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TMI Blog2008 (4) TMI 832X X X X Extracts X X X X X X X X Extracts X X X X ..... plaintiff is owner of the suit property? OPP 2. Whether the Plaintiffs are entitled to the possession of the shop in question? OPP X X X 6. Whether the defendants are entitled to the counter claim to the effect that they are owner of the shop in question and co-sharer to the extent of 0-6 marlas of the land fully detailed in the counter claim? OPD We need not go into other issues between the parties. 5. The learned Trial Judge, although opined that the suit was bad for non-impleading Karam Kaur and Dalwinder Kaur, daughters of the testator as parties to the suit, proceeded to consider the validity of the Will in order to avoid any possibility of remand by the Trial Court, stating: The plaintiff was duty bound to examine at least one attesting witnesses to prove the execution of the Will Ex.P/2. It has come in evidence that Lambardar Mohan Singh expired before he could be examined as a witness. Other attesting witnesses House was alive and had been given up by the plaintiff on the plea that he had been won over by the other party. Thus, Will Ex.P/2 has not been proved according to Section 68 of the Indian Evidence Act. 6. The learned Judge, however, noticed that one of the attestin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L. Verma, counsel for the Plaintiff as well as Plaintiff himself on 29.10.1999 that Harnek Singh witness has joined hands with the opposite party and moreover, he has intentionally left to a foreign country. For this reason, Harnek Singh son of Ram Parkash also could not be examined by him. Now the question arises whether the statement of the deed-writer who also knew Ram Bux Singh can be relied upon or not and whether he can be treated as an attesting witness or not. 8. The High Court by reason of the impugned judgment dismissed the Second Appeal preferred by the appellant herein opining that no substantial question of law arose for its consideration. 9. Mr. Viraj Datar, learned Counsel appearing on behalf of the appellant, submitted that in the facts and circumstances of this case, Section 69 of the Evidence Act cannot be said to have any application whatsoever and, thus, the High Court committed a serious error in passing the impugned judgment. 10. Indisputably a Will is to be attested by two witnesses in terms of Section 63(1)(c) of the Indian Succession Act. Indisputably, the requirement of Section 68 of the Indian Evidence (the Act) is required for to be complied with for pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... writing of that person. 14. It would apply, inter alia, in a case where the attesting witness is either dead or out of the jurisdiction of the court or kept out of the way by the adverse party or cannot be traced despite diligent search. Only in that event, the Will may be proved in the manner indicated in Section 69, i.e., by examining witnesses who were able to prove the handwriting of the testator or executant. The burden of proof then may be shifted to others. 15. Whereas, however, a Will ordinarily must be proved keeping in view the provisions of Section 63 of the Indian Succession Act and Section 68 of the Act, in the event the ingredients thereof, as noticed hereinbefore, are brought on record, strict proof of execution and attestation stands relaxed. However, signature and handwriting, as contemplated in Section 69, must be proved. 16. Indisputably, one of the attesting witnesses was dead. Our attention, however, has been drawn to the fact that a purported summons were taken out against the said Harnek Singh. Admittedly, it was not served. There is nothing on record to show that any step was taken to compel his appearance as a witness. Ram Sahai in his deposition did not ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or failing to recollect the execution of the document did at all arise. The plaintiff simply took out a summons as against this witness and nothing further was done later on. In a case like this where the attesting witnesses are not before the Court, Section 71, Evidence Act, has in my opinion, got no application. In such cases it is the duty of the plaintiff to exhaust all the processes of the Court in order to compel the attendance of any one of the attesting witnesses and when the production of such witnesses is not possible either legally or physically, the plaintiff can avail himself of the provisions of Section 69, Evidence Act. 18. In Amal Sankar Sen and Ors. v. The Dacca Co-operative Housing Society Ltd. (in liquidation) by Inspector Liquidator, Co-operative Society, Dacca AIR1945Cal350 , it was held: As we have already stated, that proposition of law cannot be challenged at this date. In order that Section 69, Evidence Act, may be applied, mere taking out of the summons or the service of summons upon an attesting witness or the mere taking out of warrant against him is not sufficient. It is only when the witness does not appear even after all the process under Order 16 Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry cordial. The appellant before us has not been able to prove that she had been staying with the testatrix since 1986 and only on that account she was made a beneficiary thereof. The will was full of suspicious circumstances. PW 2 categorically stated that the will was drafted before her coming to the residence of the testatrix and she had only proved her signature as a witness to the execution of the will but the document was a handwritten one. The original will is typed in Kannada, although the blanks were filled up with English letters. There is no evidence to show that the contents of the will were read over and explained to the testatrix. PW 2 was not known to her. Why was she called and who called her to attest the will is shrouded in mystery. Her evidence is not at all satisfactory in regard to the proper frame of mind of the testatrix. There were several cuttings and overwritings also in the will. In the aforementioned situation, the Will was said to have not been proved. This Court therein noticed, inter alia, the decision of B. Venkatamuni v. C.J. Ayodhya Ram Singh and Ors. AIR2007SC311 wherein the law has been laid down in the following terms: 25. The Division Bench of ..... 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