IN THE HIGH COURT OF JHARKHAND RANCHI
Misc. Appeal No. 220 of 2007
Alok Kumar Mallick ... ... ... Appellant
Versus
1.Janardan Mahadani
2.General Public of Village Bokaro Respondents
CORAM: THE HON'BLE MR. JUSTICE PRASHANT KUMAR
............
For the Appellant : M/s Amar Kumar Sinha,
Kundan Kumar Ambastha
For the the Respondents :
ORDER
7/06.05.2011
This Miscellaneous Appeal is directed against the
judgment dated 19.06.2007 passed by District Judge, Bokaro in Letter
of Administration Case No. 01 of 2001, whereby and whereunder
application for grant of letter of administration has been dismissed with
cost.
2. It is submitted by learned counsel for the appellant that
learned court below has given a finding that Will has not been proved,
therefore, same cannot be looked into. It is submitted that scribe,
P.W.-2 has proved the Will in question, thus finding of court below that
Will has not been proved is wholly erroneous, therefore cannot be
sustained.
3. Having heard the submission, I have gone through the
impugned judgment. From perusal of same I find that submission
raised on behalf of appellant is wholly misconceived. It is not in dispute
that will is required to be attested by two witnesses. Section 68 of the
Evidence Act lays down the procedure for proof of a document, which
required by law to be attested. Section 68 of the Evidence Act reads as
follows :-
“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”.
4. Thus in view of the aforesaid provision, if a Will (which
required under the law to be attested by witness) is not proved by
adducing evidence of attesting witness, same cannot be looked into
evidence, unless plaintiff/applicant shows that said attesting witness
are not alive and/or not capable to give evidence. In the instant case,
learned court below has given clear finding that both attesting witness
of the Will are alive. Under the said circumstance, I find that learned
court below has rightly held that Will has not been proved in
accordance with law and therefore same cannot be looked into.
5. In view of the aforesaid discussion, I find no merit in this
appeal. Same is accordingly dismissed.
(Prashant Kumar, J.)
Binit