It is the case of the plaintiff that as defendants 1 and 2 who are her sisters are aware of the execution of the Will, she wants to examine them on her behalf. Hence, she prayed to issue summons to them to examine on her behalf.- whether the Court was right in allowing the application filed under Order XVI Rules 7 and 21 and under Section 151 of CPC.- Section 71 of the Indian Evidence Act provides that if the attesting witness denies or does not recollect the execution of the document, his evidence may be proved by other evidence. Section 71 will come into play when the attesting witness who has been called failed to prove the execution of the Will or turned hostile. Section 71 is a permissive and enabling provision and is in the nature of safeguard to the mandatory provision of Section 68 of the Evidence Act. Coming to the facts of the case on hand, when the plaintiff could not examine the second attestor to the Will, she has no other option but to file an application under Section 71 of the Indian Evidence Act and prove the Will by way of other evidence. I am of the considered opinion that the order passed by the learned Judge is a well considered one and does not warrant any interference from this Court.



                        THE HON'BLE SRI JUSTICE N.V. RAMANA

                         

                        CIVIL REVISION PETITION No. 539 OF 2013

                         

                        Dated:  8-03-2013

                         

Between:

Lakkamraju Subba Lakshmi
... PETITIONER
              AND

                         

Valivarthi Rama Devi
... RESPONDENT

                         

                         

                         

 




























                         

                        THE HON'BLE SRI JUSTICE N.V. RAMANA

                         

                        CIVIL REVISION PETITION No. 539 OF 2013

                         

ORDER:

                         


The present revision is filed aggrieved by the order passed by the learned Principal Senior Civil Judge, Vijayawada in I.A No. 2311 of 2012 in O.S No. 1425 of 2009, wherein the learned Judge has allowed the petition filed by the plaintiff under Order XVI Rules 7 and 21 and Section 151 CPC by an order dated
18-10-2012.

The petitioner is the 3rd defendant in the suit. The respondent who is the plaintiff filed the suit for a declaration that she is the absolute owner of the plaint schedule property basing on the Will dated 09-06-1987 executed in her favour by her father, and after the death of her mother on 29-10-2008.  
The revision petitioner who is defendant in the suit is none other than the elder sister of the plaintiff.  
The other two sisters defendants 1 and 2 remained ex parte.  
According to the respondent - plaintiff, the revision petitioner has obtained the gift deed fraudulently from the mother though she is very much aware of the Will dated 09-06-1987.  
It is the case of the plaintiff that as defendants 1 and 2 who are her sisters are aware of the execution of the Will, she wants to examine them on her behalf.  Hence, she prayed to issue summons to them to examine on her behalf.
It is the case of the revision petitioner – 3rd defendant that duty is cast upon the plaintiff to prove the execution of the Will by examining the witnesses.  As the plaintiff could not elicit anything by examining PWs 1 and 2, she came up with the present application.  It is her further case that though other attesting witnesses are available, the plaintiff did not examine them intentionally. Examining the other witnesses is contrary to Section 71 of the Indian Evidence Act.  The 3rd defendant filed O.S No. 914 of 2011 on the file of the Additional Senior Civil Judge, Vijayawada and in that suit, the other two sisters along with the plaintiff are the defendants and all the three are represented by the same advocate who is appearing on behalf of the plaintiff in the suit and, hence, sought for dismissal of the application.
The learned Judge after hearing both the parties has allowed the application by an order dated 18-10-2012 holding that as the 2nd witness did not turn up for the cross examination and the chief examination is eschewed, there is no other alternative to the plaintiff to prove the Will, except to take shelter under Section 71 of the Evidence Act.
Assailing the said order, the revision petitioner who is the 3rd defendant in the suit approached this Court.
Now the issue that falls for consideration before this Court is whether the Court was right in allowing the application filed under Order XVI Rules 7 and 21 and under Section 151 of CPC.
It is the specific case of the plaintiff that she has examined herself as PW 1 and one of the attestors as PW 2 and the second attestor was cited as PW 3, his chief examination affidavit is filed.  PW 3 could not be cross examined as in spite of the repeated requests by the plaintiff he did not turn up and accordingly on the memo filed by the plaintiff the evidence of PW 3 is eschewed.  The burden is on the plaintiff to prove the execution of Will. 
The burden of proof of a Will, law is well settled, that the mode of proving Will does not differ from that of proving any other document except for the requirement under Section 63 of the Indian Succession Act and Section 68 of the  Indian Evidence Act.
Section 68 of the Evidence Act lays down the mode and manner in which execution of a Will is to be proved.  Section 63 of the Indian Succession Act postulates the mode and manner in which proof and execution of a document required by law is to be attested. In unequivocal terms, Section 68 prescribes that the execution of the Will must be proved at least by one attesting witness.
Section 71 of the Indian Evidence Act provides that if the attesting witness denies or does not recollect the execution of the document, his evidence may be proved by other evidence.  Section 71 will come into play when the attesting witness who has been called failed to prove the execution of the Will or turned hostile.  Section 71 is a permissive and enabling provision and is in the nature of safeguard to the mandatory provision of Section 68 of the Evidence Act.
Coming to the facts of the case on hand, when the plaintiff could not examine the second attestor to the Will, she has no other option but to file an application under Section 71 of the Indian Evidence Act and prove the Will by way of other evidence.
I am of the considered opinion that the order passed by the learned Judge is a well considered one and does not warrant any interference from this Court.
Accordingly, the civil revision petition is dismissed.


               N.V. RAMANA, J

8th March, 2013
ks

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