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2013 DIGILAW 1455 (MP)

Ram Avtar Choubey v. Brij Bihari Choubey

2013-11-26

K.K.TRIVEDI

body2013
JUDGMENT : K.K. Trivedi, J. 1. This second appeal under Section 100 CPC is directed against the judgment and decree dated 27.1.2010 passed in Civil Appeal No. 7-A/2009 by Additional District Judge, Panna whereby the judgment and decree dated 29.4.2009 passed in Civil Suit No. 22-A/2008 by the Civil Judge, Class II, Ajaygarh, Panna has been reversed and the suit of the respondent/plaintiff has been decreed, stating that the learned trial court after proper appreciation of the evidence came to the conclusion that the Will dated 20.5.1987 (Ex. D-11) was proved by the appellant/defendant, but such findings have been reversed by the lower appellate court without any proper appreciation of the fact that the Will was duly proved by the attesting witnesses. It is contended that there were two witnesses of the Will, said to be executed by Kunj Bihari bequeathing all his self acquired property to the appellants/defendants, and one of the witnesses has been examined, who has categorically proved his signatures on the Will, but this fact was not taken into consideration by the lower appellate court and it was wrongly held that the attesting witnesses have not proved the execution of the Will and the claim of the respondent/plaintiff was decreed by the lower appellate court. In fact it was the case of the respondent/plaintiff that Kunj Bihari, the original holder of the land, the original respondent/plaintiff and the father of the original appellants/defendants were the brothers. Kunj Bihari has not executed any Will of his self acquired property and after the death of Kunj Bihari, both the brothers were entitled to 1/2 share in the said property. Such a claim was contested by the original defendant stating that Kunj Bihari has executed a Will in his favour on 20.5.1987 bequeathing entire property to him. The issues were framed by the trial court and the evidence was recorded. During pendency of the suit, since the original defendant died, the appellants herein were substituted as his legal representatives. The statements of witnesses indicate that for proving the Will, the appellants/defendants have examined only one attesting witness of the Will namely Bhola, son of Dwarka (DW-2), who has categorically deposed about the execution of the Will, but has not verified or proved the signatures of the testator of the Will. On the other hand, he proved his signatures only on the said Will. On the other hand, he proved his signatures only on the said Will. This witness was unable to explain as to who has first signed the Will. On the other hand, he stated that the Will was signed by the attesting witnesses earlier and then the signatures were made by the testator. 2. After appreciating the evidence of this witness, the learned lower appellate court reached to the conclusion that the Will was not said to be proved by the appellants/defendants in terms of the provisions of Section 68 of the Indian Evidence Act and the findings recorded by the trial court were not in conformity with the provisions of Section 63 of the Indian Succession Act. Therefore, the learned lower appellate court reached to the conclusion that the dismissal of the suit of the respondents/plaintiffs only on the strength that the claim was not proved, was not justified and while reversing the findings of the trial court, the learned lower appellate court decreed the suit of the respondent/plaintiff to the extent of 1/2 share and held that the respondent/plaintiff would be entitled to grant of 1/2 share in the property in suit. 3. Though it is not necessary for this Court to examine the evidence in consideration of an appeal under Section 100 CPC, but such findings recorded by the first appellate court are examined in light of the evidence adduced by the respondent/plaintiff and the appellants. True it is that attesting witness was examined by the appellants, but the said witness completely failed to prove the attestation of the said Will in appropriate manner, inasmuch as he has not proved the signatures of the testator. If the signatures of the testator on the Will are not proved, then it cannot be said that the Will is proved. In view of the aforesaid, there is no infirmity in the consideration of such evidence by the lower appellate court. No substantial questions of law arises for consideration in this appeal, which fails and is hereby dismissed. However, there shall be no order as to costs.