SIMON Vs. GEORGE

JUDGEMENT

(1.) The appellant applied under S.276 of the Indian Succession Act to probate the Will executed by his father and mother jointly. That was contested by the first respondent. Thereupon it was converted as a suit. The suit was dismissed on the ground that the appellant failed to prove the Will satisfying the requirements in S.68 and 69 of the Indian Evidence Act. That finding is assailed in this appeal.

(2.) The appellant gave evidence as P.W. 1 We have gone through his evidence. He had never stated in his evidence that he did know the signature of the testator or that of the attestors to the said Will or that he had familiarity with their signatures. Even though, according to him the attesters hailed from the same locality, without examining any one of them, he closed his evidence. At the time of arguments before the court below, it was pointed out on behalf of the first respondent that the Will was not properly proved by examining the attesting witnesses. Finding that this was a lacuna, the appellant attempted to reopen the matter by filing an application to cite a witness who had been acquainted with the signature and handwriting of the testators as well as the attesters, as the attesters were no more. On terms, the application was allowed. It was thereupon PW.2 was summoned and examined. P.W.2 said that he knew the testators, one Cherappan Vaidyar and his wife Thanda and that the signatures in the Will are their signatures. He also stated that Vaidyar had told him about the execution of the Will. He identified their signatures. There is eloquent silence in his version about his familiarity with the attesting witnesses or their handwriting or signatures, which is mandatory in terms of S.69 of the Indian Evidence Act, 1872, when the attesters were not alive at the time when the Will was to be proved.

(3.) S.68 makes it clear that it was mandatory, in the case of a Will, to prove it by examining at least one attesting witness. In the absence of such evidence it must be proved that the attestation of one of the attesting witnesses at least is in the handwriting and the signature of that person and that the signature of the person executing the document is in the handwriting of that person. Therefore, it was incumbent to prove that there was proper attestation by an attesting witness at least. Unfortunately, no such aspect was elicited from RW. 2 and there was no whisper about the attestation or the familiarity of the signatures or handwriting of attesting witnesses. In the absence of evidence with regard to the attestation or the attesting witnesses, necessarily, the Trial Court cannot, but hold that the Will was not been proved, with the rigorous burden cast on the appellant in terms of S.68 or 69. So long as there is no such proof in terms of statute, we cannot find fault with the court below in dismissing the suit.