DEVLAL Vs. DAYAVATI

JUDGEMENT

(1.) This appeal preferred by the plaintiff was admitted on the following substantial question of law: -

(2.) The suit property was originally held by Kunwar Singh. He died issue- less leaving his wife Samari Bai and her name came to recorded in the revenue records and she was, in her lifetime, in the cultivating possession of the suit land. It is the case of the plaintiff that he served Samari Bai therefore, out of love and affection, she executed a will of her property vide Ex.P-1 on 21-5-1969 in his favour in presence of two attesting witnesses Kolaram (PW-1) & Navlu (PW-3) and therefore he has become title-holder of the suit land, but defendants No.1 & 2 got their names recorded in the revenue records leading to filing of suit for declaration of title and permanent injunction in which defendants No.1 & 2 setup the plea that no such will was ever executed by Samari Bai in favour of the plaintiff and they are the title-holders of the suit land and they are in possession. The trial Court did not accept the case of the plaintiff and dismissed the suit holding that the plaintiff has failed to prove execution and attestation of will in his favour which was affirmed by the first appellate Court in appeal preferred by the plaintiff against which this second appeal has been preferred in which substantial question of law has already been formulated and which has been set-out in the opening paragraph of this judgment.

(3.) Mr. Prakash Tiwari, learned counsel appearing for the appellant herein / plaintiff, would submit that both the Courts below have concurrently erred in holding that the plaintiff has failed to prove the due execution and attestation of will. He would further submit that mere statements of attesting witnesses Kolaram (PW-1) & Navlu (PW-3) and scribe Pancham Singh Patel (PW-5) clearly establish that the will is the last wish of deceased Samari Bai and some part of the statement of attesting witness Kolaram (PW-1) in paragraph 5 of his evidence would not wipe out the will executed by Samari Bai in favour of the plaintiff. As such, the second appeal deserves to be allowed and the suit deserves to be decreed with costs.