1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. Second Appeal No. 591 of 2005 (Mohan Dinkar Gohokar Vs. Sudhakar Ganpatrao Bokare) Appeal District : Application No. of 200 Writ petition - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's Orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CORAM : Smt. Vasanti A. Naik, J. DATE : 25 th June, 2008 Heard Shri Lambat for the appellant, and Shri Khandewale for the respondent. The appellant is the original defendant. A suit was filed by the plaintiff- Sudhakar for possession of the suit property. According to him, he and his brother Chandrashekhar were the joint owners of the house property. Chandrashekhar died in the year 1976 and the property was thereafter jointly owned by plaintiff Sudhakar and widow of Chandrashekhar by name Rajani. The property was thereafter partitioned between Sudhakar and Rajani. Rajani died in the year 1988. It is the case of the plaintiff that the plaintiff has succeeded to the property which 2 had fallen to the share of Rajani as Rajani died without leaving an issue behind her. According to the plaintiff, the defendant was unauthorisedly occupying the suit property and, therefore, a decree for possession was sought by the plaintiff. The defendant denied the claim of the plaintiff and pleaded that in view of the Will executed by Rajani on1/4/1988, the defendant became the owner of the suit property i.e. the property which had fallen to the share of Rajani. According to the defendant, by the Will dated 1/4/1988, a bequest of the property was made in favour of the defendant. The defendant sought for the dismissal of the suit. Both the Courts concurrently held after considering the evidence tendered on record, that the defendant had not succeeded in proving the Will dated 1/4/1988. It was observed by both the Courts that the Will was shrouded by suspicious circumstances. The Courts also considered the fact that the defendant had failed to examine the attesting 3 witness to the Will though the scribe of the Will was examined by the defendant. The judgment passed by the trial and the appellate Courts are challenged in the instant appeal. It was submitted on behalf of the appellant by the learned counsel that the scribe of the Will was examined by the defendant and the scribe of the Will was also an attesting witness to the Will and, therefore, the Courts ought to have considered the evidence of the scribe to hold that the Will executed in favour of the defendant was valid. In view of the aforesaid submissions made on behalf of the appellant, I have perused Exh. 53, the alleged Will dated 1/4/1988. It is conspicuous to note that the Will is signed by only one attesting witness i.e. D.K. Lekha. In view of the provisions of Section 63 of the Indian Succession Act, a Will has to be attested atleast by two witnesses. This was not the case here. The Will was signed by only one attesting witness. The scribe has not signed the Will as an attesting witness, as submitted by the counsel for the appellant. 4 Thus, the Will cannot be said to be valid in view of the provisions of Section 63 of the Indian Succession Act. Even otherwise, in view of the provisions of Section 68 of the Evidence Act, atleast one attesting witness is to be examined to prove a Will. In the instant case, Shri D.K. Lekha is not examined by the defendant. Since the Will was invalid in view of the fact that it was attested by only one witness, it was not necessary for the Court to consider the validity of the Will on other aspects. However, the Courts have recorded a categorical finding of fact that the Will was shrouded by suspicious circumstances and was not valid for that reason also. Since no substantial question of law arise for consideration in this second appeal, same is dismissed with no order as to costs. JUDGE RMP