Ramesh Kumar Agarwal vs Estate Of Chitralekha Sen
2023 Latest Caselaw 1735 Jhar

          IN THE HIGH COURT OF JHARKHAND AT RANCHI
                        (Civil Miscellaneous Appellate Jurisdiction)
                                M.A. No. 233 of 2018
                                        ......

      Ramesh Kumar Agarwal                                          ...... Appellant
                                  Versus
      Estate of Chitralekha Sen                                   . .......Respondent
                                        .....

      CORAM:        HON'BLE MR. JUSTICE KAILASH PRASAD DEO
                                   ......
      For the Appellant                 : Mr. Sandeep Verma, Advocate
      For the Respondent                :
                             -----

The matter is being taken up through Video Conferencing. Learned counsel for the appellant has no objection with it and submitted that audio and video qualities are good.

05/ Dated: 25/04/2023

Heard, learned counsel, Mr. Sandeep Verma on instruction of learned counsel for the appellant, Mr. Kundan Kumar Ambastha.

The appellant- Ramesh Kumar Agarwal has preferred this Miscellaneous Appeal against the award/ judgment dated 17.01.2018, passed by learned District Judge-XII, Hazaribagh in Probate Case No.1 of 2010, whereby the probate with respect to will dated 29.01.2003 has been rejected on the ground that the attesting witness as required under Section 63(c) of the Indian Succession Act, 1925, has not been examined nor the document, which has been brought on record, are registered document, the document has not been proved in view of Sections 68 and 69 of the Indian Evidence Act, 1872, as such, the appeal has been preferred before this Court.

Section 63(c) of the Indian Succession Act, 1925, reads as follows:

"(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has been some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."

Sections 68 and 69 of the Indian Evidence Act, 1872, reads as follows:

"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.]

69. Proof where no attesting witness found.--If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person."

From perusal of the impugned award/ judgment, it appears that a will has been executed by Chitralekha Sen with respect to her land situated in Village- Nura, P.S. Sadar, District- Hazaribagh Khasmahal Holding No.95, Plot No.681 measuring an area 0.30 acres. Chitralekha Sen also left behind her son, namely, Jaydev Sen Gupta and daughter, Jayanti Mitra, who are residing at Kolkata, but they have also not been impleaded as a party. It also appears that the Khasmahal land is a land of the State of the Jharkhand, for which, the State is also a necessary party.

Considering the same as well as reason assigned by the learned court below there is no illegality or irregularity in the impugned award/ judgment, accordingly, no interference is required and no succession certificate can be granted with respect to such property on the basis of such document which itself has not seen the light of the sun.

Accordingly, the instant Miscellaneous Appeal is dismissed.

(Kailash Prasad Deo, J.) R.S./