What is the effect of the propounder of a Will failing to enter the witness box, and of the scribe and attesting witnesses not being examined?

The initial burden of proving an unregistered Will is on the propounder. Where the propounder does not enter the witness box to depose in support of his case and subject himself to cross examination, an adverse presumption has to be drawn; and where the attestors are close relatives of both parties, the scribe is not examined, and material facts are withheld both from the Will and from the plaint, the Will is shrouded by suspicious circumstances which remain uncleared and the Will is not proved. The testator is then deemed to have died intestate, and his legal heirs become necessary parties to the suit.

Power of attorney — general power deed executed by more than one principal — Limitation Act, 1963 — Article 134 — Code of Civil Procedure, 1908 — pleadings and evidence — Hindu joint family — alienation of an undivided coparcenary share — Proof of Will — suspicious circumstances — Power of attorney — several executants — death of one does not terminate the deed — Held: Where a power of attorney is executed by multiple persons, the death of any one of them, or of a few of them, does not automatically cancel the power deed so long as the other executants are alive. Sale deeds executed by the power agent while the power deed was in force, and prior to its cancellation, are therefore valid in the eye of law, until coercion or violation of the contents of the power deed is established. (¶21, 23) Hindu joint family — coparcener — alienation of undivided share before partition — Held further: There is no bar to the alienation of the undivided share of a coparcener prior to partition, and the alienee has valid title over the share sold to him. According to the law of equity, a person who purchases an undivided share before partition is entitled to seek allotment of the share which would be allotted to his vendor as a coparcener. (¶25) Code of Civil Procedure, 1908 — pleadings — no evidence without pleading — Held further: Evidence cannot be let in without a pleading. A stand taken for the first time in the course of evidence — that the power of attorney was executed on behalf of minor children and therefore does not bind them, and that there had been an oral partition — cannot be taken into consideration where no such averment is found in the plaint. (¶21, 29) Will — unregistered instrument — suspicious circumstances — propounder not examined — Held further: Where an unregistered Will is attested by close relatives of both parties, the propounder and the scribe are not examined, the propounder does not enter the witness box to substantiate his case and submit himself to cross examination, and material facts as to the testator's subsisting marriage and surviving brother find no place either in the Will or in the plaint, the Will is shrouded by suspicious circumstances which the propounder has failed to clear, an adverse presumption has to be drawn, and the Will is not proved. The testator is then deemed to have died intestate and his legal heirs are necessary parties. (¶30, 31) Limitation Act, 1963 — Article 134 — Limitation — challenge after attaining majority — Held further: Where those who were minors on the date of the power deed attained majority and did not challenge either the power deed or the sale deed within three years thereafter, and the plaintiffs have not established that knowledge of the transaction came to them only on receipt of a certified copy, the suit for declaration is barred by limitation. Appeal Suit dismissed and the judgment and decree of the trial Court confirmed. (¶27, 28, 33)

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