Case Note & Summary
The petitioner, original defendant No.1, challenged an order dated 12.9.2012 passed by the 6th Joint Civil Judge, Junior Division, Nashik, in a suit for partition and possession. The plaintiff had filed the suit challenging a sale deed in favor of defendant No.1. During evidence, defendant No.1 moved an application to produce secondary evidence (attested copy) of a will dated 9.3.1993 executed by the deceased Gajanan Sambhaji Salve. The trial court allowed the secondary evidence but directed that the execution of the will be proved under Section 68 of the Indian Evidence Act, 1872, by examining attesting witnesses. The petitioner contended that since the plaintiff had admitted the contents of the will in paragraph 3 of the plaint and in the affidavit in lieu of examination-in-chief, the document should be exhibited without further proof. The respondent opposed, arguing that a will must be proved in the manner prescribed by Section 68, i.e., by examining at least one attesting witness. The High Court, relying on Thayyullathil Kunhikannan & Ors. vs. Thayyullathil Kalliani & Ors., AIR 1990 Kerala 226, held that admission of contents does not prove execution of a will. The requirement of Section 68 is mandatory and cannot be dispensed with by admission. The trial court's order was correct and the petition was dismissed. The court clarified that the trial court had not rejected the secondary evidence but only directed that it be proved in accordance with law.
Headnote
A) Evidence Law - Secondary Evidence of Will - Section 68 Indian Evidence Act, 1872 - Admission of Contents - The trial court allowed secondary evidence of a will but directed that its execution be proved under Section 68 by examining attesting witnesses. The petitioner argued that the plaintiff's admission of the will's contents in the plaint dispensed with such proof. The High Court held that admission of contents does not prove execution; Section 68 mandates examination of at least one attesting witness to prove a will. The order of the trial court was upheld. (Paras 2-5)
Issue of Consideration
Whether a trial court can exhibit a will as secondary evidence without requiring proof of execution under Section 68 of the Indian Evidence Act, 1872, merely because the plaintiff admitted its contents in the plaint.
Final Decision
The High Court dismissed the writ petition, upholding the trial court's order that secondary evidence of the will is allowed but its execution must be proved under Section 68 of the Indian Evidence Act, 1872.
Law Points
- Secondary evidence of will can be admitted but execution must be proved under Section 68 of Indian Evidence Act
- 1872
- Admission of contents does not dispense with requirement of examining attesting witnesses
