JUDGEMENT
Shivaraj V. Patil, J. -
(1.)This appeal by special leave is by the defendant questioning the validity and correctness of the impugned judgment and decree passed by the High Court in the second appeal. The respondent herein filed the suit for possession of the suit properties comprised of agricultural land and a house as owner under the Will said to have been executed by Honaji Dama Kadam. The trial Court, accepting the Will on the basis of evidence placed on record, decreed the suit. The District Judge in the Regular First Appeal set aside the decree passed by the trial Court. The High Court in the second appeal by the impugned judgment and decree set aside the judgment of the first appellate Court and restored the judgment and decree passed by the trial Court.
(2.)The contentions urged by the learned counsel for the appellant were that the Will in question was not proved as required by law, having regard to Section 63 of the Indian Succession Act read with Section 68 of the Indian Evidence Act, 1872 the attestation of Will by two witnesses was not established; the High Court committed an error in treating the scribe as an attesting witness when he did not sign as animo attestendi. The evidence of the one attesting witness examined does not establish the attestation of the Will by another attesting witness; the other attesting witness though available, was not examined; the High Court committed a serious error in setting aside the judgment of the first appellate Court which was based on proper appreciation of evidence in the absence of any substantial question of law that arose for consideration.
(3.)On the other hand, the learned counsel for respondent urged that although Section 63 of the Succession Act requires attestation of a Will at least by two witnesses but the Will could be proved by examining one attesting witness as per Section 68 of the Evidence Act and by leading other evidence as per Section 71 of the Evidence Act. He fairly conceded that the scribe was not and could not be treated as an attesting witness in this case.
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