FAO 269/2006 Page 1 of 11

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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FAO 269/2006

SURINDER KUMAR GROVER

..... Appellant

Through

Mr. R.K. Jain, Adv

VERSUS

STATE & ORS

.... Respondents

Through

Mr. Rajiv Bahl, Adv. for R-2 to 7.

CORAM:

HON'BLE MR. JUSTICE MOOL CHAND GARG

1.

Whether the Reporters of local papers may be allowed

Yes

to see the judgment?

2.

To be referred to Reporter or not?

Yes

3.

Whether the judgment should be reported in the Digest? Yes

:

MOOL CHAND GARG,J

1. The short point involved in this matter is as to whether the Will,

subject matter of the probate alleged to have been executed by late Sh

K.K.Grover, has been proved or not in accordance with law. The execution

of a Will can be proved by following provisions contained under Section 68

of the Evidence Act which reads as under:

“Section 68 - Proof of execution of document required by

law to be attested

If a document is required by law to be attested, it shall not be

used as evidence until one attesting witness at least has been

called for the purpose of proving its execution, if there be an

attesting witness alive, and subject to the process of the Court

and capable of giving evidence:

[Provided that it shall be necessary to call an attesting witness

in proof of the execution of any document, not being a Will,

which has been registered in accordance with the provisions of

the Indian Registration Act, 1908 (16 of 1908), unless its

execution by the person by whom it purports to have been

executed is specifically denied.”

2. However, how a Will is to be executed is provided for under Section

63 of the Succession Act which reads as under:

2011:DHC:403

FAO 269/2006 Page 2 of 11

“Section 63 - Execution of unprivileged Wills

Every testator, not being a soldier employed in an expedition or

engaged in actual warfare, [or an airman so employed or

engaged,] or a mariner at sea, shall execute his Will according

to the following rules:-

(a)

The testator shall sign or shall affix his mark to the Will,

or it shall be signed by some other person in his presence and

by his direction.

(b)

The signature or mark of the testator, or the signature of

the person signing for him, shall be so placed that it shall

appear that it was intended thereby to give effect to the writing

as a Will.

(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.”

3. A bare perusal of the aforesaid Section and in particular Section

63(c) shows that a Will has to attested by at least two witnesses who

should see the testator putting their signatures on the Will in their

presence and the testator to see attestation of the Will by the two witnesses

named therein.

4. It is the submission of the appellant that despite proof of the

execution of the Will in accordance with provisions contained under

Section 63 of the Succession Act and Section 68 of the Evidence Act, the

Court has not granted the probate and therefore has committed error. It is

therefore requested that the order passed by the Addl. District Judge

refusing to grant the probate be set aside.

5. On the other hand it is the case of the respondent that in this case

the execution of t