Case Note & Summary
The case involves a first appeal against the judgment and decree of the Civil Judge, Senior Division, Aurangabad, in Special Civil Suit No. 5 of 2000, whereby the trial court decreed the suit in favour of the original plaintiff (respondent herein) and declared that the will dated 10-10-1994 executed by late Farooque Mohd. Khan was duly proved and that the plaintiff was entitled to the suit property. The appellants, who were the original defendants, challenged the decree. The dispute pertains to the property of late Farooque Mohd. Khan, who died on 15-10-1994. The plaintiff claimed that the deceased executed a will on 10-10-1994 bequeathing the suit property to her. The defendants, who are the widow and daughter of the deceased, contested the will on the ground that it was not duly executed and attested as per law and that it was surrounded by suspicious circumstances. The trial court, after recording evidence, held that the will was proved and decreed the suit. The High Court, on appeal, examined the evidence and found that the will was allegedly signed by the testator in the presence of two attesting witnesses, but neither of the attesting witnesses was examined. The only witness examined by the plaintiff was the scribe, who was not an attesting witness. The court held that under Section 63(c) of the Indian Succession Act, 1925, a will must be attested by two or more witnesses, and under Section 68 of the Indian Evidence Act, 1872, at least one attesting witness must be called to prove the execution. Since the plaintiff failed to examine any attesting witness, the will was not proved in accordance with law. Additionally, the court noted suspicious circumstances: the will was executed when the testator was seriously ill, and the propounder did not explain why the testator's wife and daughter were present at the time of execution. The court held that the propounder failed to remove the suspicion. Consequently, the appeal was allowed, the trial court's decree was set aside, and the suit was dismissed.
Headnote
A) Succession Law - Proof of Will - Attestation Requirement - Indian Succession Act, 1925, Section 63(c) read with Indian Evidence Act, 1872, Section 68 - The court held that a will must be attested by two or more witnesses as required by Section 63(c) of the Indian Succession Act, and the propounder must prove the will by examining at least one attesting witness as required by Section 68 of the Evidence Act. In the absence of such proof, the will cannot be said to be duly proved. (Paras 10-15) B) Succession Law - Suspicious Circumstances - Propounder's Duty - Indian Succession Act, 1925 - The court held that when a will is surrounded by suspicious circumstances, the propounder must remove all legitimate suspicions by leading satisfactory evidence. In this case, the will was executed when the testator was seriously ill, and the propounder failed to explain the presence of the testator's wife and daughter at the time of execution, which raised suspicion. (Paras 16-20) C) Evidence Law - Examination of Attesting Witness - Indian Evidence Act, 1872, Section 68 - The court held that Section 68 mandates that an attesting witness must be called to prove the execution of a will. The trial court erred in relying on the evidence of a scribe who was not an attesting witness, and in not insisting on examination of at least one attesting witness. (Paras 12-14)
Issue of Consideration
Whether the will dated 10-10-1994 executed by late Farooque Mohd. Khan was proved in accordance with law, and whether the trial court erred in granting probate without proper proof of attestation.
Final Decision
The appeal is allowed. The judgment and decree dated 30-04-2013 passed by the Civil Judge, Senior Division, Aurangabad in Special Civil Suit No. 5 of 2000 is set aside. The suit stands dismissed. No order as to costs.
Law Points
- Will
- Proof of Will
- Attestation
- Indian Succession Act
- 1925
- Section 63(c)
- Indian Evidence Act
- 1872
- Section 68
- Suspicious Circumstances
- Propounder's Duty
