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Evidently, the burden is on the propounder of the Will to prove the execution of the same. A Will is a compulsorily attestable document and it has to be proved that the executant of the Will was conscious and aware of the contents of the same. In this case evidently, the relationship of the plaintiffs with Kaneez Fiza was not accepted by the Courts. The original of the Will was not produced before the Court. Ex.A.4 is only certified copy of the Will and the reasons for not summoning or producing the original Will is not forthcoming. No permission was taken to dispense with the production of the original. If the original was marked in the earlier suit O.S.No.445 of 1974, it could have been easily filed when certified copy was obtained. The scribe of the Will was not examined. PW.2 is said to be aged about 55 years and a resident of Parbhani and he claims that Kaneez Fiza executed the Will. His evidence does not show that the contents of the Will were dictated by the testator and the reason for execution of the Will and that he signed along with the other attesters to the witnessing of the testator. He studied only up to 5th class and he does not know even the name of the husband of the Kaneez Fiza and he has not given evidence with regard to the Will earlier. So also the evidence of PW.4, who is said to be an Advocate and attester of the Will, is also not sufficient to establish the Will. He is not even able to give the name of the testator and he claims that it was referred in Ex.A.4. He does not even say that the contents of the Will were declared by the testator and that it was drafted in his presence and that he has signed to the witnessing of the testator. He does not even know the family particulars of Mohd. Thaqui and he claims to be accidentally present when he went to the Registrar’s Office and therefore, he attested Ex.A.4, except that he has no prior information. The evidence of PW.4 appears to be artificial. He was not even able to testify the soundness of the mind of the testator at the time of execution of the Will. If such is the evidence, the lower Court heard in holding that the evidence of PWs.2 and 4 establishes the execution of the Will. Therefore, it is quite clear that there is no proper proof even in the present suit about the execution of the Will and the legal requirement of soundness of mind and free Will of the testator and the declaration of the intention to Will away the property by the testator were not spoken either by PW.2 or PW.4. They are also not specific about the testators signing to their witnessing and they attesting the Will to the witnessing of the testator. =The test of res judicata is the identity of title in the two litigations and not the identity of the actual property involved in the two cases but the previous decision must be one on a title in respect of which a dispute has been raised and which dispute was heard and finally decided by the Court. Once the decision on question of title becomes final it operates as res judicata even if the value of the subject matter on which the former decision was pronounced was comparatively very trifling. When the decision was given by trial Court after contest it operates as res judicata even if appeal therefrom might have been dismissed on some preliminary grounds like limitation”

THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CCC APPEAL No.225 OF 2001 and bt 09-06-2011 Smt.Askari Begum and others Md.Ayaz Khan and others Counsicl of Petitioner:— Counsil for Respondent:– :JUDGMENT: Both the appeals arise out of common property, which is a house property bearing No.22-3-908 situated at Vazir Ali lane, Darulshifa, Hyderabad, in an extent of … Continue reading

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