Gujarat High Court
Late Dr Pravinbhai Hargovinddas Shah ... vs Late Jayendrabhai Hargovinddas And ... on 5 February, 2025
NEUTRAL CITATION
C/SCA/21319/2017 JUDGMENT DATED: 05/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 21319 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
Yes
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LATE DR PRAVINBHAI HARGOVINDDAS SHAH AND SHAILABEN
PRAVINBHAI SHAH & ORS.
Versus
LATE JAYENDRABHAI HARGOVINDDAS AND LATE SARITABEN
JAYENDRABHAI SHAH & ORS.
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Appearance:
MR JIGAR M PATEL(3841) for the Petitioner(s) No.
1,1.1,1.2,2,2.1,2.2,2.3,2.4,3,3.1,3.2,3.3,3.4,3.5,4,5,5.1,5.2,5.3,5.4
DECEASED LITIGANT for the Respondent(s) No. 7
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
for the Respondent(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 2,3,4
MR ANKUR Y OZA(2821) for the Respondent(s) No. 1.1,1.2,1.3,1.4,1.5
NOTICE SERVED BY DS for the Respondent(s) No. 7.1,7.2,7.3
NOTICE UNSERVED for the Respondent(s) No. 5,6
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 05/02/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate Mr. Ankur Oza waives service of notice of rule on behalf of contesting respondents. The presence of other respondents are not required. With the consent of the learned advocates Page 1 of 20 Uploaded by SALIM(HC01108) on Sat Feb 15 2025 Downloaded on : Sat Feb 22 00:11:27 IST 2025 NEUTRAL CITATION C/SCA/21319/2017 JUDGMENT DATED: 05/02/2025 undefined appearing for the respective parties, present application is taken up for final hearing.
2. Heard learned senior counsel Mr. Dhaval Dave with learned advocate Mr. Jigar Patel for the petitioners and learned advocate Mr. Ankur Oza for the contesting respondents.
3. The present application is filed under Article 227 of the Constitution of India seeking following relief :-
"A) This Hon'ble Court may be pleased to issue a writ of, or in the nature of, certiorari or any other appropriate writ, order or direction quashing and setting aside the order dated 10-10-2017 passed by Court of 4th Additional Senior Civil Judge, Bhavnagar below an application Exh.126 filed on behalf respondent nos.1/1 to 1/5 in the proceedings of Regular Civil Suit No.1151 of 2008 and be further pleased to reject the aforesaid application-Exhibit 126 filed on behalf of respondent nos.1/1 to 1/5 in the proceedings of Regular Civil Suit No.1151 of 2008;
B) Pending admission, disposal and final hearing of the above numbered writ petition, this Hon'ble Court may be pleased to stay order dated 10-10-2017 passed by Court of 4 th Additional Senior Civil Judge, Bhavnagar below an application Exh.126 filed on behalf of respondent nos.1/1 to 1/5 in the proceedings of Regular Civil Suit No.1151 of 2008.
C) Ad interim relief in terms of afore-said clause may kindly be granted;
D) Such other(s) and further relief(s) which this Hon'ble Court may deem fit to be granted in the interest of justice."
4. The relevant facts which are necessitated to resolve the Page 2 of 20 Uploaded by SALIM(HC01108) on Sat Feb 15 2025 Downloaded on : Sat Feb 22 00:11:27 IST 2025 NEUTRAL CITATION C/SCA/21319/2017 JUDGMENT DATED: 05/02/2025 undefined controversy involved in the present petition as under :-
4.1 The petitioners herein are original defendants of Regular Civil Suit No. 1151 of 2008 filed by the predecessor of the respondents namely Jayendrabhai Hargovinddas Shah, which is pending before the Senior Civil Judge, Bhavnagar.
