Jharkhand High Court
Zeenat Parveen vs Bibi Jainab on 29 June, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 551 of 2016
Zeenat Parveen............ Appellants
Versus
1. Bibi Jainab
2. Md. Riyaz Khan
3. Sakina Khatoon............ Respondents
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Coram: Hon'ble Mr. Justice Ananda Sen
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For the Appellants : Mr. Niraj Kishore, Advocate
For Respondent No. 3 : Mr. Pratyush Kumar, Advocate
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I.A. No. 4113 of 2022
11/29.06.2022 By filing this interlocutory application, prayer has been made to
substitute Respondent No. 2 Md. Riyaz Khan, who died on 29.10.2018,
during pendency of this appeal. It has been submitted that he has left
behind his widow, three sons and one daughter namely, Jubaida Parveen,
Imtiyaz Khan, Ruhi Khan, Md. Mumtaz Khan and Zeenat Parveen,
respectively as his legal heirs.
2. Learned counsel for the appellant submits that there is some
delay in filing this application, which needs to be condone after setting
aside the abatement, if any. He further submits that considering the
aforesaid fact, deceased Respondent No. 2, be substituted.
3. Counsel appearing for Respondent No. 3 oppose the substitution
application.
4. Considering the submission of the parties and after going through
the records, this interlocutory application is allowed. The delay in filing the
substitution petition is hereby condoned and the abatement, if any, is set
aside. Let the name of deceased Respondent No. 2 be struck off from the
cause title and in his place the name of his legal heirs be incorporated.
5. Necessary correction in the cause title of the main petition is to be
carried out by the counsel for the appellant within two weeks from today
in 'red ink'.
6. I.A. No. 4113 of 2022, stands disposed of.
M.A. No. 551 of 2016
Heard learned counsel appearing for the appellant and learned
counsel for Respondent No. 3.
7. This appeal can be disposed of at this stage itself as the lower
court records are already available before this Court and the parties agree
for the disposal of the case.
8. In this appeal, the appellant has challenged the judgment dated
31.05.2016, passed in Probate Case No. 06 of 1998, whereby District
Judge-III, Hazaribagh, dismissed the probate case.
9. Learned counsel appearing on behalf of the appellant argues that
the author of the Will Ismail Khan is the grandfather of the applicant. The
entire belonging of the Ismail Khan was bequeathed to the minor
applicant. He submits that the objector is the aunt, i.e. the daughter of
Ismail Khan. The Will, which is exhibited as Ext.-A, is a legal and genuine
document, which the court below has failed to take note of and on the
ground, which is non-existent in the eyes of law, has dismissed the
application.
10. Learned counsel appearing on behalf of Respondent No. 3
submits that the execution of the Will is doubtful and the circumstances
have not been explained by the applicant. He submits that the fact that
none of the attesting witnesses of the Will was examined as witness in the
proceeding suggests that the document, i.e. the Will was not executed
properly. As per him, the Will is a forged document as admittedly Ismail
Khan died on 10.08.1982 and the purported Will was executed on
04.10.1985.
11. I have heard counsel for the appellant and the respondent. This
appeal can be disposed of on a very short question. If it is found after
examining the records that the provision of Section 68 of the Evidence Act
has not been complied with, this appeal is bound to fail. This appeal can
be decided on one issue as to whether the test laid down under Section 68
of the Evidence Act is fulfilled or not? If the answer is in affirmative, than
only I will proceed with the other issues such as limitation in filing the
probate case and on the fact as to whether the testator died before the Will
and whether the Will is forged document or not.
12. Counsel admits that the document, which is the Will, has been
brought on record as Ext.-A. There is attesting witness to the Will, who are
Gopal Prasad and Md. Wahid Ali. The aforesaid fact has also been
narrated in the impugned judgment itself. From the Will, I find that there
is an endorsement on the last page by one Advocate namely, B.N.Prasad,
mentioning therein that he had identified Md. Ismail Khan, who put his
signature in his presence and Jubaida Khatoon also put her signature.
While I go through the entire records especially the depositions and the
judgment, I find that none of the attesting witnesses even the said
Advocate B.N.Prasad has been examined in the probate case. Section 68 of
the Evidence Act requires that how a document, which needs attestation
as per law, to be proved. For better appreciation, it is necessary to quote
Section 68 of the Evidence Act, which is quoted herein below:-
"68. 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:
[Provided that it shall not be necessary to call an attesting witness in
proof of the execution of any document, not being a Will, which has been
registered in accordance with the provisions of the Indian Registration
Act, 1908 (16 of 1908), unless its execution by the person by whom it
purports to have been executed is specifically denied.]
13. Thus, from the aforesaid provision, it is quite clear that if a
document is required to be attested as per law, same shall not be used as
evidence unless at least one attesting witness has been called to prove
execution of the same. The attesting witness must prove the due execution
of the Will. It is not necessary that all the attesting witnesses should come
and depose at least one should depose as a witness. This is the mandate of
law. The Hon'ble Supreme Court in the case of "Janki Narayan Bhoir-versus-
Narayan Namdeo Kadam, reported in (2003) 2 SCC 91", has held that if one witness
fails to prove attestation of the same then other attesting witness should
be called to supplement the evidence of the witnesses, who have been
examined. If the witness failed to prove the attestation, the document, i.e.
the Will cannot be proved as per Section 68 of the Evidence Act.
14. In the instant case, it is an admitted fact that none of the
attesting witness have been examined by the applicant-petitioner in
Probate case no. 06 of 1998. This fact is admitted by the counsel for the
appellant also. Since none of the attesting witness of the Will has been
examined, the execution of the Will has not been proved in terms of
Section 68 of the Evidence Act. It is also not the case of the applicant that
the attesting witnesses were not found.
15. Thus, considering the fact that the applicant-petitioner before the
court below has failed to prove the execution of the Will, I find that the
applicant is not entitled for grant of probate in his favour. Thus, there is
no ground to interfere in this appeal. Since it has been held that the Will
was not proved in terms of the Section 68 of the Evidence Act, I am not
entering into the other issues.
Thus, this appeal stands dismissed.
(Ananda Sen, J)
Mukund/-cp.2
