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2006 DIGILAW 2256 (PNJ)

Nando v. Sher Singh

2006-05-19

HEMANT GUPTA

body2006
Judgment Hemant Gupta, J. 1. The defendant is in second appeal aggrieved against the judgment and decree passed by the Courts below hereby a suit for declaration that the plaintiff is owner in possession of suit property by virtue of Will date 4.7.1981 executed by Juglal was decreed. 2. Juglal was the owner of certain land situated within the revenue estate of village Dighawa Jattan and Mohmad Nagar, Teshil Lobara, District Bhiwani, Said Juglal died in 1995. The plaintiff relies upon registered Will dated 4.7.1981. The challenge in the suit was to the mutation sanctioned in favour of defendant-appellant on the basis of her being his legally wedded wife. It is the case of the defendant-appellant that she was married to Udmi, brother of Juglal, but after the death of Udmi, she contracted Kareva marriage with Juglal. 3. Both the Courts below have found that the stand of the defendant that she contracted Kareva marriage with Juglal has not been proved. In fact sont has appeared on behalf of the defendant to prove such fact. 4. It has also been found that Will dated 4.7.1981, Exhibit P1, is proved to be executed by the testimony of PW9 Amar Singh and scribe PW6 Chandersain. Shri Hardul Singh, the then Registrar, Loharu, who has registered the Will, has also been examined as PW8, and, thus, a finding was returned that the plaintiff is able to prove the due execution of the Will and that he is a legatee. 5. Learned Counsel for the appellant has vehemently argued that the Will is in respect of the land situated in one of the villages i.e. Dighawa Jattan and the same cannot be applied in respect of the land situated in other village Mohmad Nagar. However the said argument is factually not tenable. In the opening lines of the Will, he has mentioned that his land is situated at village Dhighwa Jattan but he has bequeathed his entire movable and immovable property as owner to Sher Singh, the present plaintiff. The Will also recites that no other heir will have no objection to such bequeath. Therefore, the objection raised is factually not tenable. 6. It is further found that PW9 Amar Singh, the attesting witness, is though resident of village Manphara also known as Mohamad Nagar but due to clerical mistake, he was shown as resident of village Allaudinpur in the Will. Therefore, the objection raised is factually not tenable. 6. It is further found that PW9 Amar Singh, the attesting witness, is though resident of village Manphara also known as Mohamad Nagar but due to clerical mistake, he was shown as resident of village Allaudinpur in the Will. The said mistake in respect of the village of one of the attesting witnesses cannot be a ground to return a finding that the attesting witness has not attested the Will. Once the Will is proved to have been executed in his presence, the mistake in the village at the hands of the scibe is not sufficient to discard the Will. The mistake in the description of village is not material as there is no dispute regarding the identitu of the withness. 7. Still further, it is argued that a suit for declaration simpliciter is not maintainable. Both the Courts have returned a concurrent finding of fact that the plaintiff is in possession of the suit property. The suit for declaration is necessitated on account of the mutation having been sanctioned in favour of the defendant. Therefore, the argument that a suit for declaration simpliciter is not maintainable is not sustainable in law as the plaintiff, if in possession, can only seek declaration in respect of the title. No consequential relief can be claimed by the plaintiff as not only he claims to be in possession but has been found to be in possession. 8. Learned Counsel for the appellant has also relied upon a judgment of this Court reported as Nimbo v. Satyabir Singh 1995-1 109 Punjab Law Reporter 546 to contend that the Will is not proved as the attesting witness was not aware of the contents of the Will. The judgment referred to by learned Counsel for the appellant does not lay down the said proposition. Though one of the arguments raised by the appellant high-lighting suspieious circumstances was that the witnesses have no knowledge about the contents of the Will but while discarding the will this fact has not been taken into consideration. The attesting witness is a witness of the fact that the testator has signed or thumb-marked the Will in his presence. It is not expected from the attesting witness to have knowledge about the contents of the Will. The attesting witness is a witness of the fact that the testator has signed or thumb-marked the Will in his presence. It is not expected from the attesting witness to have knowledge about the contents of the Will. The learned Counsel for the appellant could not refer to any other precedent or any provision of law by which it can be inferred that the attesting witness must have the knowledge about the contents of the document. In fact Sections 90 and 91 if the Evidence Act, 1872 , is to the effect that oral evidence cannot be led in respect of the contents of a document. Therefore, the more fact that the attesting witness has no knowledge about the contents of he Will cannot be a factor to hold that the Will is surrounded by suspicious circumstances. 9. The findings recorded by the Court below are based upon proper appreciation of evidence. Such findings are sought to be disputed by reappareciation of evidence alone. Thus, I do not find any patent illegality or material irregularity in the findings recorded by the Courts below which may raise any substantial question of law for consideration of this Court in second appeal. 10. Accordingly, the appeal is dismissed.