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Smt. Bainabai Wd/O Raghoji Wankhade vs Divisional Manager, Life Insurance ... on 4 April, 2018
cites
Section 387 in The Indian Succession Act, 1925 [Entire Act]
Section 11 in The Code of Civil Procedure, 1908 [Entire Act]
Section 372 in The Indian Succession Act, 1925 [Entire Act]
K. Laxmanan vs Thekkayil Padmini & Ors on 3 December, 2008
It was pointed out
that there were already two civil suits initiated between the parties, of
which one was pending at the trial stage and the other at the appellate
stage. It was contended that if the applicant had any grievance, she could
very well agitate the same in the said proceedings. The learned Counsel
appearing on behalf of contesting respondent nos. 7 to 10, relied upon the
judgments of the Hon'ble Supreme Court in the case of Ramesh Verma
(dead) through Legal Representatives vs Lajesh Saxena (dead) by
Legal Representatives and another, reported at (2017) 1 SCC 257,
K. Laxmanan vs Thekkayil Padmini and others, reported at
(2009) 1 SCC 354, Joginder Pal vs Indian Red Cross Society and
others, reported at (2000) 8 SCC 143, Janki Narayan Bhoir vs Narayan
Namdeo Kadam, reported at (2003) 2 SCC 91, M.L. Abdul Jabbar Sahib
vs H. Venkata Sastri and Sons and others etc., reported at
AIR 1969 SC 1147 and judgments of this Court in the case of Dinesh
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Ramchandra Sawant and others vs Shivaji Ramchandra Sawant,
reported at 2013(7) All MR 298 and Ashwinkumar s/o Kanakraj Gandhi
vs Laxmidas Bhagwandas Mehta deceased through Lrs. Laxmibai
w/o Laxmidas Mehta and others, reported at 2007(6) Mh.L.J. 819.
Joginder Pal vs Indian Red Cross Society & Ors on 29 September, 2000
In this regard it has been held by the Hon'ble
Supreme Court in the case of Joginder Pal (supra) as follows :
Janki Narayan Bhoir vs Narayan Namdeo Kadam on 17 December, 2002
It was pointed out
that there were already two civil suits initiated between the parties, of
which one was pending at the trial stage and the other at the appellate
stage. It was contended that if the applicant had any grievance, she could
very well agitate the same in the said proceedings. The learned Counsel
appearing on behalf of contesting respondent nos. 7 to 10, relied upon the
judgments of the Hon'ble Supreme Court in the case of Ramesh Verma
(dead) through Legal Representatives vs Lajesh Saxena (dead) by
Legal Representatives and another, reported at (2017) 1 SCC 257,
K. Laxmanan vs Thekkayil Padmini and others, reported at
(2009) 1 SCC 354, Joginder Pal vs Indian Red Cross Society and
others, reported at (2000) 8 SCC 143, Janki Narayan Bhoir vs Narayan
Namdeo Kadam, reported at (2003) 2 SCC 91, M.L. Abdul Jabbar Sahib
vs H. Venkata Sastri and Sons and others etc., reported at
AIR 1969 SC 1147 and judgments of this Court in the case of Dinesh
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10 040418 cra 68.15.odt
Ramchandra Sawant and others vs Shivaji Ramchandra Sawant,
reported at 2013(7) All MR 298 and Ashwinkumar s/o Kanakraj Gandhi
vs Laxmidas Bhagwandas Mehta deceased through Lrs. Laxmibai
w/o Laxmidas Mehta and others, reported at 2007(6) Mh.L.J. 819.
M. L. Abdul Jabhar Sahib vs H. V. Venkata Sastri & Sons & Ors on 4 February, 1969
14 040418 cra 68.15.odt
According to him, this nature of oral and documentary evidence placed on
record was sufficient to prove the fact that the said Will dated 05-06-2000
had been indeed executed by deceased Baban Wankhade and that the
burden on the applicant was sufficiently discharged. The Courts below
have taken a contrary view and they have not accepted the contentions
raised on behalf of the applicant. A perusal of the original Will deed dated
05-06-2000 at Exhibit-71 shows that the signatures and name of the
second attesting witness have been indeed scored out. The learned
Counsel appearing on behalf of respondent nos.7 to 10 has correctly relied
upon Section 63(c) of the Act of 1925 to contend that the Will shall be
attested by two or more witnesses and further it has been contended that
scribe of the Will cannot be treated as an attesting witness. Reliance has
been placed on the judgment of the Hon'ble Supreme Court in the case of
M.L. Abdul Jabbar Sahib (supra) and the judgment of this Court in the
case of Ashwinkumar (supra) in this context. It has been held in the
aforesaid judgments that in order to show valid attestation it is essential
that two or more witnesses have seen the executant sign the instrument or
have received from him a personal acknowledgment of his signature; with
a view to attest or to bear witness to such fact, each of them has signed the
instrument in the presence of the executant. It is essential that the witness
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should have put his signature animo attestandi, that is, for the purpose of
attesting that he has seen the executant sign or has received from him a
personal acknowledgment of his signature. If a person puts his signature
on the document for some other purpose, e.g, to certify that he is a scribe
or an identifier or a registering officer, he is not an attesting witness. In the
present case, the Courts below have taken into consideration the scoring
out of signatures and name of the second attesting witness while arriving
at the conclusion that the Will was not a believable document.