- (1.) THIS Miscellaneous Appeal is directed against the judgment dated 19-6-2007 passed by District Judge, Bokaro in Letter of Administration Case No. 01 of 2001, whereby and whereunder application for grant of letter of administration has been dismissed with cost.
(2.) IT is submitted by learned counsel for the appellant that learned Court below has given a finding that Will has not been proved, therefore, same cannot be looked into. IT is submitted that scribe, P. W.-2 has proved the Will in question, thus finding of Court below that Will has not been proved is wholly erroneous, therefore cannot be sustained. Having heard the submission, I have gone through the impugned judgment. From perusal of same, I find that submission raised on behalf of appellant is wholly misconceived. It is not in dispute that Will is required to be attested by two witnesses. Section 68 of the Evidence Act lays down the procedure for proof of a document, which required by law to be attested. Section 68 of the Evidence Act reads as follows :- "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". Thus in view of the aforesaid provision, if a Will (which required under the law to be attested by witness) is not proved by adducing evidence of attesting witness, same cannot be looked into evidence, unless plaintiff/applicant shows that said attesting witness are not alive and/or not capable to give evidence. In the instant case, learned Court below has given clear finding that both attesting witness of the Will are alive. Under the said circumstance, I find that learned Court below has rightly held that Will has not been proved in accordance with law and therefore same cannot be looked into.
(3.) IN view of the aforesaid discussion, I find no merit in this appeal. Same is accordingly dismissed. Appeal dismissed.;