Will -- Pleading - When a document is required by law to be attested then party relying upon the said document is required to plead specifically both the execution and attestation of it - In case of a Will it must be pleaded that Will was properly executed and duly attested and was the last Will of the testator - It is not enough to aver in the petition that Will was duly..........
Will -- Attestation - Suspicious circumstance - Plaintiffs affidavit silent of having attested will - Undated, unsigned and unaffirmed affidavit of persons purporting to be that of attesting witnesses filed to comply with the requirement of Rule 374 of Original Side Rules - This by in itself is a suspicious circumstance...........
Will -- Attestation - Will is required to be attested by two witnesses but it can be proved by examining one of the attesting witnesses...........
Succession Act, 1925, Section 63 -- Person propounding Will - Must prove that Will duly and validly executed - Cannot be done by simply proving that signature on Will that of testator - Must also prove that attestations made properly as required by clause (c) of Section 63 - Section 68 Evidence Act gives a concession that at least one attesting witness has to be called for..........
Succession Act, 1925, Section 63(c) -- Due execution of Will - Attestation of Will by two or more witnesses - Mandatory...........
Succession Act, 1925, Section 63 -- Where attesting witness called to prove execution not in a position to prove attestation of Will by second witness - Evidence of witness called falls short of mandatory requirements of Section 68 Evidence Act - Section 71 Evidence Act has no application when one attesting witness, who alone has been summoned, has failed to prove..........
Will -- Suspicious circumstances - Statement of witnesses at variance - Scribe not able to withstand cross examination - Facts stated in examination-in-chief not duly corroborated - Will written by scribe at the instance of beneficiaries - Will was never read over before attestation - Will not signed/thumb marked by testator before the attesting witnesses - Held, Will not..........
Will -- Execution - Proof - Lies on the propounder of the Will - Court's conscience must be satisfied that it is the last Will of a free and capable testator i.e. testator was in a sound and disposing sate of mind and memory - Onus is discharged if propounder leads evidence to show that the Will bears the signature and mark of the testator and that the Will is duly..........
Will -- Scribe - Whether can be an attesting witness? - Presence of scribe and his signature appearing on the document does not by itself be taken to the proof of due attestation unless the situation is so expressed in the document itself...........
Words and Phrases -- 'Gawahi' - Means attestation...........
