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1 - 10 of 15 (0.23 seconds)Section 68 in The Indian Evidence Act, 1872 [Entire Act]
Section 63 in The Indian Succession Act, 1925 [Entire Act]
Section 90 in The Indian Evidence Act, 1872 [Entire Act]
Section 47 in The Indian Evidence Act, 1872 [Entire Act]
Section 45 in The Indian Evidence Act, 1872 [Entire Act]
Mrs. Sumangala T. Pai vs S. Sundaresa Pai And Ors. on 19 December, 1990
Relying on the decision of the
Division Bench of this court in Sumangala T.Pai V. Sundaresa
Pai (1991) KLT 246) it was argued that the identity of the
signature is a relevant matter and the evidence of an expert is
necessary to prove the signature in a case of this nature to prove
that Ext.X1 will was executed by the testator.
Babu Singh & Ors vs Ram Sahai @ Ram Singh on 30 April, 2008
11. The argument of the learned counsel appearing for
appellant is that as the evidence of PW1 establishes that the
attesting witnesses to Ext.X1 will are no more and hence the will
can only be proved as provided under Section 69 of Indian
Evidence Act. Though the learned counsel relying on the decision
of the Apex Court in Babu Singh's case (supra) argued that as the
defendants have not taken out summons to the attesting
witnesses or did not produce their death certificates, there is no
evidence to prove that the attesting witnesses were not available
for examination. But on the facts and evidence I cannot agree.
PW1 unambiguously deposed that both the attesting witnesses
are no more. DW2 at the time of his examination, though not in
chief examination, but in cross examination by the learned
counsel appearing for the 10th defendant deposed that both the
attesting witnesses are not alive. That version of DW2 was not
RSA 1070/2004 19
challenged by the plaintiff in cross examination. Though he was
asked whether he has produced the death certificates of the
attesting witnesses, there was not even a suggestion that the
witnesses were alive. In the light of this evidence, I do not find it
necessary for the first respondent to produce either the death
certificates of the attesting witnesses or to take out summons to
the attesting witnesses, to prove that they are not available for
examination. Though the learned counsel argued that the
admission of DW1 cannot be made use of, as she was aged 80
years, on going through the evidence of DW1, I do not find any
infirmity on her evidence due to her age as canvassed by the
learned counsel appearing for the first respondent. On the
evidence, it is absolutely clear that before the examination of
PW1, the attesting witnesses had died and therefore they were
not available for examination to prove execution of Ext.X1 will. If
that be so, the will could be proved only as provided under
Section 69 of the Indian Evidence Act. The question is whether
the defendants have succeeded in proving the will, as provided
under Section 69 of Indian Evidence Act.