Rachel 29 October 2021

Property inheritance- sec 68 of the evidence act

Hello,

I filed a partition suit to which my brothers produced fraudulent witness as evidence. They filed affidavit with 3 witness listed and only one witness appeared, the other witnesses did not appear in court. They asked the court to summons the other witnesses and court declined their request. If only one witness appeared, based on Sec 68 of the evidence act would that make court consider this as authentic will or the other witnesses not appearing will be considered as this will not being genuine. If they want to continue the case further can we request the forensic examination of the will, if so who chooses the forensic expert to verify the document? or will the court have the sole right to choose the forensic expert?

Thank you

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5 Replies

Dr J C Vashista (Advocate) 29 October 2021

Based on deposition of one of the two witnesses the court shall accept proper execution of the Will in terms of Section 68 of the Indian Evidence Act, 1872.

Forensic advise is "non-conculsive" evidence.

Rachel 29 October 2021

Will the court accept the will even if it was in a white paper and produced by my brother after 4 years of filing the partition suit? In that case can we ask the court to summons the other two witnesses to examine them? What recourse do we have?

G.L.N. Prasad (Retired employee.) 29 October 2021

One has to win his case on his own strengths and not on the weakness of the other party. When you have engaged an advocate, trust him and his guidance. Have you issued proper notice to the other co-sharers that are in possession and occupation of the will on the basis of the will? Have they started a will in their favor? Have you got the copy of the will and sent it to any handwriting experts and sought opinion (Like truth labs in Hyderabad), on what basis you have jumped into the fray-seeking partition?