Punjab-Haryana High Court
(O&M) Daya Kishan And Others vs Bhim Singh And Others on 16 April, 2024
Neutral Citation No:=2024:PHHC:052202
Neutral Citation No.2024:PHHC:052202
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
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RSA No.2508 of 1991 (O&M)
Reserved on: 10.04.2024
Pronounced on: 16.04.2024
Daya Kishan and others .....Appellants
Vs.
Bhim Singh (deceased)
through his LRs and anr. .....Respondents
CORAM:- HON'BLE MR. JUSTICE DEEPAK GUPTA
Present:- Mr. Nitin Kumar, Advocate for the appellants.
Mr. Sandeep K. Sharma, Advocate for respondent No.1.
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DEEPAK GUPTA, J.
This Regular Second Appeal is against the concurrent findings of the Courts below, whereby suit for declaration and consequential relief of possession and permanent injunction filed by the plaintiffs (appellants herein) was dismissed on 28.09.1990 by the Trial Court and the appeal filed by them was dismissed by the First Appellate Court on 23.08.1991. To avoid confusion, parties shall be referred as per their status before Ld. Trial Court.
2. The dispute is regarding inheritance of Lalman son of Singh Ram, who was the owner of the suit land situated in Village Kahnaur, Tehsil and District Rohtak. Said Lalman expired on 15.06.1983 leaving behind 06 children, who are parties to this litigation. Four of them, namely, Daya Kishan, Hari Kishan, Maya and Savitri (appellants herein) instituted the suit by claiming that they along with defendant No.2 - Smt. Banti (respondent No.2 herein) are owner in possession of the suit land to the extent of 5/6th share. They challenged the mutation sanctioned in favour of defendant No.1
- Bhim Singh (now respondent No.1 through his LRs) regarding the entire suit land to be null and void. It was further pleaded that in case any Will is 1 of 16 ::: Downloaded on - 20-04-2024 10:24:06 ::: Neutral Citation No:=2024:PHHC:052202 RSA No.2508 of 1991 (O&M) 2024:PHHC:052202 alleged to have been executed by Lalman in favour of defendant No.1, the same was null and void and not binding upon the plaintiffs, as Lalman had no authority to execute the Will since suit land was ancestral in nature; that Lalman was an old aged person of feeble mind, not competent to understand the nature of documents and that his signatures might have been obtained on some papers so as to redeem the part of the suit land, which was under mortgage.
3. Defendants contested the suit and set up the registered Will dated 17.05.1976 executed by Lalman in favour of defendant No.1, on which basis mutation No.5228 was sanctioned on 28.05.1985 in his favour; that defendant No.1 was the exclusive owner in possession of the suit land. Prayer was made for dismissal of the suit.
4. Following issues were framed by the learned trial Court:-
"1. Whether the suit land was ancestral in the hand of deceased Lalman qua the parties? OPP
2. Whether the parties are governed by custom in the matters of alienation, if so what that customs is? OP
3. Whether deceased Lalman executed a valid Will dated 17.5.1976 in favour of defendant No.1?OPD
4. Whether the plaintiffs have not locus-standi to file the suit? OPD
5. Whether the court fee is deficient? OPD
6. Whether the suit is not maintainable in the present form? OPD
7. Relief."
5. Evidence produced by the parties was taken on record. The trial Court found the suit land to be self acquired property in the hands of Shri Lalman on the basis of revenue record and so, held that he had the authority to bequeath the suit property in favour of anyone he liked. It was further found that there was no evidence to show that the parties were governed by any custom in the matter of alienation, as had been contended by the plaintiffs. It was further found that Page No.2 out of 16 pages 2 of 16 ::: Downloaded on - 20-04-2024 10:24:06 ::: Neutral Citation No:=2024:PHHC:052202 RSA No.2508 of 1991 (O&M) 2024:PHHC:052202 registered Will dated 17.05.1976 was duly proved to have been executed by Shri Lalman, whereby he had bequeathed the suit property in favour of defendant No.1. Issues No.1 to 3 were accordingly decided. Under Issue No.4, plaintiffs were held to have no locus standi to file the suit and so, issue was decided accordingly. However, finding on issues No.5 and 6 went in favour of plaintiffs. Consequent to all the findings, the suit was dismissed vide judgment dated 28.09.1990. Only two of the plaintiffs approached the First Appellate Court, who affirmed the findings of the trial Court and dismissed the appeal on 23.08.1991.
