SREELATHA Vs. SANTHA

JUDGEMENT

(1.) Some interesting questions have come up for consideration as to whether it is necessary to prove a Will or a testament as against a stranger, who is not litigating under the testator, whether it is necessary to prove a Will or testament as mandated under Sec. 68 of the Evidence Act, when its execution is admitted or not specifically disputed, whether Sec. 58 of the Evidence Act is applicable in the matter of proof of such documents, whether the court can exercise its discretion under the proviso attached to that sec. so as to require the party to prove its execution inspite of admission and under what circumstance it can be exercised, who are the persons entitled to challenge the validity and execution of a testament or a Will and what actually amounts to "a person interested to deny" for the said purpose, besides the other issues pertaining to the dispute involved. It is a suit for a permanent prohibitory injunction and a mandatory injunction, wherein a counter claim was also raised by the defendants for declaration of title by adverse possession and limitation. The trial court dismissed the suit and decreed the counter claim, against which an appeal was preferred before the first appellate court. The first appellate court set aside the judgment and decree of the trial court and remanded the matter back to the trial court mainly for the purpose of proving due execution of Ext.A12 registered Will as mandated under Sec. 65 of the Evidence Act, against which, the defendants 2 to 4 came up.

(2.) It is a suit between the mother and the daughter. Daughter is the 2nd defendant and mother is the first plaintiff. The trial court found Ext.A12 registered Will not proved in accordance with the mandate under Sec. 68 of the Evidence Act and also found that the defendants have perfected title by adverse possession and limitation, thereby the suit was dismissed and the counter claim was decreed.

(3.) Admittedly, none of the defendants including the 2nd defendant daughter is not a person litigating under the testator, the father of first plaintiff. Ext.A12, the registered Will brought under challenge by the defendants mainly on the reason that it was not proved in accordance with the mandate under Sec. 68 of the Evidence Act and 63 of the Indian Succession Act. It is settled that the onus to prove the Will is on the propounder and he/she has to expel the suspicious circumstances surrounding the execution of the Will, if any and to prove the testamentary capacity of the testator besides the proof of the signature of the testator and its execution as mandated under Sec. 63 of Indian Succession Act. A reading of Sec. 63 of the Indian Succession Act with Sec.68 of the Evidence Act would show that a person propounding a Will has to prove that the Will was duly and validly executed and that should be done by not merely establishing that the signature on the Will was that of the testator, but also that the attestations were made in the manner contemplated by clause (c) of Sec. 63 of the Succession Act. It was endorsed by the Apex Court In Janki Narayan Bhoir v. Narayan Namdeo Kadam [(2003) (2) SCC 91 = AIR 2003 SC 761].