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KAMINI KAUSHAL SAXENA v SHIV SAHAY JOHARI - CSA Case No. 184 of 2004 [2007] RD-RJ 1413 (19 March 2007)

S.B.Civil Second Appeal No.184/2004.

Kumari Kamini Kaushal Saxena. vs.

Shiv Sahay Johari.

Date : 19.3.2007


Mr. SD Vyas, for the appellant.

Mr. S Sharma, for the respondent.


Heard learned counsel for the parties.

The appellant/defendant is aggrieved against the judgments and decrees of the courts below dated 16.2.2003 and 26.2.2004.

The trial court decreed the suit of the plaintiff for possession of the suit property and awarded mesne profits Rs.100/- per month in favour of the plaintiff against the defendant.

The plaintiff filed suit for possession on the strength of will dated 16.8.1993 executed by his maternal grand mother Vidhyawati in favour of the plaintiff.

The defendant's case was that she is in occupation of the suit property because she is also maternal grand daughter of Vidhyawati Devi and from the time of

Vidhyawati Devi, the defendant's mother was residing in one room and thereafter, the defendant started living.

Learned counsel for the appellant vehemently submitted that the will dated 16.8.1993 has not been attested by competent witness and, therefore, it is of no effect. According to learned counsel for the appellant, the Advocate, who drafted the will himself, signed as witness in the will and the advocate cannot become attesting witness for the will.

I considered the submissions of learned counsel for the appellant and perused the reasons given by the two courts below as well as the record.

The plaintiff proved the will dated 16.8.1993 by cogent evidence and it is not law that an Advocate who drafted the will cannot become the attesting witness.

In view of the above, I do not find any substantial question of law involved in this appeal.

Consequently, this second appeal, having no merit, is hereby dismissed.




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