GOODS OF EDWIN GARLOW MARCELLINE Vs. STATE

JUDGEMENT

(1.) This is an application for grant of probate of the last will and testament of Edwin Garlow Marcelline, deceased. The petition is by Iris Phyllis Thomas and Eric Edwin Marcelline, being the daughter and son, respectively, of the deceased. The will had been attested by two witnesses, Donald Aubrey Mills and Stanley Norman Astor. The petition has been verified by Mr. Astor in the usual form as required under Section 281 of the Indian Succession Act. That section says that where an application is for probate, the petition should also be verified by at least one of the witnesses to the will and in the manner set out therein. It will be noted that the provisions of this section are merely supplementary and do not dispense with any other proof that may be necessary.

(2.) Under Section 68 of the Indian Evidence Act, if a document is required by law to be attested, it cannot be used as evidence until one attesting witness has been called for the purpose of proving execution. A will is a document which requires attestation by at least two witnesses. In my opinion, it is not sufficient to make such a verification and then straightaway ask for probate. One of the attesting witnesses must affirm an affidavit to prove the signature and execution of the will by the deceased. Where the other attesting witnesses have signed in his presence, the usual form is to say that the ex(sic) signed in his presence and the other attesting witnesses (sic) this case, therefore, such an affidavit should be (sic)

(3.) I do not think I need go into the question of what is the practice, because there being a specific provision of law, I do not think it is permissible to alter it by introducing a contrary practice. In my opinion, therefore, an affidavit should be filed by an attesting witness, in addition to the verification, but as no particular form of such affidavit is laid down by our rules, the affidavit would be sufficient if it contains the required particulars.