4.2 The original plaintiff has filed probate application No. 52 of 1994 seeking probate of Will executed by Kasturben on 28.07.1959, who happens to be mother of plaintiff as well as defendants. As there was an objection raised by defendants - the other legal heirs of late Kasturben, the aforesaid probate application converted into the aforesaid Regular Civil Suit.
4.3 The respondent Nos. 1/2 to 1/5 herein are legal heirs of the respondent - plaintiff also have independently instituted Special Civil Suit No. 45 of 1994 before the Civil Judge, (Senior Division), Bhavnagar against the petitioners seeking permanent injunction thereby restraining the petitioners from dealing with the suit property.
4.4 The predecessor of petitioner No.1 namely Mr. Pravinbhai Hargovinddas Shah also instituted Special Civil Suit No. 96 of 1996 before the Civil Judge, (Senior Division), Page 3 of 20 Uploaded by SALIM(HC01108) on Sat Feb 15 2025 Downloaded on : Sat Feb 22 00:11:27 IST 2025 NEUTRAL CITATION C/SCA/21319/2017 JUDGMENT DATED: 05/02/2025 undefined Bhavnagar against the respondents seeking partition of suit properties.
4.5 All these aforesaid three suits are consolidated and evidence was ordered to be recorded in the proceedings of probate application No. 52 of 1994 which is now converted into Regular Civil Suit No. 1151 of 2008. The issues were framed on 31.07.2001 by the trial Court.
4.6 The contesting respondent 1/1 herein - Samirbhai Jayendrabhai Shah has submitted affidavit of examination-
in-chief (Exh. 124) in lieu of oral evidence wherein he has referred Will dated 04.01.1949 and 28.07.1959 executed by the late Hargovinddas Dhanjibhai Shah and Kasturben Hargovinddas Shah respectively.
4.7 The respondent No1/1 submitted an application below Exh. 126 thereby requested the trial Court to exhibit the aforesaid both these Will. It is so contended in the impugned application that both these Will are more than 30 yrs. old than as per the Section 90 of the Indian Evidence Act, 1872 may be exhibited. It is further contended in the impugned application that both these Will are properly executed and attested and there is no need to lead any additional evidence to bring those Wills in evidence thereby, same can be Page 4 of 20 Uploaded by SALIM(HC01108) on Sat Feb 15 2025 Downloaded on : Sat Feb 22 00:11:27 IST 2025 NEUTRAL CITATION C/SCA/21319/2017 JUDGMENT DATED: 05/02/2025 undefined exhibited.
4.8 The petitioners herein have objected the impugned application by filing their detailed reply below Exh. 130.
4.9 After hearing the parties, the trial Court vides its impugned order dated 10.10.2017 has allowed the impugned application filed by respondent No. 1/1 herein below Exh. 126, thereby order for exhibit both these Will.
4.10 Being aggrieved and dissatisfied with the impugned order, the present petition is filed.
Submission of the learned advocate for the petitioner.
5. Learned senior counsel Mr. Dhaval Dave with learned advocate Mr. Jigar Patel for the petitioner would submit that the trial Court has exceeded its jurisdiction by ordering to exhibit both these Will contrary to the provisions of the Indian Evidence Act.
5.1 Learned senior counsel would submit that the trial Court has erroneously relied upon Section 90 of the Evidence Act by ignoring Section 68 of the Indian Evidence Act, which is mandatory in nature and applicable to proving and exhibit Page 5 of 20 Uploaded by SALIM(HC01108) on Sat Feb 15 2025 Downloaded on : Sat Feb 22 00:11:27 IST 2025 NEUTRAL CITATION C/SCA/21319/2017 JUDGMENT DATED: 05/02/2025 undefined the Will.
5.2 He would further submit that Section 90 of the Indian Evidence Act would not apply in the facts of the case as Will can be exhibited by fulfilling the requirement of Section 68 of the Indian Evidence Act and unless and until the plaintiffs examined any one witness to the Will, such Will could not have been exhibited.