6. Before this Court, it is contended by learned counsel for the appellants- plaintiffs that Courts below erred in law as well as in facts in holding the Will to have been duly proved; that out of two attesting witnesses of the Will, one namely, Devi Sahai, Nambardar was stated to have expired, whereas the other witness, namely, Bani Singh was not examined; that original Will was not produced on record and despite the fact that its loss was not proved, the Court granted permission to lead the secondary evidence in order to prove the Will, which could not have been granted; that Courts below erred in holding that suit property was not ancestral qua Lalman and that there were suspicious circumstances surrounding the Will, inasmuch as there was no cogent explanation as to why Lalman's Will bequeathed the entire property to only one of his children i.e. defendant No.1 by ignoring the other children. Prayer is made for setting aside the judgments of the Courts below and to decree the suit property.
7. Needless to say that respondent No.1 - defendant No.1 defended the impugned judgment to be based upon proper appreciation of factual and legal position and prayed for dismissal of the appeal. It is also argued by Ld. Counsel for the respondent that there is no reason to interfere in the concurrent findings as Page No.3 out of 16 pages 3 of 16 ::: Downloaded on - 20-04-2024 10:24:06 ::: Neutral Citation No:=2024:PHHC:052202 RSA No.2508 of 1991 (O&M) 2024:PHHC:052202 recorded by the Courts below.
8. I have considered the submissions of both the sides and have perused the entire record.
9. Jamabandi (Ex.P3) records Lalman to be the owner of the property in dispute. There is a presumption of truthfulness attached to the entries in the record of rights, though the said presumption is rebuttable. Plaintiffs failed to produce any evidence to rebut the presumption or to show that Lalman had inherited the suit property from his ancestors and as such, the trial Court rightly held the suit property to be self acquired in the hands of Lalman. It is relevant to mention that before the First Appellate Court, the question relating to nature of the suit property in the hands of Lalman; or regarding the applicability of the custom in the matter of alienation, was not at all pressed and so, it was observed by the First Appellate Court that these questions had paled into insignificance. The only question raised before the Appellate Court was regarding the genuineness of the Will as set up by defendant No.1.
10. Admittedly, the original Will dated 17.05.1976 was not produced in evidence. Permission to prove said Will by way of secondary evidence was granted by trial court vide order dated 02.06.1990. Contention of learned counsel for the appellants is that said permission was wrongly granted in the absence of proof of loss of the Will.
11. Section 65 of the Indian Evidence Act, 1872 (for short, `the Evidence Act') deals with the cases in which secondary evidence relating to the documents may be given. It reads as under:-
"65. Cases in which secondary evidence relating to document may be given.
Secondary evidence may be given of the existence, condition or contents Page No.4 out of 16 pages 4 of 16 ::: Downloaded on - 20-04-2024 10:24:06 ::: Neutral Citation No:=2024:PHHC:052202 RSA No.2508 of 1991 (O&M) 2024:PHHC:052202 of a document in the following cases :
(a) when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section sixty-six, such person does not produce it;
(b) xxxxxxxxxxxxxxx
(c) When the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) to (g) xxxxxxxxxxxxxx In cases (a), (c) and (d), any secondary evidence of the contents of the documents is admissible.
xxxxxxxxxxxxx."
