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Himachal Pradesh High Court · body

2019 DIGILAW 1478 (HP)

INDER DEV v. KUBZA DEVI

2019-09-30

SURESHWAR THAKUR

body2019
ORDER : 1. The instant appeal, is, directed by the aggrieved plaintiffs, against, the concurrently recorded judgments, made, initially by the learned trial Judge, and, latter by the learned first appellate Court, (i) where through the plantiffs' suit, seeking pronouncement, of, a declaratory decree, hence, for annulling Ext. PW2/A, exhibit whereof, comprises, the, apposite registered testamentary disposition, rather, stood dismissed. The aggrieved therefrom plaintiffs, through, casting the instant regular second appeal, strive, to, beget reversal, of, the concurrent verdicts, as, stand pronounced against them. 2. When the instant appeal, came up, for admission, before this Court, on 31.7.2008, this Court admitted the instant RSA on, the hereinafter extracted substantial question(s), of, law:- (i) Whether the findings of the learned First Appellate Court are based upon misreading and misconstruction of the pleadings and oral as well as documentary evidence on record especially Will Ext.DW2/A and statements of DW-4 Shri Deep am and DW-5 Shri Kartar Singh? (ii) Whether the judgment and decree of the learned Courts are liable to be quashed and set aside on the short ground that the alleged Will Ext. DW2/A has been wrongly held to be proved in the absence of due compliance of the provisions of Section 63 of the Indian Evidence Act, especially when the only attesting witness examined, DW-4 Deep Ram had denied the execution of the Will? (iii) Whether the learned Courts below have erred in law by adverting to Section 68 and 71 of the Indian Evidence Act to return the findings of valid execution of Will Ext. DW2/A notwithstanding complete non-compliance of Section 63 of the Indian Evidence Act? (iv) Whether the learned Court below has erred in law by holding the Sub Registrar to be attesting witness in the absence of any evidence to the effect that the Executant thumb marked the Will in his presence of gave a personal acknowledgement to the effect that she had thumb marked the Will especially when the Will was allegedly executed on 5.3.1999 and allegedly attested on 12.3.1999? Substantial questions of law 3. Through Ext.DW2/A, hence embodying, the, apposite registered testamentary disposition, the, deceased testator, one Kokla, constituted the defendants, as, her legatees, and, the latter, are the propounders, of, Ext. DW2/A. For ensuring, the, meteing(s), of, the completest validation vis-a-vis, execution, of, Ext. Substantial questions of law 3. Through Ext.DW2/A, hence embodying, the, apposite registered testamentary disposition, the, deceased testator, one Kokla, constituted the defendants, as, her legatees, and, the latter, are the propounders, of, Ext. DW2/A. For ensuring, the, meteing(s), of, the completest validation vis-a-vis, execution, of, Ext. DW2/A, and, also it being ensured, to be, completely proven, to be, validly and duly executed (i) hence, the defendants were enjoined to adduce cogent evidence, rather making visible displays, qua, satiation, becoming meted vis-a-vis, the preemptory statutory ingredients, embodied, in, Section 63 of the Indian Succession Act, provisions whereof, stand extracted hereinafter: "63. Execution of unprivileged Wills - Every testator, not being a soldier employed in an expedition or engaged in actual warfare [for an airman so employed or engaged] or a mariner at seal, shall execute his Will according to the following rules:- (a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to given effect to the writing as a Will. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to given effect to the writing as a Will. (c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has been some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary." (i) and hence they were enjoined, to, through marginal witnesses, to, the afore exhibit, ensure emanations, of, bespeaking(s), from them, (ii) vis-a-vis, the deceased testator, while holding the, requisite, compos mentis, hers executing, the, afore exhibit, (iii) and also, the marginal witnesses, thereto, were, also statutorily encumbered, to, testify qua hers, making(s), in, their respective presence, hence her, signatures thereon, (iv) besides, were, statutorily, enjoined, to, also depose, qua, in the presence, of, the deceased testator, theirs' also making their respective markings, or, impressions, thereon, (v) the propounders, of, Ext.DW2/A, for ensuring adduction of evidence, vis-a-vis, hence absolutest compliance being meted, qua the apposite statutory parameters, rather ensured, the, stepping into, the, witness box, of, one, of, the marginal witnesses, to, Ext. DW2A, inasmuch, as, they ensured, the, stepping into the, witness box, of, one Deep Ram, who, yet, while stepping into the witness box, as