ARUN KUMAR SHARMA Vs. ASHOK KUMAR SHARMA

JUDGEMENT

(1.) Learned Trial Court declined to grant probate/Letter of Administration in respect of unregistered Will dated 25.5.1983 on the following ground. The Will was attested by Mr. S.L. Dutta, who is the only attesting witness. The Will did not fulfill the mandatory requirement of Sections 63 Clause (c) of the Indian Succession Act, 1925. The petition filed by the appellant was dismissed on 5.4.2005. Thereafter, the appellant/petitioner filed a review petition which was decided on 18.5.2005. As a matter of fact, the Will was also attested by one notary public. It was prayed that attestation by the notary public on the Will be taken as attestation by the second witness. Learned counsel for the appellant also cited an authority reported in Labh Singh and others vs. Piara Singh and another AIR 1984 Punjab and Haryana 270. In this case the facts were these. The Sub-Registrar testified that he had read over the Will to the testator who admitted having executed the same. The endorsement was then thumb- marked by the testator and signed by the Sub-Registrar. It was held that it would be reasonable to gather from these circumstances that the Sub-Registrar had not merely registered the Will formally but had appended his attestation for the purpose of attesting the fact that the testator had personally acknowledged his thumb impression on the document. Since the testator affirmed the contents of the Will and put his thumb impression on the endorsement in the presence of Sub-Registrar, the Sub-Registrar could also be considered to be an attesting witness of the Will. However this fact alone did not prove the compliance of Clause (c) of Section 63. The testimony of the Sub-Registrar may be sufficient to prove attestation of the Will by one witness but it does not establish the attestation of the second witness and it certainly cannot be taken to satisfy the mandatory provision of Section 63(c).

(2.) The Trial Court held that the above said judgment has no application to the facts of the present case. It was also pointed out that Mr. S.L. Dutta, who was examined as PW-1 did not state that deceased testator has executed his Will in his presence and in presence of the notary public. The Court opined that it cannot be said that the notary public had signed the Will in the capacity of attesting witness.

(3.) I have heard counsel for the parties. Learned counsel for the appellant has drawn my attention towards Section 63(c) of the Indian Succession Act, 1925: