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Jivaji Framroze Tarachand (Since ... vs Mr.Minoo S. Mistry (Since Deceased on 25 September, 2014
cites
Section 71 in The Indian Evidence Act, 1872 [Entire Act]
The Hindu Succession Act, 1956
The Code of Civil Procedure, 1908
Section 114 in The Indian Evidence Act, 1872 [Entire Act]
The Indian Evidence Act, 1872
Section 3 in The Indian Evidence Act, 1872 [Entire Act]
Section 63 in The Indian Evidence Act, 1872 [Entire Act]
Janki Narayan Bhoir vs Narayan Namdeo Kadam on 17 December, 2002
In my view, the Judgment of Supreme Court in case of Janaki Narayan
Bhoir Vs. Narayan Namdeo Kadam (supra) would thus clearly apply to the facts
of this case. In my view, since one of the alleged witness could not satisfy the
requirement of attestation of Will, the plaintiff ought to have examined the second
attesting witness for supplementing her evidence. The plaintiff is not absolved of
his obligation under Section 63 of the Indian Succession Act read with Section 68
of Indian Evidence Act. It is held by Supreme Court that if one witness fails to
prove the execution of the Will, the other witness is to be called for to supplement
his evidence. It is held by the Supreme Court that when one attesting witness is
examined and he fails to prove the attestation of the Will by examining the other
witness, there will be defiance in mandatory requirement under Section 68 of the
Indian Succession Act.
Romeo Anacleto D'Souza vs Edgar Havlock D'Souza on 20 December, 2013
135. This court in case of Romeo A.D'Souza vs. Edgar Havlock D'souza decided
on 20th December, 2013 in Testamentary Suit No.41 of 2006 has considered a
situation where there was no dispute by the plaintiff that the deceased was not
keeping good health. The witness examined by the plaintiff herself had deposed
that the said deceased was suffering from various diseases. In the said judgment it
is held that since the plaintiff ought to have produced the medical records and
could have examined the witnesses to demonstrate that the decease was not
suffering from paralytic stroke and elphantitis prior to the date of execution of the
Will and had withheld such evidence for consideration of this court which if would
have been produced, it would have been unfavourable to the plaintiff and thus
adverse inference against the plaintiff for not producing the medical records has
been drawn by this court under illustration (g) of Section 114 of Indian Evidence
Act, 1972. Paragraphs 55 to 59 and 63 of the said judgment read thus :-