The court affirmed that the execution of a Will must be proven according to Section 68 of the Indian Evidence Act, requiring attesting witnesses, and any deviation from this procedure is impermissible.

ORDER :

Mr. Vinit Kumar Mathur, J. - Heard learned counsel for the parties.

2. The present writ petition has been filed against the order dated 21.12.2022 passed by Additional Civil Judge No.2, Pali, whereby, the petitioners were not permitted to put "X" mark on the thumb impression of the executor of the Will.

3. Briefly noted facts in the present case are that the petitioners instituted a suit for permanent, mandatory injunction and declaration before the Additional Civil Judge No.2, Pali on the basis of a Will executed in favour of the petitioner No.1. In the trial Court, the Will executed in favour of the petitioner No.1 was exhibited as Ex.1. In the Will, the thumb impression is purported to have been made by the grandmother of the petitioner No.1. After the Will was exhibited as Ex.1, the petitioner No.1 wanted the thumb impression to be marked as "X". He submitted that the same was affixed by his grand-mother in his presence. The learned trial Court on the submissions made by the petitioners refused to mark the thumb impression as "X" vide its order dated 21.12.2022. Hence, the present writ petition has been filed by the petitioners.

4. Learned counsel for the petitioners vehemently argued that since the thumb impression on the Will was affixed by grandmother of the petitioner No.1 in his presence, therefore, he may be allowed to mark "X" on the thumb impression of the Will produced before the trial Court as Ex.1. It is also contended that the contention raised by the petitioners will not prejudice case of the respondents as they will have full liberty to cross-examine the petitioners. He, therefore, prays that the order dated 21.12.2022 passed by the trial Court may be quashed and set-aside.

5. Per contra, learned counsel for the respondent No.1 while opposing the submissions of the learned counsel for the petitioners submits that propounder of the Will cannot be allowed to prove the contents of the Will. He further submits that as per Section 68 of the Indian Evidence Act, 1872, the proof of execution of a document is required to be proved by an attesting witness and since the attesting witness is already available, the petitioners cannot be allowed to put mark "X" on the thumb impression of the executor of the Will as the same will be taken to be proved in favour of the petitioners who are the beneficiaries of the Will itself. Learned counsel also submits that the procedure has been provided under the Evidence Act for proving contents of the document placed before the trial Court and, therefore, recourse to the same is required to be adopted for proving contents of the document exhibited before the trial Court including the Will in the present case.

6. Learned counsel for the respondent No.1 submits that affidavit tendered by the petitioner No.1 does not contain any stipulation to the effect that the thumb impression of the grandmother of the petitioner No.1 was made in his presence. He, therefore, prays that the order dated 21.12.2022 passed by the learned trial Court is just and proper and does not call for any interference by this Court.

7. I have considered the submissions made at the Bar and gone through the relevant record of the case.

8. In the suit proceedings pending before the trial Court on the basis of the Will, the petitioner No.1 is claiming certain rights and, therefore, contents of the Will are sought to be proved by the petitioners on the ground that the thumb impression made by the grandmother of the petitioner No.1 was affixed in his presence and, therefore, the same should be marked as "X". The settled law in the present case is that the Will or the document is required to be proved in accordance with the provisions of the Indian Evidence Act, 1872.

9. As per Section 68 of the Indian Evidence Act, the document exhibited before the trial Court is required to be proved on the basis of the attesting witnesses, if they are alive and further to test the veracity of the same, the person/material which can show c