Law on Testamentary Proceedings | Prior to proving a Will, its execution is to be proved first by an attesting witness? Del HC explains

Delhi High Court: Asha Menon, J., explained the concept of proving a Will by an attesting witness.

The chamber appeal was preferred by the appellants contesting the order passed by Joint Registrar permitting the attesting witness to be examined prior to the petitioner.

Analysis, Law and Decision

High Court concluded that the Joint Registrar rightly allowed the petitioner to examine the attesting witness prior to his own examination.

Law

Section 295 of the Indian Succession Act, 1925 provides that a contested testamentary action is to be dealt with, as nearly as may be, as a civil suit.

Adding to the above, Court expressed,

Granting that the CPC could be made applicable to the contested testamentary proceedings, as in the present case, it still leaves the court with the discretion to allow the party to be examined subsequent to the examination of his own witnesses.

 Bench emphasized that the Joint Registrar had concluded that prayer of the petitioner was allowed in view of Sections 68, 69 and 71 of the Indian Evidence Act, which provided that where a Will is sought to be proved, its execution must be proved first.

Section 68 of the Indian Evidence Act makes it necessary for the attesting witness to be examined for proving the document, namely, the Will.

Therefore, once ‘Will’ is brought on record in evidence, appellants/respondents would still retain their right to question respondent/petitioner on the validity of the execution of the same, especially in the case where suspicious circumstances exist.

In view of the above, the chamber appeal was dismissed. [Naveen Chander Kapur v. State, 2021 SCC OnLine Del 4753, decided on 22-10-2021]


Advocates before the Court:

For the Petitioner:

Mr Dhiraj Sachdeva, Advocate.

For the Respondents:

Mr Peeyoosh Kalra & Mr Sanad K. Jha, Advocates for appellants/applicants in O.A.22/2021

Join the discussion

Your email address will not be published.

This site uses Akismet to reduce spam. Learn how your comment data is processed.