Will deed notarised

The will has to be proved as per section 68 of the Evidence Act. According to the said Section, a document required by law to be attested 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 an evidence.

Where one attesting witness examined to prove the will under Section 68 of the Evidence Act fails to prove the due execution of the will then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the will by the other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act.

In a case where the attesting witness is either dead or out of the jurisdiction of the court or kept out of the way by the adverse party or cannot be traced despite diligent search. Only in that event, the Will may be proved in the manner indicated in Section 69, i.e., by examining witnesses who were able to prove the handwriting of the testator or executant. The burden of proof then may be shifted to others.

Section 71 of the Evidence Act is in the nature of a safeguard to the mandatory provisions of Section 68, Evidence Act, to meet a situation where it is not possible to prove the execution of the will by calling attesting witnesses, though alive. This Section provides that if an attesting witness denies or does not recollect the execution of the will, its execution may be proved by other evidence.

Dear Mr. Sts abd,

1.  You can file a special leave civil application before the H.C. seeking a lawful interpretation of s. 69 of the Indian Evidence Act, 1872   in that  posing a question in law as ' Whether or not - an Public Notary who has given/gives his deposition before a trail court during the proceedings in matter of probate of a Will of having himself prepared a Will document under the instructions of the testator and whose signature has been attested  by such Public Notary can deemed to satisfy the legal contentions  subscribed u/s 69 of the Indian Evidence Act, 1872   ?

2. The H.C. would be impelled to answer this question in law and from my point of view the assertion of such question in law would be positive and would be in your favor and  later such decision of the H.C. can be conveyed to the trial court for to have it entered as a fact in law  and admitted as an evidence in the  case matter  and finally dispose the case.

3. If need be talk to this lawyer with an understanding for payment of post paid phone consultation charges to this lawyer.

Adv. Rohit Sharma.

(B.Sc. L.L.B. L.L.M.)

(M) : 09824047971.

E-Mail : lawgate1349@gmail.com

.

Dear sir ,

notary has given evidence before court .one witness not found & another witness is 60 yrs old just has frcture in leg to   toe so steel rod implanted  in his legs . so he is unable to come to court but he is asking for court commisioner .

as case is 15 yrs old so judge is in hurry to order the case so he has rejected our x ray & ,medical pepers & kept special date in summer vacation for final argument .

now i want to know any case  or law where will deed can be proved where only notery is witness.

plz help 

Necessarily, you have to examine the attesting witness in order to prove the will. If the commission application has been turned down by the trial Court, approach the appeal Court for appointment of Commissioner to examine the said attesting witness at his place.

I am not able to Understand how this much time have been taken by the court to Prove a Will? Probation of the will is necessary in case any right out of it has to be claimed or executed. I fund Ms Kabeer rightly has quoted the provisions of the Evidence Act as Under in the position where the attesting witnesses are not possiblelly available to assertain their evidence:

"Where one attesting witness examined to prove the will under Section 68 of the Evidence Act fails to prove the due execution of the will then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the will by the other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act.

In a case where the attesting witness is either dead or out of the jurisdiction of the court or kept out of the way by the adverse party or cannot be traced despite diligent search. Only in that event, the Will may be proved in the manner indicated in Section 69, i.e., by examining witnesses who were able to prove the handwriting of the testator or executant. The burden of proof then may be shifted to others.

Section 71 of the Evidence Act is in the nature of a safeguard to the mandatory provisions of Section 68, Evidence Act, to meet a situation where it is not possible to prove the execution of the will by calling attesting witnesses, though alive. This Section provides that if an attesting witness denies or does not recollect the execution of the will, its execution may be proved by other evidence."

i agree with Mr. Anand Bali Advocate.

9869617090

The replies given by  Ms.Lawyer Saleema Kabeer and  Mr. Rohit Sharma  are very useful.

Mr.Anand Bali reproduced the reply of Lawyer Saleema kabeer.

Thanks for all the detailed replies.