Proof of a will under Section 69 requires genuine unavailability of an attesting witness and strict evidentiary compliance.

A will must be attested by two witnesses and ordinarily proved in the manner required by Section 68 of the Indian Evidence Act. Section 69 applies only where no attesting witness can be found or the witness is otherwise legally unavailable, and then the handwriting of at least one attesting witness and the executant's signature must be proved. Mere assertions that an attesting witness was abroad or had been won over, without evidence or exhaustion of process to secure attendance, do not establish the statutory foundation for Section 69. A statement made through counsel is not evidence. On the stated facts, Section 69 was not attracted and the will was not duly proved.

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Issues: Whether the Will was proved in accordance with the requirements of the Indian Evidence Act, 1872, and whether Section 69 applied so as to permit proof of execution and attestation in the absence of an attesting witness.

Analysis: A Will must be attested by two witnesses under Section 63(1)(c) of the Indian Succession Act and proved in the manner contemplated by Section 68 of the Indian Evidence Act, 1872. Section 69 applies only when no attesting witness can be found or when the witness is unavailable in the legally recognised sense, in which event the handwriting of at least one attesting witness and the signature of the executant must be proved. Mere assertions that an attesting witness had gone abroad or was won over, without evidence and without exhausting the available process to secure attendance, do not satisfy the statutory foundation for invoking Section 69. A statement made through counsel is not evidence, and cannot substitute for a sworn deposition establishing the necessary factual basis.

Conclusion: Section 69 was not attracted on the facts, the Will was not duly proved, and the finding upholding its proof could not stand. The appeal succeeded.

Ratio Decidendi: Section 69 of the Indian Evidence Act, 1872 can be invoked only after a legally sufficient showing that an attesting witness is unavailable, and the statutory proof of the executant's signature and attesting handwriting cannot rest on unsworn assertions or statements made through counsel.

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