5.3 Learned senior counsel would further submit that Section 90 of the Indian Evidence Act would apply to a document which is general in nature wherein there is no requirement to examine any witness to use it in the evidence.
5.4 Learned senior counsel would submit that recourse to Section 90 of the Indian Evidence Act is permissible to any party to prove their evidence but admittedly in evidence come from proper custody. He would further submit that both these Will are already challenged by the defendants including its existence then, recourse of evidence of Section 90 of the Indian Evidence Act was not permissible.
5.5 Learned senior counsel would submit that when the Will are challenged by the defendants, burden is upon the plaintiff to discharge by examining any of the witnesses to Page 6 of 20 Uploaded by SALIM(HC01108) on Sat Feb 15 2025 Downloaded on : Sat Feb 22 00:11:27 IST 2025 NEUTRAL CITATION C/SCA/21319/2017 JUDGMENT DATED: 05/02/2025 undefined the Will, which is a mandatory requirement as per Section 68 of the Indian Evidence Act which can not be dispensed with in any case.
5.6 To buttress his argument, learned senior counsel would reply upon the following decisions of the Hon'ble Apex Court in the cases of (i) Bharpur Singh and others Vs. Shamsher Singh reported in (2009) 3 SCC 687, (ii) M.B. Ramesh (D) by Lrs. Vs. K.M. Veeraje Urs (D) by Lrs and others reported in AIR 2013 SC 2088(1), (iii) Shalimar Chemical Works Ltd. Vs. Surendra Oild and Dal Mills (Refineries) and others reported in (2010) 8 SCC 423 and (iv) Smt. Prem Devi and another Vs. Bholanath Gattani reported in AIR 2015 Rajasthan 200.
5.7 Making above submission, learned senior counsel for the petitioner would request this Court to allow the present petition and quash the impugned order.
Submission of the learned advocate for the contesting respondents
6. Learned advocate Mr. Ankur Oza for the contesting respondents would submit that there is no error much less any jurisdictional error committed by the trial Court while allowing the impugned application below Exh. 126, thereby Page 7 of 20 Uploaded by SALIM(HC01108) on Sat Feb 15 2025 Downloaded on : Sat Feb 22 00:11:27 IST 2025 NEUTRAL CITATION C/SCA/21319/2017 JUDGMENT DATED: 05/02/2025 undefined this Court having its limited jurisdiction under Article 227 of the Constitution of India may not interfere in the impugned order.
6.1 Learned advocate for the respondent would submit that it is undisputed fact that both these Will which are more than 30 years old and as per Section 90 of the Indian Evidence Act, the Wills / documents can be exhibited which is rightly done so by the trial Court.
6.2 He would further submit that the trial Court has assigned valid and cogent reason while allowing the impugned application for exhibiting those Wills which may be interfered by this Court.
6.3 Learned advocate for the respondent would submit that respondent No.1/1 herein has referred both the Wills in his examination-in-chief at Exh. 124 and when the original Wills are submitted on record, the same is required to be exhibited which is permissible in law.
6.4 He would further submit that so far as Section 68 of the Indian Evidence Act is concerned those in relation to proving of the Wills which would arise after exhibiting the Wills. He would states that the witnesses of both the Wills are not Page 8 of 20 Uploaded by SALIM(HC01108) on Sat Feb 15 2025 Downloaded on : Sat Feb 22 00:11:27 IST 2025 NEUTRAL CITATION C/SCA/21319/2017 JUDGMENT DATED: 05/02/2025 undefined alive and it will not be possible for the plaintiffs to examine those witnesses to the Wills and in such a situation, if the Wills would not be allowed to be exhibited, the purpose of filing probate application by the original plaintiff would be frustrated. He would request this Court not to entertain the present petition.
6.5 Making above such submissions, he request this Court to dismiss the present petition.
6.6 No other and further submissions have been made by the learned advocate for the respondents.
ANALYSIS
7. The short controversy which arise for consideration of this Court in relation to exhibit the Will on the strength of age of the Will instead of following requirement to Section 67 and or 68 of the Evidence Act as the case may be.
