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2012 DIGILAW 1570 (PNJ)

Ram Kishan v. General Public

2012-11-03

L.N.MITTAL

body2012
JUDGMENT Mr. L. N. Mittal, J.: (Oral) - CM No.10475-C of 2012 For reasons mentioned in the application, which is accompanied by affidavit of the counsel, delay of 32 days in refilling the appeal is condoned. The application stands allowed accordingly. CM No.10476-C of 2012 This is application for impleading legal representatives of defendant No.3-Pahlu Ram, since deceased. It is alleged in the application that the defendant No.3 has left behind two sons and two daughters (respondents No.3 to 6) as his only legal representatives. The application is accompanied by affidavit. Accordingly the application is allowed, subject to all just exceptions and respondents No.3 to 6 are ordered to be impleaded as legal representatives of defendant No.3-Pahlu Ram, since deceased for the purpose of this appeal. CM No.10477-C of 2012 Allowed as prayed for. Main Case 1. Plaintiff Ram Kishan having partly lost in both the Courts below has filed this second appeal. 2. The dispute relates to inheritance of suit land from Roshan. The suit was filed on 13.02.2004. Case of the plaintiff-appellant is that Roshan was not heard of for 25 years preceding the filing of the suit and was presumed to have died. Plaintiff claimed ownership and possession of the suit land on the basis of Will dated 07.10.1977 allegedly executed in his favour by Roshan. 3. Defendants No.2 and 3 contested the suit whereas defendant No.1 is general public. 4. It was pleaded that Roshan Lal was not heard of for more than 40 years. Will dated 07.10.1977 set up by plaintiff was controverted. Defendants No.2 and 3 claimed to be in cultivating possession of the suit land. 5. Learned trial Court partly decreed the suit holding that Roshan is presumed to have died. However, suit regarding the remaining relief stands dismissed. Lower appellate Court has upheld the judgment and decree of the trial Court by dismissing the first appeal preferred by the plaintiff, who has, therefore, filed this second appeal. 6. I have heard learned counsel for the appellant and perused the case file. 7. In order to prove the impugned Will, the plaintiff has examined scribe of the Will and finger print expert, who has opined that thumb impressions of Roshan on the impugned Will match with his standard thumb impressions on a sale deed. 8. 6. I have heard learned counsel for the appellant and perused the case file. 7. In order to prove the impugned Will, the plaintiff has examined scribe of the Will and finger print expert, who has opined that thumb impressions of Roshan on the impugned Will match with his standard thumb impressions on a sale deed. 8. Counsel for the appellant contended that the question whether scribe can be treated as attesting witness of the Will or not is a substantial question of law, which is required to be determined in second appeal. Reliance in support of this contention has been placed on judgment of Hon’ble Supreme Court in the case of Bhag Singh versus Jaskirat Singh & others, [2010(1) Law Herald (SC) 119 : 2010(1) Law Herald (P&H) 162 (SC)] : 2010(2) SCC 250. It was also contended that the Will is duly proved by examination of scribe and finger print expert. Reliance has been placed on judgment of Hon’bel Supreme Court in the case of Babu Singh & others versus Ram Sahai @ Ram Singh, [2008(3) Law Herald (P&H) 1898 (SC)] : 2008(3) Civil Court Cases 509 (SC). 9. I have carefully considered the aforesaid contentions but the same cannot be accepted. No attesting witness of the Will has been examined although Imrat an attesting witness of the Will is still alive. According to Section 63 of the Indian Succession Act, 1925, a Will is required to be attested by at least two witnesses. According to Section 68 of the Evidence Act, where a document is required by law to be attested, it cannot be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. Combined effect of both these provisions is that at least one attesting witness of the Will if alive had to be examined to prove its execution. It has come in evidence that Imrat an attesting witness of the Will is alive, but has not been examined to prove the execution of the Will. Consequently mandatory provision of Section 68 of the Evidence Act read with Section 63 of the Indian Succession Act has not been complied with and therefore, execution of the Will has not been proved in accordance with law as rightly held by the Courts below. 10. Consequently mandatory provision of Section 68 of the Evidence Act read with Section 63 of the Indian Succession Act has not been complied with and therefore, execution of the Will has not been proved in accordance with law as rightly held by the Courts below. 10. In the instant case, scribe cannot be treated to be attesting witness of he Will because the scribe specifically stated that the executant was not personally known to him. In view of this categorical statement of the scribe, he cannot be treated as attesting witness of the Will for satisfying the requirement of Section 68 of the Evidence Act. Judgment in the case of Bhag Singh (supra) has no applicability to the instant case because in that case, both the Courts below had treated the scribe as attesting witness of the Will and thereby accepted the Will. This Court dismissed the second appeal observing that no substantial question of law arose for determination. However, the Hon’ble Supreme Court held that substantial question of law as to whether scribe could be treated as attesting witness of the Will did arise for determination in the said second appeal and the matter was, therefore, remanded to this Court for rehearing of the second appeal. Moreover, in that case, one Will had been discarded and the other Will had been accepted although there was reference of one Will in the other Will and, therefore, it resulted in contradictory and conflicting findings regarding the Wills in question. Thus facts in the case of Bhag Singh (supra) were completely distinguishable. Moreover, in the instant case, question whether scribe can be accepted as attesting witness of the Will has to be answered in the negative i.e. against the plaintiff-appellant because the scribe did not personally know the testator. 11. Judgment in the case of Babu Singh (supra) is also of no help to the appellant in the instant case because in the said case, it was held that if all the attesting witnesses are dead or out of jurisdiction of the Court or kept away by the adverse party or cannot be traced, then the Will can be proved in accordance with Section 69 of the Evidence Act. In the instant case, however, the said situation has not arisen because Imrat an attesting witness of the Will is alive and available but has not been examined for reasons best known to the plaintiff-appellant. Consequently the Will has not been proved in accordance with law as rightly found by the Courts below. 12. It is also worth mentioning that the plaintiff himself in his statement recorded on 08.09.2009 stated that Roshan Lal was missing for the last 30-35 years. Therefore, Roshan Lal, as per testimony of the plaintiff himself, could have been missing even since the year 1974 and, therefore, could not have executed the alleged Will dated 07.10.1977. 13. For the reasons aforesaid, I find no merit in this second appeal. No question of law, much less substantial question of law, arises for determination in this second appeal. The question of law if scribe could be treated as attesting witness of the Will has been answered against he plaintiff-appellant. Accordingly the appeal is dismissed in limilne.