LAW FOR ALL

sec. 71 of Evidence Act r/w Order XVI Rules 7 and 21 and Section 151 CPC = It is the case of the plaintiff that as defendants 1 and 2 who are her sisters are aware of the execution of the Will, she wants to examine them on her behalf. Hence, she prayed to issue summons to them to examine on her behalf.- whether the Court was right in allowing the application filed under Order XVI Rules 7 and 21 and under Section 151 of CPC.- Section 71 of the Indian Evidence Act provides that if the attesting witness denies or does not recollect the execution of the document, his evidence may be proved by other evidence. Section 71 will come into play when the attesting witness who has been called failed to prove the execution of the Will or turned hostile. Section 71 is a permissive and enabling provision and is in the nature of safeguard to the mandatory provision of Section 68 of the Evidence Act. Coming to the facts of the case on hand, when the plaintiff could not examine the second attestor to the Will, she has no other option but to file an application under Section 71 of the Indian Evidence Act and prove the Will by way of other evidence. I am of the considered opinion that the order passed by the learned Judge is a well considered one and does not warrant any interference from this Court.