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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MAULIK J.SHELAT
Late Dr Pravinbhai Hargovinddas Shah And Shailaben Pravinbhai Shah – Appellant
Versus
Late Jayendrabhai Hargovinddas And Late Saritaben Jayendrabhai Shah – Respondent
JUDGMENT :
MAULIK J.SHELAT, J.
1. Rule returnable forthwith. Learned advocate Mr. Ankur Oza waives service of notice of rule on behalf of contesting respondents. The presence of other respondents are not required. With the consent of the learned advocates appearing for the respective parties, present application is taken up for final hearing.
2. Heard learned senior counsel Mr. Dhaval Dave with learned advocate Mr. Jigar Patel for the petitioners and learned advocate Mr. Ankur Oza for the contesting respondents.
3. The present application is filed under Article 227 of the Constitution of India seeking following relief :-
“A) This Hon'ble Court may be pleased to issue a writ of, or in the nature of, certiorari or any other appropriate writ, order or direction quashing and setting aside the order dated 10-10-2017 passed by Court of 4th Additional Senior Civil Judge, Bhavnagar below an application Exh.126 filed on behalf respondent nos.1/1 to 1/5 in the proceedings of Regular Civil Suit No.1151 of 2008 and be further pleased to reject the aforesaid application-Exhibit 126 filed on behalf of respondent nos.1/1 to 1/5 in the proceedings of Regular Civil Suit No.1151 of 2008;
B) Pending admiss
Exhibiting Wills relies on witness testimony as dictated by Sections 63 and 68 of the Indian Evidence Act; Section 90's applicability is denied for Wills requiring attestation.
The presumption under Section 90 of the Indian Evidence Act does not apply to Wills, necessitating proof of execution and attestation by the propounder.
Point of Law - Section 16 (c) of the Act of 1963 provides that specific performance of a contract cannot be enforced in favour of a person who fails to prove that he has performed or has always been ....
The presumption of execution and attestation of a 'WILL' over 30 years old can be drawn under Section 90 of the Indian Evidence Act if produced from proper custody.
A will must be proven in accordance with statutory requirements; the presumption for documents over 30 years old does not apply to wills under Indian law.
(1) Presumption contemplated under Section 90 of Indian Evidence Act in respect of documents more than 30 years old does not apply to a Will.(2) Second Appeal – Scope of interference in a Second Appe....
The court affirmed that a Will's execution must be proven according to strict procedural standards, necessitating proof of attestor death before alternative witness testimonies are admissible.
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