12. As far as existence of WILL is concerned, it may be noted that mutation No.5228 dated 28.05.1985 (Ex.P1) was sanctioned in favour of Bhim Singh on the basis of registered Will dated 17.5.1976. The mere fact that mutation has been sanctioned on the basis of registered Will in itself proves the existence of the Will. In Joga Singh and another Vs. Gurwinder Singh and others, 2017(2) Law Herald 1279, mutation of inheritance was sanctioned on the basis of registered Will. It was held by this court that existence of the Will was proved and, therefore requirement of Section 65 of the Evidence Act for granting permission to lead secondary evidence was duly complied with.
13. Proceeding further, perusal of the Trial Court record would reveal that defendant No.1 Bhim Singh had moved an application on 11.05.1990, stating therein that Will was with him, but at the time of production of evidence, he could not trace the same and that plaintiff - Daya Kishan was openly proclaiming that applicant (defendant - Bhim Singh) will not be able to prove the Will, as the Page No.5 out of 16 pages 5 of 16 ::: Downloaded on - 20-04-2024 10:24:06 ::: Neutral Citation No:=2024:PHHC:052202 RSA No.2508 of 1991 (O&M) 2024:PHHC:052202 original Will was in his (Daya Kishan's) possession. However, plaintiff - Daya Kishan made statement before the Court, denying the possession of original possession with him and in view of that statement, the application was disposed of. It is only thereafter that defendant No.1 moved an application seeking permission to lead secondary evidence by submitting that original Will had been lost and the same was not traceable despite all possible efforts and he was apprehensive that original Will might have stolen by the plaintiffs, who were proclaiming that they would not allow the applicant-defendant to take benefit of the Will, as the same was in his possession, but plaintiff - Daya Kishan had denied the possession of the Will. After taking the reply from the plaintiffs, the application was allowed by the Trial Court on 02.06.1990.
14. It is important to notice that it is the plaintiffs, who were going to gain by the non-production of the Will because in case Will is not proved, the property will go by natural succession and plaintiffs will get 1/6th share each in the suit property. On the other hand, if Will is produced and proved on record, it is only defendant No.1 - Bhim Singh, who being the beneficiary as the Will is in his favour, is to get the entire property. Therefore, there was absolutely no reason for defendant No.1 - Bhim Singh to have concealed the original Will.
15. As has been observed by learned First Appellate Court that a Will cannot be withheld unless it is lost or if the same is revoked by the Testator. In case Testator destroys the Will in order to revoke the same, obviously it will not come forth and the plea can be taken by the beneficiary that Will had been lost. However, in the present case, there is no plea by the plaintiffs that Will had been revoked or destroyed by the Testator. As held in Durga Parsad Vs. Devi Charan, 1979 AIR 145, when there is no obvious reason or clear motive for the testator to Page No.6 out of 16 pages 6 of 16 ::: Downloaded on - 20-04-2024 10:24:06 ::: Neutral Citation No:=2024:PHHC:052202 RSA No.2508 of 1991 (O&M) 2024:PHHC:052202 revoke the Will and yet the Will is not found on the death of testator, it may well be presumed that Will was misplaced or lost or was stolen by the interested persons.
16. It has been rightly observed by the First Appellate Court that in the present case, it is only the plaintiffs and defendant No.2, who could be interested to have removed the Will. The very fact that defendant No.1 - Bhim Singh could not trace the Will, is sufficient to accept his plea that Will was lost.
17. In Dhanpat Vs. Sheo Ram (Deceased) Through LRs & Ors., 2020(2) RCR (Civil) 437, there was oral evidence of the defendants that original Will was lost. Certified copy of the Will was produced. It was held that defendants had made out sufficient ground for leading of the secondary evidence. In Amritpal Kaur Vs. Mohinder Kaur and others, 2022(3) R.C.R. (Civil) 316, it has been held by this Court that certified copy issued by the Registrar in accordance with Section 57 of the Registration Act, 1908 with respect to the registered Will is admissible in evidence, particularly when record from the Sub- Registrar is produced in order to verify the correctness of the certified copy and when it is proved that primary evidence is lost.
