AI is not expected. In the said decision it was held that the fact that the proviso to Section 68 of the Indian Evidence Act is not applicable to Wills, and that it does not make any exception in the case of registered Wills, does not lead to an inference that a Will cannot be acted upon or used as evidence, unless it has been proved by examining an attesting witness. It was further held that the proviso does not speak of a case where the Will is not in dispute and that if by any rule of law or of pleadings, such proof is not required, Section 68 cannot operate to insist on formal proof by calling an attesting witness. With respect, we find that the said propositions enunciated in the said decision are not good law in view of H.Venkatachala lyengars case (supra), which was subseguentlv followed bv the Apex Court consistently in many of the subsequent decisions. In a case wherein the High Court has held that proof of the Will was not necessary as the execution of the Will has been admitted in the pleadings, the Apex Court has held in S.R.Srinivas and Others v. S.Padmavathamma, 2010 (2) KLT Suppl. 45 (SC) = 2010 (5) SCC 274 [LQ/SC/2010/430] = 2010 (4) SCALE 245 [LQ/SC/2010/430] = 2010 KHC 4280 that it becomes evident that the execution of a Will can be held to have been proved when the statutory requirements for proving the Will are satisfied. It was further held therein that such admission in the pleadings can only be about the making of the Will and not the genuineness of the Will.

29. In Gopal Swaroop v. Krishna Murari Mangal and Ors. (2010 (4) KLT SN 99 (C.No.115) SC : (2010) 14 SCC 266 [LQ/SC/2010/1291] : 2010 KHC 4927 : 2011 (1) KLJ NOC48 it was held in paragraph 15 that, "S.68 of the Evidence Act is against the use of a will in evidence unless one attesting witness has been examined to prove the execution". In view of the decisions in H. Venkatachala lyengars case (AIR 1959 SC 443 [LQ/SC/1958/142] : 1959 Supp(1)SCR426:1959 KHC498:1959 Mys.U 424), Rani Pumima Debis case (AIR 1962 SC 567 [LQ/SC/1961/289] : 1962 (3) SCR 195 [LQ/SC/1961/289] : 1962 KHC 494 : 1962 (2) MU (SC) 7), Srinivasas case, ((2010) 5 SCC 274 [LQ/SC/2010/430] : 2010 (4) SCALE 245 [LQ/SC/2010/430] : 2010 KHC 4280), Rosammals case (AIR 2000 SC 2857 [LQ/SC/2000/1196] : (2000) 7 SCC 189 [LQ/SC/2000/1196] : 2000 KHC 1328) and Gopal Swaroopcase(2010(4)KLTSN99(C.No.115)SC:2010(14)SCC266 : 2011 (1) KLJ NOC 48 : 2010 KHC 4927), the decision of this Court in Thayyullathil Kunhikannan scase (AIR 1990 Ker. 226 [LQ/KerHC/1989/577] : 1990 KHC 296 : 1990 (1) KLJ 14) regarding the proof of Will in the absence of specific denial in the written statement, does not lay down good law. Even the absence of any specific denial of execution of a Will will not absolve the duty of the propounder of a Will to prove its genuineness and the further duty to dispel all the suspicious circumstances, if any, surrounding its execution. The doctrine of dependent relative revocation also does not absolve the burden of the propounder of the earlier Will from proving its genuineness or its due execution, and the further burden to dispel all the suspicious circumstances, surrounding its execution."

(emphasis supplied)

It should be stated with respect that none of the decisions referred to in Vadakkayil Gapalans case (supra) deal with the precise question as to the manner of proof when the execution of a Will is not disputed or admitted.

10. Recently the Supreme Court has well clarified that the legal position remains the same even in a case where the opposite party does not specifically deny the execution of the Will in the written statement. It was held in Ramesh Verma and others v. Lajesh Saxena and others ((2017) 1 SCC 257 [LQ/SC/2016/1486] ) as follows:-

"A will like any other document is to be proved in terms of the provisions of Section 68 of the Evidence Act and the Succession Act, 1925. The propounder of the will is called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the disposition and put his signature to the document on his own free will and the document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. This is the mandate of Section 68 of the Evidence Act and the position remains the same even in a case where the opposite party does not specifically deny the execution of the document in the written statement.

(emphasis supplied)

11. It was inter alia contended that the aforesaid observation in Ramesh Vermas case (supra) is only an obiter dicta in as much as the genuineness of the Wills relied on were very much in dispute therein. But we would like to remind ourselves that observations of the Supreme Court are the law of the land under Article 141 of the Constitution of India even if they are obiter dicta. The Supreme Court in Oriental Insurance Company Limited v. Meena Variyal ((2007) 5 SCC 428 [LQ/SC/2007/437] ) emphasised as follows:-

"An obiter dictum of this Court may be binding only on the High Courts in the absence of a direct pronouncement on that question else where by this Court. But as far as this Court is concerned, though not binding, it does have clear persuasive authority."

(emphasis supplied)

It has even been held earlier in C.I.T. v. Vazir Sultan and Sons (AIR 1959 SC 814 [LQ/SC/1959/33] ) that observations of the Supreme Court even if in the nature of obiter dicta are entitled to considerable weight. No other direct pronouncement elsewhere by the Supreme Court to the contra on the question referred has been brought to our notice and hence the decision in Ramesh Vermas case holds the field and is binding on us.

12. Let us have a cursory look at the statutory provision which insists on at least one attesting witness (if he be alive) to be examined for the purpose of proof of execution of a Will required by law to be attested. Section 68 of the Indian Evidence Act, 1872 ( the far short) is extracted below:

"68. Proof of execution of document required by law to be attested.- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:

Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."

