Civil Procedure Code, 1908, Section 47, 151 -- House - Partition - Final decree - 2/3rd share given to D.H. and 1/3rd share to first J.D. as per report of Commissioner - In execution proceedings J.D. raising objection that decree is inexecutable as suit property is incapable of partition and separate possession - Held, application of J.D. cannot be dismissed on the ground..........
Will -- Execution - Scribed on an ordinary paper - Scribe a labourer - Will did not contain Khasra numbers - Contradictions in the statement of witnesses - Held, due execution of Will as well as its attestation is not proved...........
Civil Procedure Code, 1908, Order 21, Rule 2 -- Execution - J.D. contending that there was a compromise between parties and that a certain sum was paid in full satisfaction of all decrees in different suits in different Courts obtained by D.H. and that therefore the decree in question is fully satisfied - Executing Court rejecting such contention - Held, not illegal - All..........
Will -- Validity of - Thumb-impression of testator on Will not clear being ink-smudged - Scribe of Will a labourer by profession working with propounder of Will, discrepancies in statement of scribe on material and substantial aspects cannot be ignored as being minor and of trifling nature, contradictions in his statement clearly show that he was not a reliable witness -..........
Will -- Execution - Proof - Contents not read over to executant or witnesses - Witness not able to say as to on whose instructions will was executed - Notary, another witness, stating that he was doing work of notary and executant and witnesses signed before him - Nothing in his statement that witnesses signed before executant and executant signed before witnesses - He..........
Will -- Execution - Proof - Attesting witness not deposing that executant signed Will before him or that witnesses signed before executant - Scribe also not deposing as to signing by executant before witnesses or witnesses signing before executant - Held, execution of Will is not proved...........
Evidence Act, 1872, Section 45 -- Handwriting expert - Opinion - Being an experiential opinion, it must always be received with great caution - To act upon, it must be corroborated either by clear direct evidence or by clinching substantial evidence - When the execution of a disputed document is witnessed by independent witnesses, it is not necessary to rely on the opinion..........
Civil Procedure Code, 1908, Order 6, Rule 17 -- Written statement - Amendment - Suit for specific performance - Amendment sought at the final stage of suit - By amendment petitioner sought to specifically deny the execution of agreement to sell - In normal course this alternative plea would have been allowed but as in the instant case it is sought after 10 years of..........
Will -- Execution - Proof - Nothing in statement of witnesses showing that both attesting witnesses had signed in presence of executant - Also, nothing in his statement showing that executant signed document before witnesses - Essential ingredient of proof of attestation is missing...........
Will -- Suspicious circumstances - In application for mutation no mention made of execution of Will - So also, in application for succession certificate in favour of beneficiary, there is no mention of execution of Will - It can be inferred that alleged Will was in existence but was not genuine document - Further, being heir under Will, beneficiary should have applied..........
