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.

ORDER :

This Civil Revision Petition is filed by the petitioners, who were the respondents in Trust O.P.No.336 of 2009 on the file of the learned Chief Judge, City Civil Court, Hyderabad, aggrieved by its order dated 28.11.2018 passed in I.A.No.3395 of 2018 in the above O.P.

2. The respondent Smt. Nandamuri Lakshmi Parvathi had filed Trust O.P.No.336 of 2009 under Section 74 of the Indian Trust Act, 1920 to appoint her as Managing Trustee of the petitioner No.1 – Trust in terms of the supplemental Will dated 18.11.1995 executed by Sri late Nandamuri Taraka Rama Rao and to direct the trust members and their followers and henchmen not to interfere with her administration in the schedule premises. She relied upon the supplemental Will dated 18.11.1995, which was marked as Ex.P1. The said supplemental Will was stated to be executed by late N.T.Rama Rao in the presence of two witnesses J.Venkata Subbaiah and Y.Tirupathi Rao, as attestors of the said Will. She filed an application vide I.A.No.5347 of 2017 under Order XVI of CPC to issue summons to one Y.Madhav, S/o. Tirupathi Rao by filing an affidavit stating that she came to know that Y.Tirupathi Rao, one of the witnesses passed away and to identify his signature, requested to issue summons to the son of Tirupathi Rao by name Y.Madhav.

3. The said petition was dismissed by the trial court on 27.12.2017, as the petitioner therein i.e. Smt. Nandamuri Lakshmi Parvathi filed an affidavit stating that they were trying to procure the whereabouts of another attestor J.Venkata Subbaiah. Thereafter, she filed the affidavit of Sri Y.Madhav as PW.2. The respondents in the Trust O.P i.e. the petitioners herein filed I.A.No.783 of 2018 to eschew the evidence of PW.2, as the petition filed to summon him as a witness was already dismissed vide I.A.No.5347 of 2017. The chief affidavit of PW.2 was eschewed as per the orders passed in I.A.No.783 of 2018 dated 20.06.2018. Thereafter, the petitioner in the Trust O.P. i.e. Smt. Nandamuri Lakshmi Parvathi filed the chief affidavit of PW.3 Sri J.V.Prasad Rao, son of another attestor J.Venkata Subbaiah, wherein he stated in his affidavit that his father passed away 9 years ago and that his father informed him about the execution of the alleged Will dated 18.11.1995 and that he acted as one of the attestors. The petitioners herein filed I.A.No.3395 of 2018 to eschew the affidavit filed in lieu of chief examination of PW.3, contending that the affidavit was filed by a person, who was neither a signatory to the alleged Will nor the Will was scribed and executed in his presence. The genuineness of the Will could only be established in the manner provided under Section 68 of the Indian Evidence Act, 1872. Section 68 of the Indian Evidence Act, 1872 provided special procedure for proving a Will, as such, the general procedure of examining a person for identifying the signature to prove the execution of the Will, could not be invoked.

4. Learned counsel for the petitioner in the Trust O.P. filed counter submitting that both the witnesses of the said Will died, as such the respondent in I.A.No.3395 of 2018 intended to examine the son of the first witness in his personal capacity. Section 69 of the Indian Evidence Act, 1872 envisages the procedure when both the witnesses of the Will deed died. The respondent therein was at liberty to adduce evidence to protect her rights. He also further contended that the petition was filed after the Court appointed the Advocate Commissioner to record the cross-examinatio