18. Considering the legal as well as factual position in this case, it is held that no illegality was committed by trial court in granting permission to prove the Will by way of secondary evidence.
18. Proceeding further, Ex.DW5/1 is the certified copy of the Will dated 17.5.1976. Said Will was duly registered with Sub-Registrar Rohtak. DW4 Bhim Singh, an official in the Office of Sub-Registrar, Rohtak brought the relevant record bearing document No.16 dated 17.05.1976 i.e. registered Will executed by Lalman. The certified copy of the said Will as Ex.DW5/A is proved by the Page No.7 out of 16 pages 7 of 16 ::: Downloaded on - 20-04-2024 10:24:06 ::: Neutral Citation No:=2024:PHHC:052202 RSA No.2508 of 1991 (O&M) 2024:PHHC:052202 statement of DW5 Shri Jagmal Singh, who was sub-Registrar at the time of registration of the Will.
19. The Will is purported to be scribed by Shri Tirlok Chand and the same is purported to be attested by two witnesses, namely, Devi Sahai-Nambardar and Bani Singh. It is in the evidence that the scribe Tirlok Chand and one of the attesting witnesses, namely, Devi Sahai, Nambardar had already expired. Thus, the only surviving attesting witness so as to prove the Will was Bani Singh, who has not been examined. This is one of the main contention raised by counsel for the appellants that due to non-examination of the living attesting witness, namely, Bani Devi, the Will cannot be held to be proved.
20. As per the statement of defendant No.1 - Bhim Singh made before the court, witness Bani Singh was under the influence of the plaintiffs and had concealed himself to some unknown place and despite all possible efforts, his whereabouts could not be traced and because of these reasons, he (defendant Bhim Singh) was unable to produce Bani Singh. In order to prove the Will, defendant No.1 relied upon the statement of DW5 Jagmal Singh, who was Sub- Registrar at the relevant time and who had registered the Will. Defendant further relied upon the statement of DW2 Ramdhari, who produced the register of the Deed Writer Trilok Chand and proved the relevant entry in the said register and further identified the handwriting and signature of Trilok Chand on the Will.
21. Learned counsel for the appellants has referred to the Benga Behera vs. Braja Kishore Nand 2007 (3) RCR (Civil) 240 [SC]; Dalip Singh vs. Devi Dass 2005(1) CLJ (H.P) 37; and Robert D'Mello vs. Henry D'Mello Law Finder Doc Id # 122316 [Karnataka HC] so as to contend that testimony of Sub- Registrar cannot be considered to be the statement of an attesting witness and, Page No.8 out of 16 pages 8 of 16 ::: Downloaded on - 20-04-2024 10:24:06 ::: Neutral Citation No:=2024:PHHC:052202 RSA No.2508 of 1991 (O&M) 2024:PHHC:052202 therefore, statement of DW5 - Jagpal Singh cannot be pressed into service so as to hold the Will as proved.
22. On the other hand, learned counsel for the respondent has relied upon Ved Mitra Verma vs. Dharma Deo Verma 2014(4) RCR (Civil) 568 [SC] in order to contend that in the facts and circumstances of the case, statement of sub- Registrar can be treated to be statement of an attesting witness, if he fulfills all the necessary statutory requirements.
23. In Anguri Devi vs Khazani Devi 2023(3) RCR (Civil) 758, this court discussed the legal position regarding execution of the Will, as under:-
"28. Before discussing the evidence regarding the WILL, it would be relevant to notice the legal position as to how a WILL is to be proved.
29. The mode of proving a WILL does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a WILL by Section 63 of the Indian Succession Act, which runs as under:-
"63. Execution of unprivileged wills. - Every testator, not being a soldier employed in an expedition or engaged in actual warfare) or an airman so employed or engaged or a mariner at sea, 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 give 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 seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment 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."
