Jiwan Dass (Since Deceased) ... vs Bhola Nath & Others
2011 Latest Caselaw 90 Del

14
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                     Judgment Delivered on: 7th January, 2011

+                  RSA No.200-205/2006

Jiwan Dass (since deceased)
Through LRs
                                                ...........Appellant
                   Through:    Mr.V.B.Andley, Sr. Adv. with
                               Mr.Rajinder Mathur, Mr.Priyank
                               Sharma and Mr.Krushna B.Singh,
                               Advocates
                   Versus

Bhola Nath & Others                      ..........Respondents
              Through:         Mr.S.N.Kumar,     Sr. Adv.         with
                               Mr.K.B.Soni, Advocate

       CORAM:
       HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?

     3. Whether the judgment should be reported in the Digest?


INDERMEET KAUR, J. (ORAL)

1. This appeal has impugned the judgment and decree dated

23.04.2005 which had endorsed the finding of the Trial Judge in

the judgment dated 29.05.1986 whereby the two suits filed by the

plaintiff Jiwan Dass seeking permanent injunction, partition,

rendition of accounts and possession had been dismissed. The

plaintiff had filed two suits, the first suit was for permanent

injunction, partition and rendition of accounts; the second suit was

for possession. Both suits had been consolidated. Vide judgment

and decree dated 29.5.1986 they were dismissed which judgment

was endorsed vide judgment dated 23.04.2005.

2. The plaintiff Jiwan Dass and the defendant Bhola Nath were

two brothers and sons of Rangi Lal. Rangi Lal was having a house

at Gali Mahavir, Teliwara, Delhi. Allegation was that he sold that

house and in lieu of the earnest money which he had received, he

purchased house House No.6144 to 6146, Kucha Shiv Mandir, Gali

Batashan, Khari Baoli, Delhi. This property was purchased and

registered in the name of his wife Tara Devi. Contention of the

plaintiff was that the earlier property, i.e. the house at Teliwara

was an ancestral house and since the present property, i.e. the

property at Kucha Shiv Mandir, Gali Batashan, Khari Baoli, Delhi

had been purchased out of the sale proceeds of the sale of the

ancestral house at Teliwara, the subsequent property was also

ancestral property and not self acquired property. Tara Devi died

on 20.07.1977. Case of the plaintiff was that both the plaintiff and

the defendant, i.e. Jiwan Dass and Bhola Nath had become equally

entitled to equal shares in the suit property.

3. The defendant contested the suit. Submission was that suit

property in the name of Tara Devi was herself acquired property

from the earnings which she had made from the business of papad

badi. Further, Tara Devi had bequeathed the suit property in

favour of the defendant, i.e. her son Bhola Nath in terms of her will

dated 8.12.1973.

4. The Trial Judge framed eight issues. Thereafter, an

additional issue was also framed. Evidence was led by the

respective parties. Court relied upon the will dated 8.12.1973 Ex.

DW3/1 set up by the defendant and in terms of the said will held

that the suit property had been bequeathed to the defendant, the

testator had legal right to bequeath the property; there was no

impediment; suit of the plaintiff was dismissed.

5. This judgment was upheld by the First Appellate Court.

6. On behalf of the appellant, it has been urged that the will had

not been proved in accordance with law and thus going to the root

of controversy in dispute it has raised a substantial question of law.

Attention has been drawn to provisions of Section 63 of the Indian

Succession Act, 1925 as also Section 68 of the Indian Evidence Act,

1872. It is pointed out that the Supreme Court has time and again

reiterated the principles for the proof of a will; it is not an empty

formality; all the necessary ingredients of the proof of the will have

to be adhered to, in the absence of which this document cannot be

read in evidence. Reliance has been placed upon the judgment of

the Supreme Court in (2009) 4 SCC 780 Yumnam Ongbi Tampha

Ibema Devi Vs. Yumnam Joykumar Sigh and Others. Reliance has

also been placed upon (2006) 13 SCC 449 B.Venkatamuni Vs.

