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2007 Supreme(SC) 751

MARKANDEY KATJU, S.B.SINHA
Benga Behera – Appellant
Versus
Braja Kishore Nanda – Respondent


Judgement Key Points

The will was not conclusively proved by the attesting witnesses. The primary attesting witness, who scribed the Will and claimed to be an attesting witness, failed to establish that he knew the testatrix personally or that she understood the contents and significance of the Will at the time of execution. Additionally, there were contradictions and inconsistencies in the witnesses' statements regarding the execution and attestation process, including whether the testatrix put her thumb impression in their presence and whether the Will was read over to her.

Furthermore, the evidence suggested that the attestation did not meet the legal requirements, as at least one attesting witness did not affirmatively prove the due execution of the Will. The court also considered other parameters such as the loss of the original Will, the suspicious circumstances surrounding its execution, and the credibility of secondary evidence like Xerox copies and certified copies, which were found to be unreliable.

Overall, the verification of the Will relied on multiple parameters, including the credibility and consistency of witnesses' testimonies, the circumstances of execution, and the evidence of registration and possession of the Will, rather than solely on the attesting witnesses' testimony. The court ultimately concluded that the burden of proof had not been satisfactorily discharged by the propounder, and the Will was not duly proved.


JUDGMENT

S.B. SINHA, J.:

1.Interpretation and application of Section 63 of the Indian Succession Act, 1925 as well as Section 68 of the Indian Evidence Act, 1872 vis-`-vis the requirements of proof of execution of a document falls for consideration in this appeal which arises out of the judgment dated 21.11.2002 in First Appeal.No.397/1990 of the High Court of Orissa at Cuttack. However, before we embark upon the said question, we may notice the facts of the matter in brief.

2.Admittedly, one Sarajumani Dasi was the owner of the property in question. She was aged about 70 years when a Will was allegedly executed by her on or about 15.1.1982. She expired on 5.6.1983. The beneficiary of the Will was the first respondent herein. The testatrix was living in a math known as Bharati Math at Puri. In the Will, she disclosed her profession to be "Singer of Bhajans and Kirtans". It is not in dispute that the first respondent was a complete stranger to the family. He is a businessman. His father was one of the disciples of late Taponidhi Ramakrushna Bharati Goswamy, who had founded the Math wherein the testatrix was living.

3.A deed of sale was also executed by the said Sarajumani Dasi
































































































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