DAYASHANKAR Vs. JAISHANKAR SINCE DECEASED

JUDGEMENT

(1.) This is defendants' first appeal under Sec. 96 of the Code of Civil Procedure (for brevity 'the C.P.C.') against the judgment and decree dated 21.09.2004 passed in Civil Suit No. 18-A/2002 by the 4th Additional District Judge (F.T.C.), Raigarh whereby and whereunder the plaintiff's suit has been decreed.

(2.) During the pendency of the appeal, appellant No.2 - Chandra Sekhar and respondent No.1/plaintiff have died and their legal representatives were brought on record. Facts of the case in brief are as under:-

(3.) Shri Ratan Pusty, learned counsel appearing for the appellants would submit: the Will deed is not genuine document; was got executed by the plaintiff in his favour taking disadvantage of late Samaru's old age and infirm; has not been proved in the manner, as required by Sec. 68 of Indian Evidence Act, 1872 (henceforth 'the Act of 1872) and Sec. 63 (c) of the Indian Succession Act, 1925 (henceforth the Act of 1925'); role of attesting witness No.2 Jitendra Kumar Mishra is shrouded with mystery; statement of propounder i.e. plaintiff (P.W.1) with regard to execution of attestation of the Will is contradictory to the statement of Tungbhadra Singh (P.W.2); the evidence of Tungbhadra Singh (P.W.2) falls short of requirement of Sec. 63 (c) of the Act of 1925 inasmuch as in his evidence, he nowhere says that either Jitendra Kumar Mishra had ever seen the testator signed or affixed his mark to the Will or said Jitendra Kumar Mishra had signed the Will in the presence of the testator; mere presence of both the witnesses is not sufficient to discharge the burden laid upon the propounder of the Will by Sec. 63 (c) of the Act of 1925 unless it is proved that each of them had seen the testator signing the Will and thereafter had also put their signature either conjointly or separately in the present of testator. It was further contended, the second attesting witness Jitendra Kumar Mishra had not supported the case of the plaintiff. In para - 6 of the cross-examination, he had specifically denied the suggestion put to him and had denied to have signed in presence of late Samaru.