JANKI NARAYAN BHOIR versus NARAYAN NAMDEO KADAM

Citation: [2002] SUPP. 5 S.C.R. 175 · Decided: 17-12-2002 · Supreme Court of India · Bench: DORAISWAMY RAJU · Disposal: Dismissed

Judgment (excerpt)

JANK! NARAYAN BHOIR 
•A 
v. 
NARA YAN NAMDEO KADAM 
DECEMBER 17, 2002 
[DORAISWAMY RAJU AND SHIVARAJ V. PATIL, JJ.] 
Succession Act, 1925/Evidence Act, 1872- Section 63/Sections 68 and 
71-Proving of execution of Will-Evidence of only a/testing witness and that 
B 
of the scribe-Non summoning of another a/testing witness, though available- C 
Held, evidence of only attesting witness does not satisfY mandatory requirements 
of Section 68-Section 71 has no applicability in such case-It is only a 
permissive and enabling provision. 
Respondent filed a suit for possession of the suit properties on the 
basis of a Will. The Will was signed by two attesting witnesses. During D 
trial one of the attesting witnesses and the scribe of the Will was examined, 
while second attesting witness was not examined. Trial court accepted the 
Will oli the basis of the evidence and decreed the suit. In appeal District 
Judge reversed the judgment of trial Court holding that the respondent 
had failed to prove the execution of the Will as only one attesting witness 
was examined and his evidence was not sufficient to establish that the Will E 
was duly executed. In second appeal High Court held that it was not 
necessary to examine both the attesting witnesses and in case one attesting 
witness examined. was unable to remember whether the other attesting 
witness was present and had signed, it was open to the court to rely upon 
surrounding circumstances as well as the testimony of other witnesses; and F 
that the scribe of the Will also could have been treated as an attesting 
witness as he had also signed the Will. 
In appeal to this court, appellant contended that the Will in question 
was not proved as required by law having regard to Section 63 of 
Succession Act, I 925 read with Section 68 of Evidence Act, 1872 as G 
attestation of the Will by two witnesses was not established; that High 
Court had committed an error in treating the scribe as an attesting witness 
when he did not sign as animo al/estendi; that the evidence of the one 
attesting witness examined did not establish attestation of the Will by 
another attesting witness; that the other attesting witness though available 
175 
II 
F6 
SUPREME COURT REPORTS [2002] SUPP. 5 S.C.R. 
A was not examined; and that the High Court committed and error in setting 
aside the judgment of first appellate court, which was based on proper 
appreciation of evidence, in the absence of any substantial question of law. 
Respondent contended that although Section 63 of Succession Act 
requires attestation of a Will at least by two witnesses but the Will could 
B be proved by examining one attesting witness as per Section 68 of Evidence 
Act and by leading other evidence as per Section 71 of Evidence Act. 
Dismissing the appeal, the Court 
HELD: I. On a combined reading of Section 63 of the Succession 
C Act, 1925 with Section 68 of the Evidence Act, 1872 it appears that a 
person propounding the Will has got to prove that the Will was duly and 
validly executed. That cannot be done by simply proving that the signature 
on the Will was that of the testator but must also prove that attestations 
were also made properly as required by clause (c) of Section 63 of the 
D Succession Act. Section 68 gives a concession to those who want to prove 
and establish a Will in a Court of law by examining at least one attesting 
witness even though Will..has to be attested at least by two witnesses 
mandatorily under Section 63 of the Succession Act. If one attesting witness 
can prove execution of the Will in terms or clause (c) of Section 63, viz., 
attestation.by two attesting witnesses in the manner contemplated therein, 
E the examination of other attesting witness examined, in his evidence has 
to satisfy the attestation of a Will by him and the other attesting witness 
in order to prove there was due execution of the Will .. If the attesting 
witness examined besides his attestation does not, in his evidence, satisfy 
the requirements of attestation of the Will by other witness also it falls 
F short of attestation of Will at least by two witnesses for the simple reason 
that the execution of the Will does not merely mean the signing of it by 
the testator but it means fulfilling and proof of all the formalities required 
under Section 63 of the Succession Act. Where one attesting witness 
examined to prove the Will under Section 68 of the Evidence Act fails to 
prove the due execution of the Will the

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