Case Note & Summary
The original plaintiff Kisnabai filed a suit for partition and separate possession of agricultural land Survey No. 17/1 at Alampur, admeasuring 3 Acre 69 Gunthas, with a well, electric motor pump, and residential house. The property was owned by Ramchandra and his brother Sheshrao. Kisnabai was the wife of Ramchandra, who died on 13.09.1974. After Ramchandra's death, his brother Sheshrao managed the property until his death on 18.10.1975, after which Kisnabai was denied her share and crops. She claimed half share in the property. The defendant Bhagwat Sheshrao Choudhary, son of Sheshrao, contended that Ramchandra had executed a Will (Exh.-65) on 20.05.1974 in his favour, and that there was a prior partition between Ramchandra and Sheshrao. The trial court accepted the Will and dismissed the suit, but granted maintenance to Kisnabai. Kisnabai appealed to the District Court under Section 96 of the Code of Civil Procedure, 1908, vide Regular Civil Appeal No. 98/1985. During the pendency of the appeal, Kisnabai died, and the present respondent Chakradhar Tukaram Thakare was brought on record as her legal heir based on a Will (Exh.-18) executed by Kisnabai in his favour. The appellate court allowed the appeal, holding that the Will (Exh.-65) was not duly proved as required by Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872, and granted half share to the plaintiff. The defendant filed the present Second Appeal. The High Court examined the evidence and found that the defendant had not examined any attesting witness to the Will. The scribe (PW-2) was examined but his testimony did not prove due attestation. The High Court held that the Will was not proved and dismissed the Second Appeal, confirming the appellate court's decree granting half share to the plaintiff.
Headnote
A) Hindu Succession - Partition - Widow's Share - Sections 6, 8, Hindu Succession Act, 1956 - Suit for partition by widow claiming half share in joint family property - Defendant claimed ownership through Will executed by deceased co-owner - Appellate Court reversed trial court's dismissal and granted half share - Held that the Will was not proved as per Section 63 of Indian Succession Act, 1925 and Section 68 of Indian Evidence Act, 1872, as attesting witnesses were not examined and execution was not established (Paras 1-10). B) Evidence - Will - Proof of Execution - Section 63 Indian Succession Act, 1925, Section 68 Indian Evidence Act, 1872 - The defendant failed to examine any attesting witness to the Will (Exh.-65) - The scribe's testimony alone is insufficient to prove due execution and attestation - Held that the Will must be proved by at least one attesting witness, and in absence thereof, the Will cannot be relied upon (Paras 5-9).
Issue of Consideration
Whether the Will (Exh.-65) executed by Ramchandra in favour of the defendant was duly proved as per law, and whether the plaintiff Kisnabai was entitled to half share in the suit property.
Final Decision
Second Appeal dismissed. The appellate court's decree granting half share to the plaintiff is confirmed.
Law Points
- Burden of proof of Will
- Section 63 Indian Succession Act
- 1925
- Section 68 Indian Evidence Act
- 1872
- Attestation of Will
- Partition suit
- Hindu Succession Act
- 1956
