When the party of the suit attested the Will Deed and when not disputed his signature as attestatror - and when only disputes the bequeathing of property - the question of proof of will does not arise -2015 A.P.(2006) MSKLAWREPORTS.


another interesting feature is that the plaintiff attested the said document as one of the attesters by affixing her thumb impression. The plaintiff did not dispute the thumb impression and took a plea that even if the thumb impression is obtained on the Will, she was a minor by the date of the execution of the Will, therefore, it has no effect. But on record, it came to light that the plaintiff was a major by the date of the execution of the Will and she never disputed the attestation of the Will, though she disputed bequeathing of property in favour of the second defendant.

 The learned Counsel for the appellant submitted that though there was some discrepancy in describing the paper used for the Will, the contents have been effectively proved by examining all the attestors and son of the scribe. The said Will was executed out of love and affection towards the second defendant by the mother of the plaintiff as the second defendant's father gave them shelter and brought them up by providing food and clothing for a considerable period and another interesting feature is that the plaintiff attested the said document as one of the attesters by affixing her thumb impression. The plaintiff did not dispute the thumb impression and took a plea that even if the thumb impression is obtained on the Will, she was a minor by the date of the execution of the Will, therefore, it has no effect. But on record, it came to light that the plaintiff was a major by the date of the execution of the Will and she never disputed the attestation of the Will, though she disputed bequeathing of property in favour of the second defendant. There is also supporting material to show that the second defendant is enjoying the property since more than 20 years by the date of filing of the suit and the exhibits marked on his behalf would also reflect that he was in possession and enjoyment of the property. Had there not been any Will executed by the mother of the plaintiff, the plaintiff would have been in possession of the property as a natural heir or she would have taken, such steps immediately after the death of her mother to recover the possession of the property or to protect the property being the legal heir of the mother.



-2015 A.P.(2006) MSKLAWREPORTS

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