Will Can’t Be Used As Evidence without Examining Attesting Witness Even If opposite Party Doesn’t Deny its Execution
Case: Malliga v. P. Kumaran
Coram: Justice N. Anand Venkatesh
Case No: SA No.241 of 2015
Court Observation: A person who wants to rely upon a Will has to necessarily prove the Will only in accordance with Section 68 of the Act. In the absence of attesting witness, the Will has to be proved in accordance with Section 69 and 70 of the Evidence Act. Section 63 of the Indian Succession Act provides for the manner in which a Will should be executed by the testator and the requirement of attesting witnesses”
“The above narrative leads to the inescapable conclusion that both the Courts below erred in acting upon Ex.A6 Will without the same being proved as per the mandate prescribed under the Evidence Act and both the Courts below erroneously acted upon the Will merely based on the stand taken by the defendant… “
This Court is of the considered view that there is no requirement to answer the substantial question of law that was framed at the time of admission of the second appeal, since the answer to that question will be the direct fall out of the answer that has been given to the Additional substantial question of law. In other words, the requirement to answer this substantial question of law will arise only if the Court is going to act upon Ex.A6 Will.
It therefore goes without saying that the main issue that was taken into consideration and decided, only revolved around the proof of Ex.A6 Will and hence, it will be left open to the plaintiff to initiate fresh proceedings and agitate his rights in the manner known to law.
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