JAGDISH PRASAD Vs. STATE

JUDGEMENT

(1.) Having successfully proved ownership of the testatrix (Late Mata Shantanand) through Ex.PW-1/3 in respect of property No.204, Block-7, Jheel Khureji, Geeta Coloney, Delhi and the death of the testatrix on November 13, 1984, the appellant has failed to obtain a probate of the Will Ex.PW-1/2, statedly executed by Late Mata Shantanand. The reasoning of the learned Single Judge is premised on a co-joint reading of Section 63 of the Indian Succession Act, 1925 read with Section 68 of the Indian Evidence Act, 1872 and three decisions of the Supreme Court reported as Girija Datt Singh Vs. Gangotri Datt Singh, 1955 AIR(SC) 346, Janki Narayan Bhoir Vs. Narayan Namdeo Kadam, 2003 2 SCC 91 and Banga Bihara Vs. Baraja Kishore Nanda, 2007 9 SCC 728, for the reason it was the claim of the appellant before the learned Single Judge that the two attesting witnesses of the Will were dead.

(2.) Pithily put, the learned Single Judge has held that as per Section 63 of the Indian Succession Act, 1925, a Will needs to be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will and each of the witnesses has signed the Will with the requisite 'animus attestandi'. On proof, reliance has been placed on Section 68 of the Indian Evidence Act, 1872, emphasizing that it enjoins, by way of proof, that a document required by law to be attested shall be proved by calling for the purpose of proving its execution, at least one attesting witness.

(3.) Three passages have been quoted from the three decisions. From the decision reported as Girija Datt Singh Vs. Gangotri Datt Singh, 1955 AIR(SC) 346, the quoted passage with respect to in what manner the propounder has to discharge the burden to prove the Will is as under:-