Case Note & Summary
The appellant, Smt. Eugenia Rana, filed an appeal against the judgment and decree dated 30th April 1994 passed by the Civil Judge, Senior Division, Daman, in Special Civil Suit No. 1 of 1987. The suit was filed by the original plaintiff, Hirabai Hiralal Rana, seeking a declaration that she was the owner of certain properties and for partition. The appellant claimed under a will dated 10th October 1985 allegedly executed by one Hiralal Rana. The trial court dismissed the suit, holding that the will was not proved. The appellant challenged this dismissal. The High Court considered whether the will was duly executed and attested. The court noted that the propounder of the will must prove its execution by examining at least one attesting witness as required under Section 68 of the Evidence Act, 1872. In this case, no attesting witness was examined. The handwriting expert's opinion was inconclusive. The court found that suspicious circumstances existed, including the fact that the will was not registered and the propounder was a beneficiary. The court held that the appellant failed to dispel these suspicions. Consequently, the appeal was dismissed, and the trial court's judgment was upheld.
Headnote
A) Succession Law - Will - Proof of Will - Section 63 Indian Succession Act, 1925 - The court examined whether the will was executed and attested as per law - Held that the propounder must prove due execution and attestation, and where suspicious circumstances exist, they must be dispelled - In this case, the will was not proved as the attesting witnesses were not examined and the handwriting expert's opinion was inconclusive (Paras 1-10). B) Evidence Law - Attestation of Will - Section 68 Evidence Act, 1872 - The court noted that at least one attesting witness must be examined to prove execution of a will - Since no attesting witness was examined, the will remained unproved - Held that the trial court erred in relying on the will without proper proof (Paras 5-8).
Issue of Consideration
Whether the will dated 10th October 1985 was duly executed and attested in accordance with Section 63 of the Indian Succession Act, 1925, and whether the propounder dispelled suspicious circumstances surrounding its execution.
Final Decision
Appeal dismissed. Judgment and decree of the trial court upheld.
Law Points
- Will
- Proof of Will
- Attestation
- Suspicious Circumstances
- Indian Succession Act
- 1925 Section 63
- Evidence Act
- 1872 Section 68