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30. Apart from above, Section 68 of the Evidence Act is quite relevant regarding proving the execution of a WILL. This reads as under:
"68. Proof of execution of document required by law to be attested. -- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
31. The conjoint reading of above provisions makes it quite clear that at least one out of the two attesting witnesses must be called to prove due execution of the WILL. Further, it is required for the attesting witness to prove that he had seen the testator sign or affix his mark to the WILL in his presence or that he received from the testator a personal acknowledgment of his signature or mark of the signature of such other person and each of the witnesses shall sign the WILL in the presence of testator. Reliance can be placed on Pentakota Satyanarayana Vs. Pentakota Seetharatnam 2006(1) C.C.C.563, wherein it has been reiterated by Hon'ble Supreme Court that to prove due execution of Will, attesting witness must state that each of the two witnesses has seen the executor sign or affix his mark to the instrument or has seen some other person sign the instrument in his presence and by the direction of the execution. Witness should further state that each of the attesting witness signed the instrument in the presence of the executant. Hon'ble Supreme Court held that these are the ingredients of attestation and they have to be proved by the witnesses.
32. Further, it is the settled proposition of law that it is the propounder of the Will, who has to prove its due execution. Besides, mere proving the signatures of the testator on the Will is not sufficient. Reference in this regard can be made to Ganpat Vs. Siri Chand 1992(1) LJR 252 and Janki Narayan Bhoir Vs. Narayan Namdeo Kadam 2003(2) LJR 646, wherein it has been held that due and valid execution of the Will cannot be proved by simply proving that the signatures on the Will was that of the testator. It must be proved that attestations were also made properly as required by clause (c ) of Section 63 of the Succession Act, 1925.
33. Apart from above, the mere fact that the WILL is registered, cannot be a reason to uphold its validity, if it is not found to be proved in accordance with the Page No.10 out of 16 pages 10 of 16 ::: Downloaded on - 20-04-2024 10:24:06 ::: Neutral Citation No:=2024:PHHC:052202 RSA No.2508 of 1991 (O&M) 2024:PHHC:052202 provisions of Section 68 of the Indian Evidence Act or the other provisions, if applicable."
24. Thus, as per the legal position, though attestation of a Will by at least two witnesses is required but in order to prove the Will, at least one of the attesting witnesses is required to be examined, who should prove due execution of the WILL as per requirement of Section 63 of the Indian Succession Act. However, the question is that in case attesting witnesses are dead or not available for any reason, or in case the attesting witnesses become hostile to the beneficiary by colluding with the opposite party, whether the beneficiary of the Will can be deprived of the fruits of the Will or whether in such a situation, Will can be proved in any other mode.
25. Section 69 of the Evidence Act deals with the situation, when no witness is found; whereas Section 71 of the Evidence Act deals with the situation, when attesting witness denies the execution. These provisions read as under:-
"69. Proof where no attesting witness found.
If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.
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."
26. In the present case, one of the attesting witness Devi Sahai having expired, whereas other attesting witness Bani Singh having not entered in the witness box, so, Section 71 of the Evidence Act has no applicability.
27. The statement of defendant No.1- Bhim Singh made before the Court on 03.08.1990 would clearly indicate that Bani Singh, the surviving attesting witness of the WILL, had colluded with the plaintiffs and despite all possible Page No.11 out of 16 pages 11 of 16 ::: Downloaded on - 20-04-2024 10:24:06 ::: Neutral Citation No:=2024:PHHC:052202 RSA No.2508 of 1991 (O&M) 2024:PHHC:052202 efforts, he was not traceable as he had concealed himself. This fact has also been noticed by the Courts below. It was noticed by the trial Court that repeated summons were sent to said Bani Singh and that he had concealed himself as and when approached by the Process Server. The First Appellate Court also noticed this fact that the statement of Bhim Singh to the effect that despite numerous efforts, Bani Singh was untraceable having concealed himself, was corroborated by the reports of the Process Server as well as Bailiff on the summons as well as bailable warrants issued for procuring the presence of said Bani Singh, and thus, it was quite evident that out of two attesting witnesses of the Will, one was dead and the other was not available despite adequate efforts.