Points for Determination.
(i) Whether Section 90 of the Indian Evidence Act would be applicable while ordering to exhibit the Will which are undisputedly more than 30 years old or not?.Page 9 of 20 Uploaded by SALIM(HC01108) on Sat Feb 15 2025 Downloaded on : Sat Feb 22 00:11:27 IST 2025
NEUTRAL CITATION C/SCA/21319/2017 JUDGMENT DATED: 05/02/2025 undefined 7.1 It is undisputed that both these Will are more than 30 years old and disputed by the defendants (petitioners) thereby, it is burden upon the plaintiff to discharge about the existence of the Wills and to prove its contents in accordance with law.
7.2 The plaintiffs appear to have submitted the impugned application for exhibiting the Wills on placing reliance of Section 90 of the Indian Evidence Act. Per contra, the defendants have objected of exhibiting such Wills as according to the defendants, Section 90 of the Indian Evidence Act would not apply at all and it would be contended that procedure envisaged in Section 68 of the Indian Evidence Act requires to be undertaken by the plaintiffs to exhibit the Wills which is a requirement of law whereby, Wills can be used in evidence.
7.3 To better understood and to resolve the controversy involved in the present petition, it is necessitated and rely upon the relevant provisions of Sections 68 and 90 of the Indian Evidence Act as well as Section 63 of the Indian Succession Act, which reads as under :-
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68. Proof of execution of document required by law to be attested.
If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence :
[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.] [Inserted by Act 31 of 1926, Section 2.]
90. Presumption as to documents thirty years old.
Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purport to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. Explanation. - Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable.This explanation applies also to section 81.
Illustrations
(a) A has been in possession of landed property for a long time. He produces from his custody deeds relating to the land, showing his titles to it. The custody is proper.
(b) A produces deeds relating to landed property of which he is the mortgagee. The mortgagor is in possession. The custody is proper.
(c) A, a connection of B, produces deeds relating to lands in B's possession, which were deposited with him by B for safe custody. The custody is proper.
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63. Execution of unprivileged Wills.-- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
7.4 The plain reading of Section 68 of the Indian Evidence Act would suggest that If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution.
7.5 There is no cavil as per Section 63(c) of the Indian Succession Act, 1925 that every unprivileged Will by testator shall have to be attested by two or more witnesses. So, it is mandatory requirement under law to have at least two or more witnesses attesting the Will then it would be Page 12 of 20 Uploaded by SALIM(HC01108) on Sat Feb 15 2025 Downloaded on : Sat Feb 22 00:11:27 IST 2025 NEUTRAL CITATION C/SCA/21319/2017 JUDGMENT DATED: 05/02/2025 undefined considered as a valid Will in the eye of law.
7.6 Now, in view of the aforesaid provision and reading Section 68 of the Evidence Act with Section 63 (c) of the Indian Succession Act would clearly suggest that Will which is reacquired to be attested by the witnesses can not be used in the evidence until one attesting witness to Will has been called as a witness for the purpose of providing its execution.
7.7 Thus, unless and until any one attesting witness of the Will, has been called upon for the purpose of proving his execution, such Will which is already disputed by the defendants can not be used as evidence. If it be so, question of exhibiting such Wills would not arise.
7.8 The trial Court has completely went wrong by placing reliance upon Section 90 of the Evidence Act, which is general provision. Whereas, Section 68 of the Evidence Act is mandatory requirement in relation to proving of execution of document required by law to be attested. According to my view, in a case of Will, when there is mandatory requirement of law i.e. Section 68 of the Evidence Act whereby to use the Will in evidence, at least one attested witness is required to be examined by the plaintiff for providing its execution.
