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1995 DIGILAW 260 (RAJ)

Yatish Chand v. Kumud Sharma

1995-03-13

M.P.SINGH

body1995
Honble SINGH, J. — Pandit Jandalal Sharma was a Railway employee He owned a House No. AMC No. 479/27, Johans Ganj, Ajmer. He was married to Smt. Shyama Devi Sharma. They had no issue. He died on 21.3.1974 and Smt. Shyama Devi Sharma died on 29.4.1978. (2) Respondent Smt. Kumud Sharma is the daughter of Heera Lal who was the brother-in-law of Pandit Jandalal Sharma. The appellant is the grand-son of Pandit Jandalal Sharma. (3). Smt. Kumud Sharma filed a petition under Section 276 of the Indian Succession Act, 1925 on 25.5.1978 for grant of a Probate stating that Jandalal Sharma had adopted her as his daughter in her childhood and subsequently executed a will on 11.3.1974. (4). The appellant filed objection stating that Pandit Jandalal Sharma had neither adopted her as his daughter nor executed any will in her favour. It was a forged will. No probate could be granted in her favour. (5). The appellants case further was that he has been living since his childhood with Pandit Jandalal Sharma. He had an intention to adopt him, but on account of certain unavoidable circumstances, no formal adoption could take place in his life time. He had explicity expressed his intention to his wife Smt. Shyama Devi to adopt him as her son. (6). Widow Shyama Devi in order to fulfil the wishes of her husband adopted the appellant on 15.09.1977. The adoption deed was registered on 17.09.1977. Thereafter, she executed a registered will also on 25.1.1978. (7). After the death of Smt. Shyama Devi on 27.4.1978, appellant had filed a petition under Section 276 of the Indian Succession Act, for grant of Probate on 11.5.1978. (8). The appellants petition for grant of Probate was filed earlier than that of the respondent, but both the cases were not consolidated and were heard separately. Though, the respondent has filed the petition under Section 276 after filing of the similar petition by the appellant but her application has been disposed of first, granting her probate. Against that order, the present appeal has been filed. (9). The respondent in order to prove the will, examined B.D. Gaur (AW-1) as attesting witness. She herself appeared as AW-2 to prove the execution of the will. Murlidhar was examined as AW-3 and Smt. Kanti Devi Sharma as AW-4. (10). Against that order, the present appeal has been filed. (9). The respondent in order to prove the will, examined B.D. Gaur (AW-1) as attesting witness. She herself appeared as AW-2 to prove the execution of the will. Murlidhar was examined as AW-3 and Smt. Kanti Devi Sharma as AW-4. (10). On behalf of the appellant three witnesses, namely, Shyam Lal (DW-1), Radhey Shyam (DW-2) and appellant himself as DW-3 were examined. (11). Mr. Mehta appearing on behalf of the appellant contended that the will has not been proved in accordance with the law and as such the order passed by the learned District Judge is erroneous. (12). I have examined the statement of B.D. Gaur (AW-1) very carefully. He has miserably failed to prove the due attestation of the will as required under law. (13). The will has to be proved according to the provision of Section 63(C) of the Indian Succession Act, which runs as follows : — "63(C) The will shall be attested by two or witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no attestation shall be necessary." (14). While interpreting the scope of Section 63 (c) of the Indian Succession Act, the Supreme Court in the case of Girja Datta vs. Gangotri Datt (1), has held. :- "In order to prove the due attestation of the will the propounder of the will has to prove that A and B the two witnesses saw the testator sign the will and they themselves signed the same in the presence of the testator." (15). I have examined the merit of the case in the light of the law laid down by the Supreme Court. It is clear that the respondent No.l has led no evidence to prove that two attesting witnesses saw the testator sign the will and they themselves signed the will in the presence of the testator. I have examined the merit of the case in the light of the law laid down by the Supreme Court. It is clear that the respondent No.l has led no evidence to prove that two attesting witnesses saw the testator sign the will and they themselves signed the will in the presence of the testator. The learned District Judge while allowing the petition of the respondent has completely lost sight of Section 63 of the Indian Succession Act and the view expressed by the Honble Supreme Court in the case of Girja Datt vs. Gangotri (supra). (16). Mr. Bhandari appearing on behalf of the respondent relied upon a decision of the Supreme Court reported in Naresh Charan vs. Paresh Charan (2), in which the Supreme Court while considering the scope of Section 63 of the Indian Succession Act, has held : — "It cannot be laid down as a matter of law that because the witnesses did not state in examination-in-chief that they signed the will in the presence of the testator, there was no due attestation. It will depend on the circumstances elicited in evidence whether the attesting witnesses signed in the presence of the testator. This is a pure question of fact depending on appreciation of evidence. (17). In this case the Supreme Court has only added something more to the view expressed in the case of Girja Datt (supra). No contrary view has been expressed therein. (18). After giving my thoughtful consideration, I am of the view that the attesting witness B.D. Gaur has failed to prove the due attestation of the will which is first necessary ingredient to be considered while disposing of the application under Section 276 of the Indian Succession Act. Non consideration of the same vitiates the entire order of the learned District Judge. (19) For the reasons given above, the appeal succeeds and is allowed. The order of the learned District Judge dated 15.4.1991 is set aside.