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
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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
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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
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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
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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
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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
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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
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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,
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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
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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
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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
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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
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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
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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
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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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