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1 - 4 of 4 (0.22 seconds)Section 3 in The Transfer Of Property Act, 1882 [Entire Act]
T.Ramesh And Others vs Laxmamma And Others on 20 June, 2017
It is for
the person who propounded the will not only to prove due
execution and attestation, but also to dispel the suspicious
circumstance shrowded if any around the will otherwise the due
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2017 (4) ALT 628
9 Dr. SSRB,J
AS.No.252 of 2012
execution and attestation like any compulsory attestable document
of evidence adduced is enough as held in the expression of
Ramesh supra referring to several expressions of the Apex Court.
It is important to say even taken for arguments sake that the
signature as of the attestors referred that of the plaintiff in Ex.B1-
will that itself is not enough to say that the will is proved in the
absence of due attestation as contemplated by Section 63 of the
Indian Succession Act by examination of one of the attestors at
least and as such, but for to appreciate from the evidence of D1 as
DW.1 and DW.3, two out of the three attestors including alleged
that of the plaintiff to Ex.B1-will, as to there is proof of due
execution of the will by the father of the plaintiff and defendants by
name Venkanna Raju on 27.09.1994 and in a sound and disposing
state of mind before his death on 01.11.1994 and as last will and
testament and as to there is any propounded influence and there
are any suspicious circumstances and the same could be dispelled
and cloud cleared and whether the evidence of DWs.1 & 3 proves
due attestation by due execution of they saw the testator signing
and while their signing seen by the testator. Here so far as DW.3
evidence concerned, in his cross examination he deposed that it is
after he attested the executant put his signature that itself no
compliance. The due attestation contemplated by Section 3 of the
Transfer of Property Act and the evidence of at least one of the
attestors of due attestation as required compulsory by Section 63
of Indian Succession Act. Thus leave about a stray sentence is not
enough but for to appreciate the evidence as a whole even from
that reading besides this stray sentence there is no clear evidence
from reading of the evidence of DW.3 as a whole of he saw when
10 Dr. SSRB,J
AS.No.252 of 2012
testator was signing and later he signed in the presence and seen
by the testator, as attestor. Once such is the case, leave about
DW.3 is not even an independent witness for co-employee with D2-
DW.2 since 1990 in same office and is interested there is no proof
of due attestation of the will by DW.3 as one of the attestors of the
will. Though it was not stated in so many words by the trial Court
this conclusion arrived by the trial Court is sustainable from what
is discussed supra in not giving credence to the evidence of DW.3.
Leave it apart, from there is only evidence of D1-DW.1 the other
attestor to the will who is no other than sister of plaintiff and D.2.
There is nothing to belie her evidence for she is otherwise also
entitled to share had there been no bequeath by their father in
favour of D.2 no Ex.B1-will as a testament. However, the fact
remains that even from the reply notice given by her (D.1) without
even notice served on her itself shows something fishy as a
circumstance in saying of sailing with D.2 to the claim of their
father executed Ex.B1-will in his lifetime that was attested by D.1
and plaintiff besides another person. It is not only that will is not
just created though unregistered and no reason for non-
registration leave about a mere non-registration no way fatal but
for if at all proved of due execution and attestation.
Section 105 in The Code of Civil Procedure, 1908 [Entire Act]
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