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7.10 The Hon'ble Apex Court in the case of Bharpur singh (supra) wherein it is held as under in Para-19, which reads a under :-
"19 The provisions of Section 90 of the Evidence Act, 1872 keeping in view the nature of proof required for proving a will have no application. A will must be proved in terms of the provisions of Section 63(c) of the Succession Act, 1925 and Section 68 of the Evidence Act, 1872. In the event the provisions thereof cannot be complied with, the other provisions contained therein, namely, Sections 69 and 70 of the Evidence Act providing for exceptions in relation thereto would be attracted. Compliance with statutory requirements for proving an ordinary document is not sufficient, as Section 68 of the Evidence Act postulates that execution must be proved by at least one of the attesting witnesses, if an attesting witness is alive and subject to the process of the court and capable of giving evidence. (See B. Venkatamuni v. C.J. Ayodhya Ram Singh, SCC p. 458, para 19.)"
(emphasis supplied) 7.11 The Hon'ble Apex Court in the case of N.B. Ramesh (D) by Lrs. (supra) wherein it is held as under in Para-15 & 16, which reads a under :-
"15. At the same time we cannot accept the submission on behalf of the respondents as well that merely because the Will was more than 30 years old, a presumption under Section 90 of the Indian Evidence Act, Page 14 of 20 Uploaded by SALIM(HC01108) on Sat Feb 15 2025 Downloaded on : Sat Feb 22 00:11:27 IST 2025 NEUTRAL CITATION C/SCA/21319/2017 JUDGMENT DATED: 05/02/2025 undefined 1872 (Evidence Act for short) ought to be drawn that the document has been duly executed and attested by the persons by whom it purports to have been executed and attested. As held by this Court in Bharpur Singh v. Shamsher Singh reported in 2009 (3) SCC 687: (AIR 2009 SC 1766: 2009 AIR SCW 1338), a presumption regarding documents 30 years old does not apply to a Will. A Will has to be proved in terms of Section 63 (c) of the Succession Act read with Section 68 of the Evidence Act,
16. That takes us to the crucial issue involved in the present case, viz. with respect to the validity and proving of the concerned Will. A Will, has to be executed in the manner required by S. 63 of the Succession Act. Section 68 of the Evidence Act requires the will to be proved by examining at least one attesting witness, Section 71 of the Evidence Act is another connected section "which is permissive and an enabling section permitting a party to lead other evidence in certain circumstances", as observed by this Court in paragraph 11 of Janki Narayan Bhoir v. Narayan Namdeo Kadam reported in 2003 (2) SCC 91:
(AIR 2003 SC 761 (Para 12)) and in a way reduces the rigour of the mandatory provision of Section 68. As held in that judgment Section 71 is meant to lend assistance and come to the rescue of a party who had done his best, but would otherwise be let down if other means of proving due execution by other evidence are not permitted. At the same time, as held in that very judgment the section cannot be read to absolve a party of his obligation under Section 68 of the Evidence Act read with Section 63 of the Succession Act to present in evidence a witness, though alive and available. The relevant provisions of these three sections read as follows:-
"Section 63 of the Succession Act "63. Execution of unprivileged Wills.- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:-
(a) .....
(b) ..........Page 15 of 20 Uploaded by SALIM(HC01108) on Sat Feb 15 2025 Downloaded on : Sat Feb 22 00:11:27 IST 2025
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(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
Section 68 of the Evidence Act "68. Proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence..."
Section 71 of the Evidence Act "71. Proof when attesting witness denies the execution. If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence."
(emphasis supplied) 7.12 The Hon'ble Apex Court in the case of Smt. Prem Devi (supra) wherein it is held as under in Para-12 :-
12. In view of the above legal proposition, in my considered view, the Will must be proved in terms of the provision of Section 63(c) of the Succession Act. 1925 and Section 68 of the Evidence Act, 1872.
