2002 (12) TMI 624 - SC - Indian Laws

Summary

Issues Involved:
1. Validity of the Will under Section 63 of the Indian Succession Act.
2. Proof of the Will under Section 68 of the Indian Evidence Act.
3. Applicability of Section 71 of the Indian Evidence Act.

Summary:

1. Validity of the Will under Section 63 of the Indian Succession Act:
The respondent claimed possession of the suit properties based on a Will executed by Honaji Dama Kadam. The trial court accepted the Will and decreed the suit. However, the District Judge, upon appeal, found that the respondent failed to prove the execution of the Will as required by Section 63 of the Indian Succession Act, which mandates attestation by two or more witnesses. The High Court reversed this decision, but the Supreme Court found that the High Court erred in its judgment.

2. Proof of the Will under Section 68 of the Indian Evidence Act:
The appellant contended that the Will was not proved as required by law, specifically under Section 68 of the Indian Evidence Act, which necessitates the examination of at least one attesting witness. The respondent examined only one attesting witness, Prabhakar Sinkar, who failed to confirm the attestation by the other witness, Ramkrishna Wagle. The Supreme Court emphasized that the execution of the Will must be proved by at least one attesting witness who can confirm the attestation by the other witness as per Section 68.

3. Applicability of Section 71 of the Indian Evidence Act:
The respondent argued that the Will could be proved by other evidence under Section 71 of the Indian Evidence Act. However, the Supreme Court clarified that Section 71 is a safeguard for situations where attesting witnesses deny or do not recollect the execution of the document. It does not apply when an attesting witness fails to prove the due execution of the Will, and other available attesting witnesses are not examined. The Supreme Court held that the High Court wrongly relied on the scribe, Raikar, as an attesting witness, and the evidence did not satisfy the mandatory requirements of Section 68.

Conclusion:
The Supreme Court set aside the High Court's judgment and decree, restoring the judgment of the first appellate court, which dismissed the suit filed by the respondent. The High Court's decision was found to be erroneous due to the improper application of legal provisions and failure to establish the Will's execution as required by law.