Case Note & Summary
The matter pertains to Testamentary Suit No. 46 of 1997 arising out of Testamentary Petition No. 308 of 1997 concerning the estate of Raju Muthaya Shetty, who died on 29th November, 1996. The petitioner, The Maharashtra Executor & Trustee Co. Ltd., is the sole executor appointed under the last Will and testament of the deceased dated 9th August, 1995. The caveators disputed the execution of the Will. The petitioner examined five witnesses, including the attesting witness Mangesh Mulye, who filed an affidavit regarding attestation on 10th December, 1997. The other attesting witness, Dayanand Karkera, died on 23rd April, 1999, prior to the filing of the petition. The court considered the oral evidence led by the petitioner, including the cross-examination of Mr. Sudhir Joshi, who participated in the preparation of the Will. The court noted that the signature of the testator was marked as Exh. P5, and the signatures of the attesting witnesses were marked as Exh. P6 and P7. The court held that the evidence of the surviving attesting witness and the circumstances sufficiently proved due execution of the Will under Section 63 of the Indian Succession Act, 1925. The court ordered that the Will be marked as an exhibit in the suit.
Headnote
A) Succession Law - Execution of Will - Proof of Attestation - Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872 - The court considered whether the Will was duly attested by two witnesses as required by law - The attesting witness Mangesh Mulye filed an affidavit and was examined, and the other attesting witness Dayanand Karkera died prior to filing of the petition - The court held that the evidence of the surviving attesting witness and the circumstances sufficiently proved due execution - The Will was ordered to be marked (Paras 2-3).
Issue of Consideration
Whether the Will dated 9th August, 1995 executed by Raju Muthaya Shetty has been duly proved in accordance with law for the purpose of marking it.
Final Decision
The court allowed the marking of the Will dated 9th August, 1995 executed by Raju Muthaya Shetty, holding that the evidence of the attesting witness and circumstances sufficiently proved due execution.
Law Points
- Execution of Will
- Attestation
- Proof of Will
- Section 63 Indian Succession Act
- 1925
- Section 68 Indian Evidence Act
- 1872