C.J.Ayodhya Ram Singh and Others as also the judgment of the

Bombay High Court reported in AIR (36) 1949 Bombay 266

Vishnu Ramkrishna Vs. Nathu Vithal to substantiate this

submission. Attention has been drawn to the version of DW-4 Jagan

Nath who was the attesting witness; it is pointed out that this

version of DW-4 is lacking all the essential requirements for the

proof of a will; DW4 witness has nowhere deposed that the other

attesting witness had also signed the will in his presence which is a

mandatory requirement. It is further submitted that this property

was an ancestral property and could not have been the subject

matter of a bequeath.

8. Arguments have been countered by the learned counsel for

the respondent. It is pointed out that this Court is sitting in second

appeal and unless there is a clear perversity, its hands are tied and

it cannot interfere in fact findings.

9. Perusal of the record shows that the impugned judgment had

dismissed the suit after appreciating the evidence which had been

led before the Trial Court which included the two witnesses

examined on behalf of the plaintiff and three witnesses examined

on behalf of the defendant. Court returned a categorical finding

that property at Teliwara had been purchased by the Rangi Lal out

of his own funds; it was a self acquired property; testimony of PW-2

had been adverted to who had in fact admitted that he had no

proof to show that the house at Teliwra had been purchased out of

the funds of their grandfather. Rangi Lal was, therefore, well

within his rights to dispose of the Teliwara property. His

subsequent purchase of the property in the name of his wife Tara

Devi was also a rightful purchase. These fact findings by the two

Courts below cannot be disturbed by the second Appellate Court.

No perversity has been pointed out in the findings returned by the

two fact findings Court below. The will of Tara Devi was exhibited

as Ex. DW1/3. There were two attesting witnesses to the said will.

It was scribed by Atal Bihari, Ranjeet Singh, DW-3 had proved a

certified copy of the will. The attesting witness to the will was DW-

4 Jagan Nath. The vehement argument of the counsel for the

appellant is largely based on this version. It is his submission that

the necessary ingredients of the proof of the will had not been

adhered to.

10. Version of DW-4, however, speaks otherwise. His entire

testimony has to be read which includes not only his examination-

in-chief but also his cross-examination. He was the son-in-law of

the deceased Tara Devi. He had on oath deposed that Tara Devi

had executed the will; certified copy is Ex.DW3/1; will had been

read over to Tara Devi by Atal Bihari; she was in her full senses

when she executed the said will; he will bore his signatures as an

attesting witness; Tara Devi and himself (DW-4) had been called to

the room of the scribe Atal Bihari; three persons were present at

the time of execution of the will i.e., DW-4, (herself) Tara Devi (his

mother-in-law) and his sadu. He had signed the will as an

attesting witness.

11. It is this testimony which has to be appreciated to hold as to

whether the essential requirements of Section 63 of the Indian

Succession Act and Section 68 of the Indian Evidence Act have

been fulfilled. Over a co-joint reading of these two provisions of

law establishes that one attesting witness to the document, i.e. to a

will is sufficient for the proof of a will. The essential requirements

culled out time and again for the due execution of the will

necessarily include:-

(1) the testator should sign or affix his mark to the will;

(2) the signature or the mark of the testator should be so placed that it should appear that it was intended thereby to give effect to the writing as a will;

      (3)     the will should be attested by two or more
              witnesses, and
      (4)     each of the said witnesses must have seen the

testator signing or affixing his mark to the will and each of them should sign the will in the presence of the testator.

12. These essentials are no doubt not an empty formality. The

attesting witness signs the document for testifying to the

signatures of the executant; it is not necessary that more than one

witness should be present at the same time; no particular form of

attestation is necessary. The requirement is that each of the

attesting witness should speak not only about the testator's

signature or affixing his mark to the will but also that each of the

attesting witnesses had signed the will in the presence of the

testator.

13. This requirement has been adhered to. DW-4 was sole

attesting witness who had been examined; his testimony as afore-

noted has fulfilled the requirements of the proof of a valid will. It

is not necessary that each of the attesting witnesses should be

known to one another and both should be present simultaneously.

The judgments relied upon by learned counsel for the appellant do

not in any manner advance his case. They have enunciated the law

with regard to the proof of a will which has to be adjudged and

appreciated in the light of the evidence which is led before the

concerned court. Testimony of DW-4 has fulfilled this requirement.

14. The arguments urged before this Court do not raise any

substantial question of law. There is no merit in the appeal.

15. The appeal is dismissed in limine.

INDERMEET KAUR, J.

JANUARY 07, 2011 vg