Keeping in view the nature of proof required for proving a Will the provisions of Section 90 of Evidence Act, 1872 have no application. Therefore, no presumption could be drawn under Section 90 of the Evidence Act with regard to Will Ex.-2 dated 12/08/1940 which was said to be executed by Smt. Gulab Devi."
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"15. On a careful consideration of the whole matter, we feel that serious g mistakes were committed in the case at all stages. The trial court should not have "marked" as exhibits the xerox copies of the certificates of registration of trade mark in face of the objection raised by the defendants. It should have declined to take them on record as evidence and left the plaintiff to support its case by whatever means it proposed rather than leaving the issue of admissibility of those copies open and hanging, by marking them as exhibits h subject to objection of proof and admissibility. The appellant, therefore, had a legitimate grievance in appeal about the way the trial proceeded."
(emphasis supplied)
8. After going through the ratio of the aforesaid decisions, it is very much clear like a day that Section 90 of Evidence Act has no application in relation to proof of the execution of Will. The execution of Will must be proved in terms of the provisions of Section 63 (c) of the Indian Succession Act and read with Section 68 of the Indian Evidence Act. It is clearly held by the Hon'ble Apex Court in the case of M.B. Ramesh (supra) when merely because Will was more than 30 years old, the presumption under Section 90 of the Evidence Act can not be drawn.
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9. Moreover, as per the decision of the Hon'ble Apex Court in the case of Shalimar Chemical (supra) would also clear the doubts of any one minds that documents which was in fact can not be exhibited without proper leading the evidence when it is objected by the defendants. Both these Will are objected by the defendants then, it was incumbent upon the plaintiff to examine any one attesting witness of Will to use the Will as evidence. Such exercise requires to be undertaken by the plaintiff as same is mandatory requirement as per Section 68 of the Evidence Act, for the execution Will and after fulfilling it, Will could have been exhibited.
10. Learned advocate Mr. Ankuar Oza for the respondent during the course of his submission, submitted that testator to the Wills are not alive as on date thereby it would not be possible for the plaintiff to examine them before the trial Court. This situation is already taken care in the Evidence Act itself, whereby recourse to Section 69 of the Evidence Act can be undertaken by the plaintiffs to prove an execution of Will thereby it can be exhibited then after.
11. Thus, examining the issue germane in application from any angle, it leads to only one conclusion that the trial Court has committed serious error by allowing the application filed Page 18 of 20 Uploaded by SALIM(HC01108) on Sat Feb 15 2025 Downloaded on : Sat Feb 22 00:11:27 IST 2025 NEUTRAL CITATION C/SCA/21319/2017 JUDGMENT DATED: 05/02/2025 undefined by the plaintiff thereby exceeded its jurisdiction by exhibiting the Wills without following recourse to Section 68 and or Section 69 of the Evidence Act as the case may be.
CONCLUSION.
12. The upshot of the aforesaid discussions, observations and reasons, I am of the view that Section 90 of the Indian Evidence Act would not be applicable to exhibit the Will which may be more than 30 years old.
13. Thus, the impugned order suffers from jurisdictional error and requires to be interfered by this Court exercising its power under Article 227 of the Constitution of India to undone the gross error of law committed by the trial Court.
14. The impugned order dated 10-10-2017 passed by Court of 4th Additional Senior Civil Judge, Bhavnagar below an application Exh.126 is hereby quashed and set aside. Consequently, the impugned application filed by the original plaintiff below Exh. 126 is hereby rejected.
15. Both these Will are ordered to be de-exhibited. The trial Court is hereby directed to de-exhibit both these Wills in question.
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16. It is open for the plaintiffs to prove the execution of both the Wills by following procedure as envisaged under Section 68 and or Section 69 of the Indian Evidence Act as the case may be. Once such exercise will be undertaken by the plaintiffs, then after the trial Court may consider the exhibiting of Wills in accordance with law.
17. In view of above, the present application is hereby allowed to the aforesaid extent. Rule is made absolute. No order as to costs.
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