28. In the aforesaid facts and circumstances, when none of the attesting witness is available, the Will is required to be proved as per Section 69 of the Evidence Act i.e., it is to be proved that attestation of one attesting witness at least is in his handwriting and signatures of the person executing the document, is in the handwriting of that person.
29. In the present case, the statement of DW2 Ramdhari proves that the Will was scribed by Trilok Chand, document writer, who had since expired. Said Ramdhari identified the handwriting as well as signature of Trilok Chand as scribe of the Will. He further identified the handwriting and signature of the Trilok Chand on the Deed Writer Register proving the entry regarding execution of the Will, copy of which is Ex.DW2/1.
30. Apart from the statement of DW2 Ramdhari, it is the statement of DW5 Jagmal Singh, retired Tehsildar, which is most relevant in the case. As per his testimony, in 1976, he was posted as Tehsildar cum Sub-Registrar, Rohtak. After going through the original register having document No.16, Bahi No.3, Jild Page No.12 out of 16 pages 12 of 16 ::: Downloaded on - 20-04-2024 10:24:06 ::: Neutral Citation No:=2024:PHHC:052202 RSA No.2508 of 1991 (O&M) 2024:PHHC:052202 No.42 Page No.166/167, he deposed the said Will was executed by Lalman son of Singh Ram resident of Village Kahnaur and was produced before him for registration. He testified that the executant of the Will, namely, Lalman had appeared along with Devi Sahai, Nambardar and Bani Singh witness. He (DW5) knew Devi Sahai, whereas the Nambardar, i.e. Devi Sahai knew Lalman as well as Bani Singh. DW5 testified further that when the Will was produced before him, he read over the contents thereof to Lalman and after understanding the contents thereof and admitting the same to be correct, Lalman affixed his thumb impression thereon and the witnesses affixed their signatures/thumb mark. He proved certified copy of the said Will to be Ex.DW5/A. Nothing could be elicited in the statement of DW5 so as to disbelieve him in this regard.
31. Now the question is that whether in the facts and circumstances of the present case, the statement of DW5 Jagmal Singh, Sub - Registrar, who had registered the Will, can be considered as the statement of Attesting Witness or not.
32. In Ved Mitra Verma's case (supra), both the attesting witnesses of the Will had died. Sub - Registrar, who had registered the Will was examined on commission. The Registrar set out the circumstances in which the attesting witnesses as well as the testator had signed on the document. High Court recorded satisfaction that execution of the Will was proved on the basis of evidence of the sub-Registrar. Hon'ble Supreme Court held that satisfaction recorded by the High Court did not suffer from any apparent infirmity or fundamental error requiring any correction.
33. In Bhim Sain Vs. Kaushalya Devi alias Prem Lata and others, 2009(4) R.C.R. (Civil) 48. attesting witnesses were dead. It was held that Will Page No.13 out of 16 pages 13 of 16 ::: Downloaded on - 20-04-2024 10:24:07 ::: Neutral Citation No:=2024:PHHC:052202 RSA No.2508 of 1991 (O&M) 2024:PHHC:052202 may be proved by examining the witnesses, who were able to prove the handwriting of the executant. In that case before this Court, signature of one of the attesting witness was identified by Sub-Registrar, who had registered the Will. It was held that Will was validly proved.
34. In Ram Saran Vs. Deep Kumar and others, 2007(1) R.C.R. (Civil) 618, one of the attesting witnesses did not come forward to depose in support of execution of Will. It was held that it was it was of no significance and that sub- Registrar examined as a witness who testified that parties had signed/ thumb marked the Will in his presence and that contents thereof were read over before him before doing so, it can conclusively be held that Will was valid one and that Sub-Registrar could be taken as an attesting witness.
