Manish Kukreja v. Shanta Rani

1. Petitioner is defending a suit which seeks possession, recovery of damages/mesne profit and permanent injunction.

2. The case is at the stage of plaintiff’s evidence and plaintiff has already examined 09 witnesses.

3. The defendant (petitioner herein) is aggrieved by order dated 11.06.2025, whereby learned Trial Court has permitted the plaintiff to summon one Mr. Shakeel Ahmed Khan in context of Will dated 06.03.2012.

4. Admittedly, as per the averments appearing in the suit, the Will in question is a registered Will and was executed in presence of two attesting witnesses.

5. Unfortunately, both such attesting witnesses expired, before they could enter into witness box. CM(M) 1365/2025 2

6. It was in the abovesaid peculiar backdrop that the plaintiff moved an application to summon one Mr. Shakeel Ahmed Khan. It was mentioned in the application that said Mr. Shakeel Ahmed Khan was present at the time of execution of Will, when it was signed by the testator and the two attesting witnesses.

7. The application was opposed for the reason that there was no whisper about the name of said person when the suit was filed and the abovesaid person has been introduced at a belated stage just to fill-up the lacunae and the vacuum which stood created on account of death of both the attesting witnesses. It was also argued that the Section 69 of Indian Evidence Act (corresponding Section 68 of Bharatiya Sakshya Adhiniyam, 2023) could not have been invoked in the manner it has been done. Learned counsel for petitioner has drawn attention of this Court towards the registered Will and submits that nowhere, in the abovesaid Will, the name of said witness is appearing and he did not even sign the abovesaid Will in any capacity whatsoever.

8. Heard.

9. As already noticed, two attesting witnesses of the Will are no longer alive and wherever no such attesting witness is available, Section 69 of Indian Evidence Act comes into play which reads as follows:

CM(M) 1365/2025 3

10. Of course, as per requirement of law, Will can be proved only through the evidence of, at least, one of the attesting witnesses and since both the attesting witnesses have already expired, plaintiff moved abovesaid application seeking to prove attestation by calling said Mr. Shakeel Ahmed Khan.

11. In case, such said Mr. Shakeel Ahmed Khan is familiar with the signature of either of attesting witnesses, his testimony may have some relevance under Section 69 of Indian Evidence Act.

12. Petitioner relies upon Moturu Nalini Kanth v. Gainedi Kaliprasad (Dead, Through Lrs.), 2023 SCC OnLine SC 1488. Undoubtedly, as per Moturu Nalini Kanth (supra), a random witness cannot be called on the basis of mere assertion that he saw attesting witness affixing his signature on the Will but fact remains that the examination cannot be denied, merely, on the basis of contents of application. His eventual examination, before the learned trial Court, would only indicate whether he is merely a random witness or for that matter his testimony has any relevancy in context of Section 69 of Indian Evidence Act.

13. Thus, the things would become clearer only when such witness enters into witness box and makes a deposition.