(emphasis supplied)

It is beyond cavil that a Will declaring the intention of a testator shall be attested by two or more witnesses under Section 63(1)(c) of the Indian Succession Act, 1825 (See: Babu Singh v. Ram Sahai (2008) 14 SCC 754 [LQ/SC/2008/1036] ). Therefore a Will required by law to be attested shall not be used as evidence until one attesting witness at least (if he be alive) has been called for proving its execution. The above is the mandate contained in the main body of Section 68 of theand no exception has been carved out for a Will which is not specifically disputed or expressly admitted.

13. However the proviso to Section 68 of thecarves out an exception for documents which though required by law to be attested can nevertheless be proved without examining one attesting witness at least if he be alive. The benefit of the proviso is applicable to all such documents (not being a Will) whose execution by the person by whom it purports to have been made is not specifically denied. The only other condition is that the document required by law to be attested must have been registered in accordance with the provisions of the Indian Registration Act, 1908. The category of documents styled as Will under Section 2(h) of the Indian Succession Act, 1925 are specifically excluded from the ambit of the proviso to Section 68 of the. The necessary corollary therefore is that a Will shall not be used as evidence until one attesting witness at least has been examined even its execution is not specifically denied.

14. We are fortified in this conclusion by Jagdish Chand Sarma v. Narain Singh Saini and others {2015 (3) KLT SN 11 (C.No.15) SC = AIR 2015 2149) and the following excerpt is apposite:-

"In the evidentiary context Section 68 of the Act, 1872 enjoins that if a document is required by law to be attested, it would not be used as evidence unless one attesting witness, at least, if alive, and is subject to the process of Court and capable of giving evidence proves its execution. The proviso attached to this Section relaxes this requirement in case of a document not being a Will, but has been registered in accordance with the provisions of the Indian Registration Act, 1908 unless its execution by the person by whom it purports to have been executed is specifically denied.

These statutory provisions, thus, make it incumbent for a document required by law to be attested to have its execution proved by at least one of the attesting witnesses, if alive, and is subject to the process of court conducting the proceedings involved and is capable of giving evidence. The rigour is, however eased in case of a document also required to be attested but not a Will, if the same has been registered in accordance with the provisions of the Indian Registration Act, 1908 unless the execution of this document by the person said to have executed it denies the same. In any view of the matter, however, the relaxation extended by the proviso is of no avail qua a Will. The proof of a Will to be admissible in evidence with probative potential, being a document required by law to be attested by two witnesses, would necessarily need proof of its execution through at least one of the attesting witnesses, if alive, and subject to the process of the Court concerned and is capable of giving evidence."

(emphasis supplied)

15. It Is trite law that the scope of the proviso is to carve out an exception to the main enactment and it excludes something which otherwise would have been within the rule but however operates in the same field. The Supreme Court in Tribhovandas Haribhai Tamboli v. Gujarat Revenue Tribunal ((1991) 3 SCC 442 [LQ/SC/1991/288] ) observed as follows;

"It is a cardinal rule of interpretation that a proviso to a particular provision of a statute only embraces the field, which is covered by the main provision, it carves out an exception to the main provision to which it has been enacted by the proviso and to no other. The proper function of a proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment, and its effect is to confine to that case. Where the language of the main enactment is explicit and unambiguous, the proviso can have no repercussion on the interpretation of the main enactment, so as to exclude from it, by implication what clearly falls within its express terms. The scope of the proviso, therefore, is to carve out an exception to the main enactment and it excludes something which otherwise would have been within the rule. It has to operate in the same field and if the language of the main enactment is clear, the proviso cannot be torn apart from the main enactment nor can it be used to nullify by implication what the enactment clearly says nor set at naught the real object of the main Enactment, unless the words of the proviso are such that it is its necessary effect."

(emphasis supplied)

The above dictum has been affirmed in Dashrath Rupsingh Rathod v. State of Maharashtra (2014 (3) KLT 605 (SC) = (2014) 9 SCC 129 [LQ/SC/2014/771] ) and decisions are legion that the proviso is an internal aid for the interpretation of a statute.

16. There is a world of difference between the factum of a document akin to the Will being admitted under Section 58 of theand proof of due execution of the Will under Section 68 of the. The due execution of the Will cannot be proved otherwise than by recourse to Section 68 of theand Section 63 of the Indian Succession Act, 1925 as has been held time and again. The general provisions of Section 58 of thehas obviously to give way to the special provisions of Section 68 of the1 which govern documents required by law to be attested. That some documents are required by law to be attested imply that law gives additional solemnity empowering the executants with rights and obligations thereunder. Section 68 of theoperates as an exception in relation to documents required by law to be attested and cannot be said to be subject to Section 58 of theby any stretch of imagination. No distinction has been drawn by the statutory provision between an admitted Will and a disputed Will as has been rightly observed by Mr. Justice P. Bhavadasan in Poulose. A.V.s case (supra). One of the attesting witnesses if he be alive should be called for the purpose of proving its execution whenever a Will is used as evidence and for whatever purpose.

17. We follow Ramesh Vermas case and approve the dictum in Poulose A.V.s case as well as Vadakkayil Gopalans case (supra) as regards the necessity to examine one attesting witness at least in evidence. The decisions in Thayullathil Kunhikannans case, Princelal Gs case and Maya Siva Sankars case (supra) to the extent it obviates such necessity are declared per incuriam. The Registry shall post the Regular Second Appeals before the single bench as per roster for disposal in the light of the reference answered above and in accordance with law.

18. The Reference answered accordingly.