35. In Lila Dhar Vs. Smt. Badho, 1993(2) HLR 662, it was observed by this Court as under:-
17. In order to establish the validity of a will, it has ,no doubt to be proved that it was attested by at least two witnesses, but it must, at the same time also be observed that it is not the intention of the law that an attesting witness be permitted to hold the propounder of a Will to ransom, as it were, by treating his mere denial of attestation of the Will, by itself, as negation of due execution of the Will. Where the attesting witness or some of them prove hostile or unreliable, the Court is not powerless to declare in favour of the Will and if from the other evidence on record and the circumstances taken as a whole, it is in a position to hold the Will was duly executed and attested, it will pronounce in favour of its validity. If any judgment is required on the point, a reference can be had to Gurdev Singh and another v. Smt. Shanti and others, 1988, S.L.J. 885.
36. In the facts and circumstances of the present case, when one of the attesting witness has died, and the other attesting witness has apparently colluded with the opposite party and could not be produced despite all possible efforts made by the beneficiary, including the efforts made through the Court so as to Page No.14 out of 16 pages 14 of 16 ::: Downloaded on - 20-04-2024 10:24:07 ::: Neutral Citation No:=2024:PHHC:052202 RSA No.2508 of 1991 (O&M) 2024:PHHC:052202 procure his presence, it is held that statement of Sub-Registrar i.e., DW5 - Jagmal Singh can be taken to be that of the attesting witness as he has fulfilled all the statutory requirements, so as to prove due execution of the Will.
37. Learned counsel for the appellants has referred to Dalip Singh and others Vs. Devi Dass, 2005(1) CLJ (H.P.) 37 to contend that when one of the attesting witness, who was admittedly alive but not examined, the Will is not proved to have been validly executed. It was also held that in the circumstances, the sub-Registrar who registered the Will, could not be substituted as attesting witness.
However, the perusal of the facts of the cited authority would reveal that in that case, the signature of the Registrar did not appear as having attested the Will in question nor he had stated that Testator had signed or affixed his mark to the Will in his presence. It was in these circumstances that statement of the Sub-Registrar was held to be not a substitute for attesting witness.
38. In Robert D'Mello's case (supra) relied by counsel for the appellant, the execution of the Will was denied by one of the attesting witness; whereas other attesting witness was not called at all to depose though available and it was in these circumstances that execution of the Will was held to be not proved on evidence of the Sub-Registrar and Scribe.
39. In Dilbagh Singh and others Vs. Jarnail Singh and others, Law Finder Doc Id #1414018, none of the attesting witnesses of the Will was examined to prove the execution. It was not claimed by the defendants that none of the attesting witnesses were alive. It was in these circumstances that statement of the Sub-Registrar was not relied upon to prove the Will.
40. None of the afore-said authorities are applicable to the facts of the Page No.15 out of 16 pages 15 of 16 ::: Downloaded on - 20-04-2024 10:24:07 ::: Neutral Citation No:=2024:PHHC:052202 RSA No.2508 of 1991 (O&M) 2024:PHHC:052202 present case, as it has been found that one of the attesting witness has died, and the other attesting witness has apparently colluded with the opposite party and could not be produced despite all possible efforts made by the beneficiary, including the efforts made through the Court so as to procure his presence and therefore, statement of Sub-Registrar i.e., DW5 - Jagmal Singh can be taken to be that of the attesting witness as he has fulfilled all the statutory requirements, so as to prove due execution of the Will.
41. On account of entire discussion as above, it is held that Courts below did not commit any error in holding that the Will in question was duly proved. Suit filed by the plaintiffs has been rightly dismissed. The findings of the Courts below are upheld.
Holding the present appeal to be devoid of any merit, the same is hereby dismissed.
April 16, 2024 ( DEEPAK GUPTA )
renu JUDGE
Whether Speaking/reasoned Yes/No
Whether Reportable Yes/No
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