DW-4, omitted, to, make any echoing(s), in his testification, for hence, there through, the, completest satiation, becoming meted, vis-a-vis, the afore preemptory statutory parameters. However, as is evident, on, a reading of, the, testification, of, Deep Ram, rather the, other marginal witnesses, to Ext. DW2/A, one Nand Ram, had, hence expired two years, prior, to his being ensured, to, step into the witness box, for his, hence erasing any aura, of, suspicion, arising, vis-a-vis, the valid, and, due execution, of, Ext. However, as is evident, on, a reading of, the, testification, of, Deep Ram, rather the, other marginal witnesses, to Ext. DW2/A, one Nand Ram, had, hence expired two years, prior, to his being ensured, to, step into the witness box, for his, hence erasing any aura, of, suspicion, arising, vis-a-vis, the valid, and, due execution, of, Ext. DW2/A, (vi) and, as stood engendered, from, Deep Ram, not making, in his testification, any echoing, hence, within the statutory enunciation(s), borne in Section 63, of, the Indian Succession Act, (vii) for, rather thereafter, and, there through, the, execution, of, Ext. DW2/A, becoming completely proven, to be validly, and, duly executed, by the deceased testator, one Kolka. 4. The effect of the, demise, of, the other marginal witness, one Nand Ram, occurring prior, to, the stepping into the witness box, of, Deep Ram, who, however, turned hostile, vis-a-vis, the propagation(s), of, the propounders, of, Ext. DW2/A, (i) and, with thereupon, the, defendants, becoming precluded to ensure, the, stepping into the witness box, of, Nand Ram, for hence, the, latter there through rather erasing, all, the afore ingraining suspicion(s), vis-a-vis, the adduced purported requisite statutory proof, qua, the purported completest, and, valid execution, of, Ext, DW2/A, (ii) suspicion, whereof, stood engendered, from Deep Ram, turning hostile, to, the propagation(s), of, the defendants', the, propounders, of, Ext. DW2/A, (iii) thereupon, it was not incumbent, upon, the defendants, to, within the ambit, of, Section 63, of, the Indian Succession Act, proceed, to ensure, the, stepping into the, witness box, of, one Nand Ram, and, rather it was open, for the defendants, to rely upon, the testification, of, DW-1, the sub-Registrar concerned, who, ordered, for, the registration, of Ext. DW2/A, (iv) given, the, afore recoursing, squarely falling within, the, ambit, of, the statutory expression "may be proved by other evidence" as occurring, in Section 71, of, the Indian Evidence Act, provisions whereof stand extracted hereinafter: 71. Proof when attesting witness denies the execution:- If the attesting witness denies or does not recollect the execution of the document, its execution "may be proved by other evidence." for hence thereupon(s) their proving, the, valid execution of, DW2/A. The apposite "other evidence" encapsulated, within the ambit of Section 71, of, the Indian Evidence Act, is, voiced, by, DW-5. Proof when attesting witness denies the execution:- If the attesting witness denies or does not recollect the execution of the document, its execution "may be proved by other evidence." for hence thereupon(s) their proving, the, valid execution of, DW2/A. The apposite "other evidence" encapsulated, within the ambit of Section 71, of, the Indian Evidence Act, is, voiced, by, DW-5. DW-5, in his deposition, has, visibly, and, with, the requisite animus attestendi, made, unequivocal bespeaking(s), vis-a-vis, a) his making the sealed signatured statutory, endorsements, only, when preceding therewith, he had ensured, vis-a-vis, all contents thereof, being read over, explained, and, his also ensuring qua theirs becoming fully understood, by the afore Kolka, and, he also voices vis-a-vis, the attested signatures, of, one Kolka, as, existing thereon, also becoming, in his, presence, hence embossed thereon, b) thereupon the afore made bespeaking(s), by DW-5, the Sub-Registrar concerned, emphatically, when his deposition, has, remained un-eroded, vis-a-vis, its vigor, obviously, acquire an aura of conclusivity, (c) and also, the further inference, as, is, bolstered therefrom, is, with, vis-a-vis, DW-5, hence evidently with, the, requisite animus-attestendi, rendering efficacious, proof, vis-a-vis, the valid, and, due execution, of, Ext. DW2/A, (d ) and, also his deposition, begetting, the, meetings, of, the completest satiation, vis-a-vis, all the requisite statutory parameters, embodied, in, Section 63 of the Indian Succession Act, thereupon, Ext. DW2/A, is, construed, to, become hence proven, to, be validly, and, duly executed. Substantial questions of law are answered accordingly. 5. There is no merit in the instant appeal, and, the same is dismissed. The impugned judgment(s) and decree(s), pronounced, by both, the learned Courts below, are, affirmed and maintained. All pending application(s), if any, are disposed of.