The High Court · 2025
Case Details
Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-Dec-2025 13:09:46 IN THE HIGH COURT OF ORISSA AT CUTTACK C.M.P. No.584 of 2025 (In the matter of an application under Article 227 of the Constitution of India) Dandapani Sahu …. -versus- Petitioner Gavalapu Sairam and others …. Opposite Parties Advocate(s) appeared in this case:- For Petitioner
Legal Reasoning
: Mr. P.K. Nanda, Advocate For Opposite Parties : None CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 11th December 2025 B.P. Routray, J. 1. Heard Mr. P.K. Nanda, learned Advocate for the Petitioner. No- one appears for the Opposite Parties despite the notice is made sufficient on Opposite Parties 1 & 2. It needs to be stated here that Opposite Parties 1 & 2 being the Plaintiffs and the DHr are the contesting party in the cast at hand. 2. Present C.M.P. is directed against order dated 17.2.2025 of the learned Civil Judge, Berhampur passed in E.P. No.21 of 1997, wherein C.M.P. No.584 of 2025 Page 1 of 6 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-Dec-2025 13:09:46 the prayer of the 3rd party objector to examine the writer of the WILL as a witness has been refused. 3. Admittedly, the present Petitioner was not a party in the suit, i.e. T.S. No.56 of 1994, which was decreed in favour of the Plaintiffs and the suit land which was decreed in favour of the Plaintiffs was directed against Defendant No.1 to vacate the suit house and to deliver possession thereof to the Plaintiffs. During the execution proceeding, the present Petitioner filed a petition under Order 21 Rule 97 of the C.P.C. objecting his dispossession from the suit property on the ground that it was purchased by him in the year 1982 from the vendor, namely, G. Sundar Rao, who got the property by virtue of the registered WILL No.34 dated 27.06.1975. The suit property originally belonged to G.P. Simanchalam, who according to the Petitioner, executed the WILL in favour of the vendor of the Petitioner. 4. While adjudicating the claim of the Petitioner under Rule 97 of Order 21 of the C.P.C., the Petitioner wanted to examine the attesting witnesses and it is found that one of them is not available and another is dead. So, he filed a petition dated 04.02.2025 praying to examine the writer of the document (WILL) in order to prove the signature of the C.M.P. No.584 of 2025 Page 2 of 6 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-Dec-2025 13:09:46 attesting witnesses thereof. This has been rejected by the learned trial court saying that the examination of the document writer is not permissible in terms of Section 3 of the Transfer of Property Act. 5. Section 63(c) of the Indian Succession Act specifies as follows:- “(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.” 6. In the instant case, it remains undisputed that both the attesting witnesses of the WILL are not available to depose before the court. Undoubtedly, the alleged WILL relied by the Petitioner in his support is a registered Willnama and thus attached with certain statutory presumptions. In such premises, it would be relevant to refer Section 69 of the Indian Evidence Act which speaks that if no attesting witness can be found, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person. In C.M.P. No.584 of 2025 Page 3 of 6 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-Dec-2025 13:09:46 K. Laxmanan v. Thekkayil Padmini, (2009) 1 SCC 354, it has been observed that; “21. In the present case the scribe and one of the attesting witnesses to the will, namely, Vasu died before the date of examination of the witnesses. The second attesting witness, namely, Gopalan was also not in good physical condition inasmuch as neither was he able to speak nor was he able to move, the fact which is proved by the deposition of the doctor examined as DW 2. Consequently, as the execution of the will cannot be proved by leading primary evidence, the propounder i.e. the appellant herein was required to lead secondary evidence in order to discharge his onus of proving the will as held by this Court to be permissible in Daulat Ram v. Sodha [(2005) 1 SCC 40].” 7. In Ved Mitra Verma v. Dharam Deo Verma, (2014) 15 SCC 578, it is stated that, “The attesting witnesses having died, the Sub- Registrar, who had registered the will was examined as PW 3. He was examined on commission and in response to the questions posed to him, particularly, Question 2, he had set out the circumstances in which the attesting witnesses as well as the testator had signed on the document. This part of the evidence has been elaborately considered by the High Court to record its satisfaction that the execution of the will has been proved on the basis of the evidence of the Sub-Registrar i.e. PW 3. C.M.P. No.584 of 2025 Page 4 of 6 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-Dec-2025 13:09:46 Having considered the aforesaid aspect of the matter, we are of the view that the satisfaction recorded by the High Court does not suffer from any apparent infirmity or fundamental error which would require correction in the exercise of our jurisdiction under Article 136 of the Constitution of India.” 8. The requirement as per Section 63(c) of the Indian Succession Act is that the execution of the WILL shall be attested by two or more witnesses. The word ‘attestation’ has not been explained or defined in the Indian Succession Act. But as per Section 3 of the Transfer of Property Act, word ‘attested ’ is interpreted as follows:- “3. Interpretation clause.—In this Act, unless there is something repugnant in the subject or context,-- Xx .. xx .. .. “attested”, in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary” C.M.P. No.584 of 2025 Page 5 of 6 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 13-Dec-2025 13:09:46 9. In the premises stated above, when both of the attesting witnesses are not available to depose before the court in support of the attestation, it is required to lead secondary evidence in order to discharge the onus on the part of the petitioner. So the prayer of the Petitioner to examine the available writer of the WILL cannot be discarded easily saying that he is not coming within the purview of definition of ‘attestation’. Thus, in the circumstances, since the Petitioner is contesting to justify his possession over the decretal property, it would be appropriate to grant an opportunity to him to examine the witness to substantiate his contention regarding the WILL
Decision
in question. As such the impugned order is set aside. 10. The C.M.P. is allowed with a direction to the learned executing court to grant due opportunity to the Petitioner to examine the witness as prayed by him in the petition dated 04.02.2025. (B.P. Routray) Judge B.K. Barik/Secretary C.M.P. No.584 of 2025 Page 6 of 6