PARVATI SHARMA Vs. STATE

JUDGEMENT

(1.) TEST.CAS. 18/2007 & IAs 3314/2007(u/S.151 CPC), 6541/2007(u/S.151 CPC), 8968/2007(u/S.192, 247 & 269 of Indian Succession Act), 2680/2010, CCP 98/2007

(2.) The Will purports to have been executed in the presence of two attesting witnesses namely Mr. S.P.Tandon and Mr. J.P.Jain. The affidavit of Mr.S.P.Tandon has already been filed along with the petition. In his affidavit, Mr. S.P.Tandon had stated that late Shri Bishan Dass Sharma had signed the Will in his presence and the presence of other witness Mr. J.P.Jain, all of whom were present at the same time.

(3.) The execution of an unprivileged Will is governed by Section 63 of Indian Succession Act which, to the extent it is relevant, provides that the Will shall be attested by two or more witnesses, each of whom has seen the Testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the Testator, or has received from the Testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the Testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary. Section 68 of Evidence Act, to the extent, it is relevant, provides that if a document is required by law to be attested, it shall not be used as evidence until at least one attesting witness has been called for the purpose of proving its execution if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. Since the Will is a document required by law to be attested by at least two witnesses, the petitioner could have proved it by producing one of the attesting witnesses of the Will. The execution of the will has been duly proved by way of affidavit of the attesting witness Mr S.P. Tandon. The execution of the Will thus stands duly proved. There are no suspicious circumstances surrounding execution of Will in question.