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2017 DIGILAW 1039 (RAJ)

HANUMAN v. GOPAL

2017-04-20

PANKAJ BHANDARI

body2017
JUDGMENT : Pankaj Bhandari, J. Appellant has preferred this appeal aggrieved by judgment and decree dated 18.05.1993 passed by Additional District Judge, Bikaner whereby the suit filed by the appellant for partition was dismissed. 2. The factual matrix of the case are that the property in question belonging to Chuni Lal was stated to be bequeathed by Chunilal in favour of his son plaintiff No.1, Babulal and his grand son plaintiff No.2 Hanuman and defendants No. 1 to 4 sons of Sugnaram and grand son of Chunilal on 28.01.1959. Evidence was adduced by the parties to prove the will and ultimately the Court held that the will was not proved by the plaintiff and the suit was accordingly dismissed on this ground. 3. Heard, counsel for the parties. 4. For deciding this appeal, I frame the following point for determination: (1) Whether the will dated 28.01.1959 was executed by Chunilal if so whether the plaintiff are entitled to a decree of partition on the basis of the will. 5. It is contended by counsel for the appellant that PW-1 Hau Ram was produced by the plaintiff who has established that the will was signed by Chunilal he has also stated in his evidence that the signatures of witnesses were also done in his presence and the registering authority also signed in his presence. 6. It is contended that there was specific evidence of Hau Ram PW-1 and there was no evidence in rebuttal of the same, therefore, the Court should have relied on the statement of PW-1. 7. Counsel for the appellant has placed reliance on Madhukar D. Shende v. Tarabai Aba Shedage, 2002 WLC (SC) Civil 141 and Shri Ramesh Chandra v. Smt. Kamla Devi, 2013 (1) WLC (Rajasthan) 656. 8. Counsel for the respondent has opposed the appeal. His contention is that the Court below has discussed minutely the evidence of PW-1 and has found that PW-1 is not a reliable witness. It is contended that the Court has rightly come to the conclusion that PW-1 was not present at the time of the execution of the alleged will. 9. I have considered the arguments put forth by the counsel fort the parties. Chunilal had three sons Babulal, Sugna Ram and Jethmal and two daughters. It is contended that the Court has rightly come to the conclusion that PW-1 was not present at the time of the execution of the alleged will. 9. I have considered the arguments put forth by the counsel fort the parties. Chunilal had three sons Babulal, Sugna Ram and Jethmal and two daughters. The alleged will has been executed in equal share in favour of his son Babulal and grand son Hanuman for one half and grand sons Gopal, Kishan, Shankar and Hari son of Sugna Ram for the other half. The will is stated to have been executed on 28.01.1959. PW-1 is the solitary witness produced by the plaintiff who has stated that the executant of the will and the attesting witnesses and the registrar has expired. 10. From perusal of the statement of PW-1, it is borne out that he was taken by Chunilal to the deed writer and the will was prepared in his presence the witness has stated that the will was read over in his presence and the witness has also signed in his presence and the witnesses signed the will on the saying of Chunilal. From perusal of the will it is revealed that the fact that Chunilal told the witnesses to sign the will as attesting witness is not mentioned in will Ex.1. 11. Presence of PW-1 is doubtful, the reason given by him for not attesting the will is that though Chunilal asked him to attest but he refused as two persons had already signed the will. If PW-1 accompained Chunila to the deed writer and was present throughout the time when deed was written and was produced before Registrar there is no reason why his signatures were not obtained on the will. 12. The Court below has also considered the fact that the witness in his cross-examination has stated that he is not aware as to who all went with Chunilal at the time of execution of the will. PW-1 Hau Ram in his cross-examination has also stated that he is not aware as to in which language Chunilal signed the will. The Court below has also dealt with the statement of PW-1 with regard to the signatures of the Registrar and has come to the conclusion that Mr. Singhal was not Registrar at that relevant time. 13. PW-1 Hau Ram in his cross-examination has also stated that he is not aware as to in which language Chunilal signed the will. The Court below has also dealt with the statement of PW-1 with regard to the signatures of the Registrar and has come to the conclusion that Mr. Singhal was not Registrar at that relevant time. 13. The presence of this witness at the time of execution of the will is in fact doubtful and it appears that he has been produced as a witness merely to establish execution of the will as the other witnesses of the will had expired. 14. Hau Ram has no where stated that he is acquainted with the signatures of Chunilal and the attesting witnesses. No attempt was made by the plaintiff to produce witnesses who were acquainted with the signatures of the attesting witness or the executant of the will. 15. DW-1 Gopal in his Examination in Chief has stated that Ex.1 does not bear the signatures of Chunilal and has given reason why the signatures are differing this witness was not cross-examined with regard to this statement that being so his statement cannot be discarded. 16. The will was not proved by the plaintiff in accordance with law. The Court below has therefore not committed any illegality in coming to the finding that the plaintiff has failed to prove the execution of the will. Point for determination is accordingly decided against the appellant. 17. The judgment cited by the counsel for the appellant Shri Ramesh Chandra v. Smt. Kamla Devi (supra) does not apply on facts of the case because in the matter before the Rajasthan High Court the will in question was signed only as D whereas the signature of the testator was DS. The Court held that this cannot be considered as a ground for coming to the conclusion that the will was not signed by the testator. In Madhukar D. Shende v. Tarabai Aba Shedage (supra). The will was questioned by rank tresspassers no relative of testator challenged the will, the validity of the will, being upheld in an earlier suit, the Court held that there was no justification in holding the will as not valid merely because the attesting witness happened to be class fellow of son of the testator. 18. The will was questioned by rank tresspassers no relative of testator challenged the will, the validity of the will, being upheld in an earlier suit, the Court held that there was no justification in holding the will as not valid merely because the attesting witness happened to be class fellow of son of the testator. 18. The finding a point for determination being decided against the appellant the appeal deserves to be and is accordingly dismissed. Stay application stands disposed of. Record of the Court below be returned forthwith.