Location: High Court of Orissa, Cuttack Date: 13-Dec-2025 13:09:46 IN THE HIGH COURT OF ORISSA AT CUTTACK C.M.P. No.584 of 2025 (In the matter of an application under Article 227 of the Constitution of India)

Dandapani Sahu …. Petitioner -versus-

Gavalapu Sairam and others …. Opposite Parties Advocate(s) appeared in this case:-

For Petitioner : Mr. P.K. Nanda, Advocate For Opposite Parties : None CORAM: JUSTICE B.P. ROUTRAY

JUDGMENT

11^th December 2025 B.P. Routray, J.

1. Heard Mr. P.K. Nanda, learned Advocate for the Petitioner. No- one appears for the Opposite Parties despite the notice is made sufficient on Opposite Parties 1 & 2. It needs to be stated here that Opposite Parties 1 & 2 being the Plaintiffs and the DHr are the contesting party in the cast at hand.

2. Present C.M.P. is directed against order dated 17.2.2025 of the learned Civil Judge, Berhampur passed in E.P. No.21 of 1997, wherein Location: High Court of Orissa, Cuttack Date: 13-Dec-2025 13:09:46 the prayer of the 3^rd party objector to examine the writer of the WILL as a witness has been refused.

3. Admittedly, the present Petitioner was not a party in the suit, i.e. T.S. No.56 of 1994, which was decreed in favour of the Plaintiffs and the suit land which was decreed in favour of the Plaintiffs was directed against Defendant No.1 to vacate the suit house and to deliver possession thereof to the Plaintiffs. During the execution proceeding, the present Petitioner filed a petition under Order 21 Rule 97 of the C.P.C. objecting his dispossession from the suit property on the ground that it was purchased by him in the year 1982 from the vendor, namely, G. Sundar Rao, who got the property by virtue of the registered WILL No.34 dated 27.06.1975. The suit property originally belonged to G.P. Simanchalam, who according to the Petitioner, executed the WILL in favour of the vendor of the Petitioner.

4. While adjudicating the claim of the Petitioner under Rule 97 of Order 21 of the C.P.C., the Petitioner wanted to examine the attesting witnesses and it is found that one of them is not available and another is dead. So, he filed a petition dated 04.02.2025 praying to examine the writer of the document (WILL) in order to prove the signature of the Location: High Court of Orissa, Cuttack Date: 13-Dec-2025 13:09:46 attesting witnesses thereof. This has been rejected by the learned trial court saying that the examination of the document writer is not permissible in terms of Section 3 of the Transfer of Property Act.

5. Section 63(c) of the Indian Succession Act specifies as follows:-

“(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.”

6. In the instant case, it remains undisputed that both the attesting witnesses of the WILL are not available to depose before the court. Undoubtedly, the alleged WILL relied by the Petitioner in his support is a registered Willnama and thus attached with certain statutory presumptions. In such premises, it would be relevant to refer Section 69 of the Indian Evidence Act which speaks that if no attesting witness can be found, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person. In Location: High Court of Orissa, Cuttack Date: 13-Dec-2025 13:09:46 K. Laxmanan v. Thekkayil Padmini, (2009) 1 SCC 354, it has been observed that;

“21. In the present case the scribe and one of the attesting witnesses to the w