Take notes as you read a judgment using our Virtual Legal Assistant and get email alerts whenever a new judgment matches your query (Query Alert Service). Try out our Premium Member services -- Free for one month.\n\nJharkhand High Court\nZeenat Parveen vs Bibi Jainab on 29 June, 2022         IN THE HIGH COURT OF JHARKHAND AT RANCHI\n                                   M.A. No. 551 of 2016\n        Zeenat Parveen............                               Appellants\n                             Versus\n        1. Bibi Jainab\n        2. Md. Riyaz Khan\n        3. Sakina Khatoon............                        Respondents\n                             ......\n        Coram: Hon'ble Mr. Justice Ananda Sen\n                             ......\n        For the Appellants        : Mr. Niraj Kishore, Advocate\n        For Respondent No. 3      : Mr. Pratyush Kumar, Advocate\n                             ......\n        I.A. No. 4113 of 2022\n11/29.06.2022     By filing this interlocutory application, prayer has been made to\n        substitute Respondent No. 2 Md. Riyaz Khan, who died on 29.10.2018,\n        during pendency of this appeal. It has been submitted that he has left\n        behind his widow, three sons and one daughter namely, Jubaida Parveen,\n        Imtiyaz Khan, Ruhi Khan, Md. Mumtaz Khan and Zeenat Parveen,\n        respectively as his legal heirs.\n        2.        Learned counsel for the appellant submits that there is some\n        delay in filing this application, which needs to be condone after setting\n        aside the abatement, if any. He further submits that considering the\n        aforesaid fact, deceased Respondent No. 2, be substituted.\n        3.        Counsel appearing for Respondent No. 3 oppose the substitution\n        application.\n        4.        Considering the submission of the parties and after going through\n        the records, this interlocutory application is allowed. The delay in filing the\n        substitution petition is hereby condoned and the abatement, if any, is set\n        aside. Let the name of deceased Respondent No. 2 be struck off from the\n        cause title and in his place the name of his legal heirs be incorporated.\n        5.        Necessary correction in the cause title of the main petition is to be\n        carried out by the counsel for the appellant within two weeks from today\n        in 'red ink'.\n        6.        I.A. No. 4113 of 2022, stands disposed of.\n        M.A. No. 551 of 2016\n                  Heard learned counsel appearing for the appellant and learned\n        counsel for Respondent No. 3.\n        7.        This appeal can be disposed of at this stage itself as the lower\n        court records are already available before this Court and the parties agree\n        for the disposal of the case.\n        8.        In this appeal, the appellant has challenged the judgment dated\n        31.05.2016, passed in Probate Case No. 06 of 1998, whereby District\n                                     -2-\nJudge-III, Hazaribagh, dismissed the probate case.\n9.       Learned counsel appearing on behalf of the appellant argues that\nthe author of the Will Ismail Khan is the grandfather of the applicant. The\nentire belonging of the Ismail Khan was bequeathed to the minor\napplicant. He submits that the objector is the aunt, i.e. the daughter of\nIsmail Khan. The Will, which is exhibited as Ext.-A, is a legal and genuine\ndocument, which the court below has failed to take note of and on the\nground, which is non-existent in the eyes of law, has dismissed the\napplication.\n10.      Learned counsel appearing on behalf of Respondent No. 3\nsubmits that the execution of the Will is doubtful and the circumstances\nhave not been explained by the applicant. He submits that the fact that\nnone of the attesting witnesses of the Will was examined as witness in the\nproceeding suggests that the document, i.e. the Will was not executed\nproperly. As per him, the Will is a forged document as admittedly Ismail\nKhan died on 10.08.1982 and the purported Will was executed on\n04.10.1985.\n11.      I have heard counsel for the appellant and the respondent. This\nappeal can be disposed of on a very short question. If it is found after\nexamining the records that the provision of Section 68 of the Evidence Act\nhas not been complied with, this appeal is bound to fail. This appeal can\nbe decided on one issue as to whether the test laid down under Section 68\nof the Evidence Act is fulfilled or not? If the answer is in affirmative, than\nonly I will proceed with the other issues such as limitation in filing the\nprobate case and on the fact as to whether the testator died before the Will\nand whether the Will is forged document or not.\n12.      Counsel admits that the document, which is the Will, has been\nbrought on record as Ext.-A. There is attesting witness to the Will, who are\nGopal Prasad and Md. Wahid Ali. The aforesaid fact has also been\nnarrated in the impugned judgment itself. From the Will, I find that there\nis an endorsement on the last page by one Advocate namely, B.N.Prasad,\nmentioning therein that he had identified Md. Ismail Khan, who put his\nsignature in his presence and Jubaida Khatoon also put her signature.\nWhile I go through the entire records especially the depositions and the\njudgment, I find that none of the attesting witnesses even the said\nAdvocate B.N.Prasad has been examined in the probate case. Section 68 of\nthe Evidence Act requires that how a document, which needs attestation\nas per law, to be proved. For better appreciation, it is necessary to quote\nSection 68 of the Evidence Act, which is quoted herein below:-\n               "68. Proof of execution of document required by law to be attested-If a\n                                                        -3-\n                          document is required by law to be attested, it shall not be used as\n                          evidence until one attesting witness at least has been called for the\n                          purpose of proving its execution, if there be an attesting witness alive,\n                          and subject to the process of the Court and capable of giving evidence:\n                          [Provided that it shall not be necessary to call an attesting witness in\n                          proof of the execution of any document, not being a Will, which has been\n                          registered in accordance with the provisions of the Indian Registration\n                          Act, 1908 (16 of 1908), unless its execution by the person by whom it\n                          purports to have been executed is specifically denied.]\n           13.      Thus, from the aforesaid provision, it is quite clear that if a\n           document is required to be attested as per law, same shall not be used as\n           evidence unless at least one attesting witness has been called to prove\n           execution of the same. The attesting witness must prove the due execution\n           of the Will. It is not necessary that all the attesting witnesses should come\n           and depose at least one should depose as a witness. This is the mandate of\n           law. The Hon'ble Supreme Court in the case of "Janki Narayan Bhoir-versus-\n           Narayan Namdeo Kadam, reported in (2003) 2 SCC 91", has held that if one witness\n           fails to prove attestation of the same then other attesting witness should\n           be called to supplement the evidence of the witnesses, who have been\n           examined. If the witness failed to prove the attestation, the document, i.e.\n           the Will cannot be proved as per Section 68 of the Evidence Act.\n           14.      In the instant case, it is an admitted fact that none of the\n           attesting witness have been examined by the applicant-petitioner in\n           Probate case no. 06 of 1998. This fact is admitted by the counsel for the\n           appellant also. Since none of the attesting witness of the Will has been\n           examined, the execution of the Will has not been proved in terms of\n           Section 68 of the Evidence Act. It is also not the case of the applicant that\n           the attesting witnesses were not found.\n           15.      Thus, considering the fact that the applicant-petitioner before the\n           court below has failed to prove the execution of the Will, I find that the\n           applicant is not entitled for grant of probate in his favour. Thus, there is\n           no ground to interfere in this appeal. Since it has been held that the Will\n           was not proved in terms of the Section 68 of the Evidence Act, I am not\n           entering into the other issues.\n                    Thus, this appeal stands dismissed.\n                                                                               (Ananda Sen, J)\nMukund/-cp.2