SUDAMA PRASAD Vs. KAILASH SAI

JUDGEMENT

(1.) PLAINTIFF filed the suit for declaration of title in respect of agricultural land having an area of 12.11 Acres, Second Civil Judge Class II, Janjhgir by judgment and decree dated 30th October, 1978 passed in C.S. No. 59 -A of 1976, dismissed the suit. Aggrieved by the same, plaintiff filed Civil Appeal No. 24 -A of 1984 and the Second Additional District Judge, Bilaspur by Judgment and decree dated 28th March, 1985 allowed the appeal and decreed the plaintiff s suit. Aggrieved by the same, defendant has preferred this Second Appeal u/s. 100 of the Code of Civil Procedure. By order dt. 28.11.1985, the appeal was admitted on the following substantial question of law : - Whether the lower appellate Court is right in holding that the will, Ex. D -1 has not been proved as required under section 63 of the Succession Act -

(2.) FACTS necessary for the decision of the aforesaid substantial question of law are that the plaintiff claimed title over the property by succession whereas defendant claimed title by virtue of a will dated 5.7.1974. Trial Court on analysis of evidence on record found that the will dated 5.7.1974 is valid whereas lower appellate Court found the same to be invalid. Shri Sanjay Seth appearing on behalf of the appellant submits that the appellate Court committed an error of law in holding that the will executed in favour of the defendant is invalid. I do not have the slightest hesitation in rejecting the submission of shri Seth. It is relevant here to state that the will has been executed by two persons namely Sushila Bai and Kailash Bai. Kailash Bai has been examined and she has denied the existence of any such will. It is relevant here to state that there are two attesting witnesses to the purported will namely Nathuram and Baharta. They have not been examined by the defendant. Section 63 of the Indian Succession Act provides for mode of execution of un -privileged will. It is to be borne in mind that due execution of the will has to be proved like any other document, except as to special requirement of the attestation prescribed by Section 63 of the Indian Succession Act. Here in the present case the special requirement of attestation prescribed by Section 63 of the Indian Succession Act has not been proved. Lower appellate Court is right when it says that the will (Ex. D -1) has not been proved as required u/s. 63 of the Indian Succession Act. Substantial question of law framed is thus answered against the defendant.