Does withholding a witness who was best placed to prove facts central to a Will's genuineness, though she was available and capable of appearing before the Court, weaken the propounder's explanation?

Yes. Where the person best placed to prove facts central to the propounder's explanation is withheld without explanation despite being available and capable of appearing before the Court, her non-examination deprives the account of its most natural source of independent confirmation and materially weakened the explanation.

Indian Succession Act, 1925 — s.63(c) — Evidence Act — s.69 — Hindu Succession Act, 1956 — s.15(2)(b) — Proof of Wills — Attestation — Testamentary capacity — Suspicious circumstances — Devolution on intestacy — Indian Succession Act, 1925 — s.63(c) — Attestation — Scribe without animus attestandi — Held: An unprivileged Will must be attested by two or more witnesses who sign with animus attestandi. A scribe who signs only as writer, without that intention, is not an attesting witness and cannot be substituted for either named witness. (¶59, 67) Evidence Act — s.69 — Proof of Wills — Condition precedent for substituted proof — Held further: Section 69 permits proof by handwriting only after the propounder proves that no attesting witness can be found. An interested beneficiary's unrebutted but unparticularised assertion of death does not reverse the statutory burden or establish the condition precedent. (¶73, 84, 96) Indian Succession Act, 1925 — s.59 — Testamentary capacity — Suspicious circumstances considered cumulatively — Held further: Proof of a testatrix's mark establishes only the physical act, not a sound disposing mind, understanding of the dispositions, or voluntary adoption. Suspicious circumstances surrounding a Will must be considered cumulatively, with cogent evidence needed to remove the doubt. (¶104, 121, 134) Hindu Succession Act, 1956 — s.15(2)(b) — Devolution on intestacy — Heirs of the husband — Held further: Will (Ex.B-13) was not proved, so Arukkaniammal must be treated as having died intestate, and her properties devolve upon the heirs of her husband under Section 15(2)(b). The appeals are allowed and the Trial Court's decree stands restored. (¶135, 136, 140)

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