Content Provider | Supreme Court of India |
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e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | Succession Act 1872- Section 63/Sections 68 and 71 1925/Evidence Act |
Content Type | Text |
Resource Type | Law Judgement |
Jurisdiction | India |
Case Type | Appeal |
Court | Supreme Court of India |
Disposal Nature | Appeal Dismissed |
Headnote | Succession Act, 1925/Evidence Act, 1872- Section 63/Sections 68 and 71-Proving of execution of Will-Evidence of only a/testing witness and that B of the scribe-Non summoning of another a/testing witness, though available- Held, evidence of only attesting witness does not satisfy mandatory requirements of Section 68-Section 71 has no applicability in such case-It is only a permissive and enabling provision. Respondent filed a suit for possession of the suit properties on the basis of a Will. The Will was signed by two attesting witnesses. During trial one of the attesting witnesses and the scribe of the Will was examined, while second attesting witness was not examined. Trial court accepted the Will on the basis of the evidence and decreed the suit. In appeal District Judge reversed the judgment of trial Court holding that the respondent had failed to prove the execution of the Will as only one attesting witness was examined and his evidence was not sufficient to establish that the Will was duly executed. In second appeal High Court held that it was not necessary to examine both the attesting witnesses and in case one attesting witness examined. was unable to remember whether the other attesting witness was present and had signed, it was open to the court to rely upon surrounding circumstances as well as the testimony of other witnesses; and F that the scribe of the Will also could have been treated as an attesting witness as he had also signed the Will. In appeal to this court, appellant contended that the Will in question was not proved as required by law having regard to Section 63 of Succession Act, 1925 read with Section 68 of Evidence Act, 1872 as attestation of the Will by two witnesses was not established; that High Court had committed an error in treating the scribe as an attesting witness when he did not sign as animo attestendi; that the evidence of the one attesting witness examined did not establish attestation of the Will by another attesting witness; that the other attesting witness though available was not examined; and that the High Court committed and error in setting aside the judgment of first appellate court, which was based on proper appreciation of evidence, in the absence of any substantial question of law. Respondent contended that although Section 63 of Succession Act requires attestation of a Will at least by two witnesses but the Will could be proved by examining one attesting witness as per Section 68 of Evidence Act and by leading other evidence as per Section 71 of Evidence Act. |
Judge | Hon'ble Mr. Justice Shivaraj V Patil |
Neutral Citation | 2002 INSC 551 |
Petitioner | Janki Narayan Bhoir |
Respondent | Narayan Namdeo Kadam |
SCR | [2002] Supp. (5) S.C.R. 175 |
Judgement Date | 2002-12-17 |
Case Number | 11194 |
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