JANKI NARAYAN BHOIR versus NARAYAN NAMDEO KADAM

JANKI NARAYAN BHOIR versus NARAYAN NAMDEO KADAM

The Will was not proved as required by Section 63 of the Succession Act and Section 68 of the Evidence Act, as only one attesting witness was examined and did not prove attestation by the second witness (who was available but not examined). Section 71 was not applicable since the available attesting witness was not summoned, and the scribe cannot be substituted as an attesting witness without intention to attest.

Parties
Appellant: Janki Narayan Bhoir; Respondent: Narayan Namdeo Kadam
Jurisdiction
India
Judgment Date
17 December 2002
Procedural Posture
Civil Appeal / Appeal From Bombay High Court Judgment in Second Appeal No. 409 of 1985
Outcome
Appeal dismissed
Legal Topics
Proof of Execution of Will, Attestation Requirements Under Section 63, Succession Act, Examination of Attesting Witnesses Under Sections 68 and 71, Evidence Act
Succession Evidence Proof of Execution of Will Attestation Requirements Under Section 63, Succession Act Examination of Attesting Witnesses Under Sections 68 and 71, Evidence Act

Case Brief

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Parties

Janki Narayan Bhoir

Appellant

Narayan Namdeo Kadam

Respondent

Procedural Posture

Civil Appeal / Appeal From Bombay High Court Judgment in Second Appeal No. 409 of 1985

Legal Issues

  1. 1 Whether the execution and attestation of the Will comply with Section 63 of the Succession Act and Section 68 of the Evidence Act
  2. 2 Applicability of Section 71 of Evidence Act when only one attesting witness is examined and fails to prove attestation by another attesting witness

Ratio Decidendi

The Will was not proved as required by Section 63 of the Succession Act and Section 68 of the Evidence Act, as only one attesting witness was examined and did not prove attestation by the second witness (who was available but not examined). Section 71 was not applicable since the available attesting witness was not summoned, and the scribe cannot be substituted as an attesting witness without intention to attest.

Court Disposition

Appeal dismissed

Orders

  • Impugned judgment and decree of the High Court set aside
  • Judgment and decree of first appellate court restored