If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence
Citation
CDJ 2003 SC 102
Janki Narayan Bhoir vs Narayan Namdeo kadam
Head note
Indian Succession Act Section 63 - Indian Evidence Act, 1872 - Section 68 ,Section 71 - "attestation" - suit for possession - trial court accepting the will on the basis of evidence and decreed the suit - First Appeal set aside the decree - second appeal - first appellate court and restored the judgment - hence the special leave - submits that the attestation of the witnesses was not established
(Para 1,2 and 3)
Indian Evidence Act 1872 - Section 68 - Proof of execution of document required by law to be attested - it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving it's execution -
(Para 7)
"71. Proof when attesting witness denies the execution - If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence"
(Para 7)
Held - In the case it was not established that the two witnesses attested the Will - lower Court did not indicate as to any substantial question of law that arose for consideration - no hesitation in holding that the lower Court committed a manifest error in reversing the judgment and decree of the first appellate court - impugned judgment and decree cannot be sustained hence, they are set aside - suit filed by the respondent-plaintiff shall stand dismissed.
(Para 13,14 and 15)
Case Law Referred :
1.Vishnu Ramkrishna & Ors. Vs. Nathu Vithal & Ors. AIR 1949 Bom. 266 (Para 12).
2.Mt. Manki Kaur Vs. Hansraj Singh & Ors. AIR 1938 Patna 301 (Para 13).
COMPARATIVE CITATIONS:
2003 (2) SCC 91, 2003 AIR(SC) 761, 2002 (10) JT 340, 2002 (9) Scale 628, 2003 (1) Supreme 297, 2002 (7) SLT 361, 2003 (3) SRJ 77, 2003 (1) AIR(SCW) 177, 2003 (1) CTC 308, 2003 (1) AD(SC) 74, 2003 (2) ALL MR 689, 2003 (4) BCR 358, 2003 (50) ALLLR 455, 2003 (2) ALLCJ 952, 2003 (3) ALLINDCAS 139, 2003 (2) ALD 45, 2003 AIR(SCW) 177, 2003 (1) OLR 372, 2003 (2) SCC 91, 2003 (1) LandLR 417, 2003 (2) GLR 1493, 2003 (2) GCD 1539, 2003 (2) CalHN 104 (Supp), 2003 CGLJ 190, 2003 (1) CCC 104, 2003 (1) UJ 708, 2003 (2) ICivC 348, 2003 (1) BLJR 673
(Para 1,2 and 3)
Indian Evidence Act 1872 - Section 68 - Proof of execution of document required by law to be attested - it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving it's execution -
(Para 7)
"71. Proof when attesting witness denies the execution - If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence"
(Para 7)
Held - In the case it was not established that the two witnesses attested the Will - lower Court did not indicate as to any substantial question of law that arose for consideration - no hesitation in holding that the lower Court committed a manifest error in reversing the judgment and decree of the first appellate court - impugned judgment and decree cannot be sustained hence, they are set aside - suit filed by the respondent-plaintiff shall stand dismissed.
(Para 13,14 and 15)
Case Law Referred :
1.Vishnu Ramkrishna & Ors. Vs. Nathu Vithal & Ors. AIR 1949 Bom. 266 (Para 12).
2.Mt. Manki Kaur Vs. Hansraj Singh & Ors. AIR 1938 Patna 301 (Para 13).
COMPARATIVE CITATIONS:
2003 (2) SCC 91, 2003 AIR(SC) 761, 2002 (10) JT 340, 2002 (9) Scale 628, 2003 (1) Supreme 297, 2002 (7) SLT 361, 2003 (3) SRJ 77, 2003 (1) AIR(SCW) 177, 2003 (1) CTC 308, 2003 (1) AD(SC) 74, 2003 (2) ALL MR 689, 2003 (4) BCR 358, 2003 (50) ALLLR 455, 2003 (2) ALLCJ 952, 2003 (3) ALLINDCAS 139, 2003 (2) ALD 45, 2003 AIR(SCW) 177, 2003 (1) OLR 372, 2003 (2) SCC 91, 2003 (1) LandLR 417, 2003 (2) GLR 1493, 2003 (2) GCD 1539, 2003 (2) CalHN 104 (Supp), 2003 CGLJ 190, 2003 (1) CCC 104, 2003 (1) UJ 708, 2003 (2) ICivC 348, 2003 (1) BLJR 673
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