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1 - 9 of 9 (0.24 seconds)Section 63 in The Indian Succession Act, 1925 [Entire Act]
Balathandayutham & Anr vs Ezhilarasan on 16 April, 2010
40)], the Hon'ble Supreme Court has held that in order
to assess as to whether the WILL has been validly
executed and is a genuine document, the Propounder
has to show that the WILL was signed by the Testator
and that he had put his signatures to the Testament on
his own free will. The decision in Balathandayutham
and another vs. Ezhilarasan [(2010)5 SCC 770] also
refers to the nature of proof of the WILL.
Madhukar D. Shende vs Tarabai Aba Shedage on 9 January, 2002
21. Insofar as the suspicious circumstances, the
learned counsel for the defendants pointed out that the
said Sri Krishnappa and Sri P.S.Goud who claim to be
the witnesses to the WILL were examined as PWs.4 and
7 and the first plaintiff herein was examined as PW.9 in
the earlier suit in O.S.No.95/1980 filed for recovery of
money and the WILL also refers to the money that can
be received by the first plaintiff herein and as such they
have all connived in bringing about the WILL for mutual
benefit. The other circumstance pointed out is that late
Venkatswamy was not keeping well and had to be
assisted by a helper. The nature of the Trust has also
not been specified and is so vague that it is only an
attempt to exclude the defendant who is a natural class-
II heir of deceased Venkatswamy and knock off the
property is further contention. The learned counsel for
the plaintiff on the other hand contended that Sri
P.S.Goud being his Auditor was a natural witness and
the other witnesses were also known to late
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Venkatswamy, more particularly the first plaintiff is his
nephew being his sister's son. The object of creating a
Trust is also clear that he had no issues and the fact
that he was being looked after by a helper would
indicate that the defendant who is the brother had not
looked after him. Hence the properties were to be
applied for charitable purposes. The learned counsel
has also relied on the decision of the Hon'ble Supreme
Court in the case of Madhukar D.Shende vs. Tarabai
Aba Shedage [(2002)2 SCC 85] that mere conjecture or
unfounded suspicion is not sufficient to sway the
verdict that the WILL is not proved. Though having
noticed the rival contention, I do not find it necessary to
delve in detail since the points No.(i) and (iii) are already
held against the plaintiff. As such, the answer to point
No.(ii) would not be material.
Bibi Aisha & Ors vs Bihar Subai Sunni Majlis Avaqaf & Ors on 24 July, 1968
The endorsement
made on the certified copy of Ex.P3 that the document
at Ex.P1 is not forthcoming with the records is referred
to indicate that the WILL which had been marked in the
proceedings had been misplaced in the Court records
itself and therefore not available. The certified copy of
the order passed in CRP Nos.1603-1608/1988 disposed
of on 06.06.1988 is relied on to indicate that in the said
proceedings also there was reference to the WILL dated
22.09.1983. In that context, it is contended by the
learned counsel for the plaintiff that the photocopy of
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the WILL produced in the said circumstances could be
relied on as secondary evidence. The decisions in the
case of Mst.Bibi Aisha & others vs. The Bihar Subai
Sunni Majlis Avaqaf & others (AIR 1969 SC 253) and
in the case of Om Prakash vs. State (AIR 1957
Allahabad 388) are relied on for the said proposition of
law.
Section 60 in The Indian Evidence Act, 1872 [Entire Act]
The Code of Civil Procedure, 1908
Om Prakash vs State on 22 January, 1957
The endorsement
made on the certified copy of Ex.P3 that the document
at Ex.P1 is not forthcoming with the records is referred
to indicate that the WILL which had been marked in the
proceedings had been misplaced in the Court records
itself and therefore not available. The certified copy of
the order passed in CRP Nos.1603-1608/1988 disposed
of on 06.06.1988 is relied on to indicate that in the said
proceedings also there was reference to the WILL dated
22.09.1983. In that context, it is contended by the
learned counsel for the plaintiff that the photocopy of
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the WILL produced in the said circumstances could be
relied on as secondary evidence. The decisions in the
case of Mst.Bibi Aisha & others vs. The Bihar Subai
Sunni Majlis Avaqaf & others (AIR 1969 SC 253) and
in the case of Om Prakash vs. State (AIR 1957
Allahabad 388) are relied on for the said proposition of
law.
Smt Giddamma vs Smt Venkatamma (Dead By Lrs) on 16 February, 2009
17. Hence, the sole witness examined to prove the
WILL is the said PW.2. Though he has stated in his
evidence in chief that the Testator signed and thereafter
simultaneously the witnesses also signed, the same is in
the nature of the pre-drafted affidavit and in that
context, the admission in the cross examination that he
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had signed at the behest of P.S.Goud is to be kept in
perspective. In that context, the cross-examination
would disclose that PW.2 did not know much about late
Venkatswamy. This becomes more relevant in the
context, as to whether he would have been able to
identify the signature of late Venkatswamy. If this
aspect is kept in view, PW.2 has in fact not identified
and marked the signature of the Testator or the
witnesses to the WILL which includes the signatures of
PW-2 himself. The learned counsel for the defendants
has relied on the decision of the Hon'ble Supreme Court
in the case of Janki Narayan Bhoir -vs- Narayan
Nanddeo Kadam [(2003)2 SCC 91)] and the decisions
of this Court in the case of V.M. Neelakantaiah and
Another -vs- State of Karnataka by Chief Secretary
& Others (ILR 2006 Karn 4213); in the case of
Parappa & Others -vs- Bhimappa and Another (ILR
2008 Karn 1840) and in the case of Smt. Giddamma
and another vs. Smt.Venkatamma (Dead by LRS)
and others (ILR 2009 Kar 992) regarding proof of
WILL and the requirement thereto. The sum and
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substance of all the above decisions is with regard to
the requirement of a document as contemplated under
Section 63 of the Indian Succession Act and the manner
of proving the same as contemplated under Section 68
of the Evidence Act which requires atleast one witness
to be examined. In the case on hand, the WILL which is
marked at Ex.P4 no doubt indicates a signature at the
place where the Testator would normally affix the
signature and the signatures of two persons are seen at
the place where the witnesses are to sign. Hence,
insofar as the requirement under Section 63 of the
Indian Succession Act to consider a document to be a
WILL, the same stands satisfied but, the question is
whether such document has in fact been proved to be
the WILL of late Venkatswamy.
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