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2013 Supreme(Bom) 2121
BOMBAY HIGH COURT
R.D. DHANUKA, J.
Raju Muthaya Shetty - Deceased
Versus
Maharashtra Executor and Trustee Co. Ltd., Pune - Petitioner.
Testamentary Suit No. 46 of 1997 in Testamentary Petition No. 308 of 1997
Decided On : October 18, 2013
Advocate Appeared
Shailesh Shah, Senior Advocate with Smt. Mamta Sadh instructed by M/s. Zohair and Co. for applicant in Chamber Summons and defendant Nos. 4 and 5 in Suit.
For respondent Nos. 1 to 3: U.J. Makhija instructed by Ms. Manju Rajbhar
For plaintiff: Milind Shewale (in T.S. No. 46 of 1997)
The main legal point established is that under Section 63 of the Indian Succession Act, the proof of execution of a Will requires the testator's signature or mark, attestation by witnesses, and the signature of each witness in the presence of the testator.
Headnote:
Will Execution - Indian Succession Act - Section 63 - Summary
Fact of the Case:
The case involved the marking of a Will executed by the testator Mr. Raju M. Shetty on 9th August, 1995. The petitioner claimed that the Will was attested by two witnesses, while the caveators disputed its execution.
Finding of the Court:
The court found that the witness had proved the Will by deposing about the date and handwriting, and marked the Will as Exhibit 'A'.
Issues: Dispute over the execution of the Will, the requirement of the testator's signature on each page, and the evidentiary value of the witness's testimony.
Ratio Decidendi: The court held that the witness had proved the date in his own handwriting below the testimonium clause of the Will, and the evidentiary value of the evidence would be considered at the trial.
Final Decision: The Will and testament dated 9th August, 1995 was marked as Exhibit 'A' based on the witness's testimony.
1. The matter is placed on board for marking of Will dated 9th August, 1995 executed by the testator Mr. Raju M. Shetty. Some of the relevant facts for the purpose of marking this Will are as under:
2. It is the case of the petitioner that Raju Shetty, the testator who died on 29th November, 1996 had executed Will and testament dated 9th August, 1995. Petitioner was named as sole executor in the said Will. It is the case of the petitioner that the said Will was attested by two attesting witnesses. The said Will has been marked as X2 for identification.
3. The caveators have disputed the execution of the said Will. According to the petitioners, the said Will was attested by Mr. Dayanand Karkera and Mr. Mangesh Mulye, Officer of the petitioner. Mr. Dayanand Karkera died on 23rd April, 1999 which is prior to the filing of this petition. Mr. Mangesh Mulye had filed his affidavit regarding attestation on 10th December, 1997. On behalf of the petitioner, 5 witnesses have been examined. Mr. Shah, learned senior counsel appearing for defendant Nos. 4 and 5 who are supporting petitioners and who are beneficiaries under the said alleged Will, invited my attention to the oral evidence led by the witnesses examined by the petitioners. It is not in dispute that signature of the testator has been marked as Exh. P5. The signature of the attesting witnesses are marked as Exh. P6 and P7. The date mentioned in the Will however, is not marked. Mr. Shah, learned senior counsel invited my attention to the cross-examination of Mr. Sudhir Joshi who had participated in the preparation of the Will. In Para 6 of the cross-examination of Mr. Sudhir Joshi held on 2-3-2009 he has deposed that after the original Will was engrossed on the basis of the approved draft and delivered to the testator, he directly met the witness on the date when the Will was executed i.e. on 9th August, 1995. The testator came to him at about 10.00 a.m., on 9th August, 1995 and told him that the Will was to be executed on the same day itself. The witness has also deposed that the testator has tendered his signature on the original Will on page 5. The witness denied the suggestion that Mr. Karkera was not with the testator in the office of the petitioner in the morning on 9th August, 1995. The witness stated that Mr. Karkera had signed the Will in his presence.
4. Mr. Shah, learned senior counsel also invited my attention to the examination-in-chief and cross-examination of Mr. Mangesh Mulye who was one of the attesting witnesses. The said witness has also deposed that he had seen the testator tendering his signature. The said witness however, could not say as to who had filled in the blank portion in the Will “9th August, 1995” filled in hand. Witness has deposed that prior to 9th August, 1995, he had no occasion to personally interact with the deceased. He has deposed that he had tendered his signature on 9th August, 1995 on the document. He has further deposed that Dayanand Karkera has tendered his signature in his presence. In reply to the question as to how could he say that the Will was executed on 9th August, 1995, the witness replied that he stated so because the date 9th August, 1995 appeared on the document when the testator has tendered his signature in his presence.
5. Mr. Shah, learned senior counsel also invited my attention to other documents which are exhibited. The application cum proposal form which was filled in by the said deceased on 3rd August, 1995 has been marked as Exh. P3. Receipts/vouchers are marked as P4 collectively. The witness examined by the petitioner had also produced register showing the last entry in the said register showing the name of the deceased which is marked as Exh. P2. Mr. Shah, learned senior counsel placed reliance on the judgment of the Supreme Court in the case of Gopal Swaroop v. Krishna Murari Mangal, (2010) 14 SCC 266 and in particular paragraph 17 which reads thus:
“17. A careful analysis of the provisions of section 63 wou
