DHARAM BIR SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) Order impugned before this court is the order dated 11.5.2009 vide which the application filed by the petitioner Narain Singh under Order 22 Rule 3 of the Code of Civil Procedure (hereinafter referred to as "the Code") seeking substitution as legal representative of Ancha Devi had been allowed.

(2.) Record shows that a Reference Petition under Section 18 of the Land Acquisition Act seeking enhancement of compensation was pending before the concerned court. Deceased Ancha Devi was the wife of Shanker Singh. Shanker Singh had two brothers namely Mahavir Singh and Dhrambir Singh. Dharambir Singh claims himself to the legal representative of the deceased Ancha Devi. On the other hand the petitioner Narain Singh being the grandson of Ancha Devi is also claiming the estate of Ancha Devi; he had set up his claim on the basis of a will dated 18.01.1990 purportedly executed by Ancha Devi bequeathing her property in his favour. After the death of Ancha Devi application for substitution had been filed by Narain Singh claiming to be her legal representative. Issues qua the will were framed. They read as follows:

(3.) To prove the will Narain Singh had come into witness box. He has reiterated that the will Ex.PW-2/1 dated 18.10.1990 had been left by Ancha Devi in his favour. There were two attesting witnesses one Ranjit Singh and another Shree Pal. Ranjit Singh was examined before the trial court as PW-2. He has on oath deposed that Ancha Devi had executed a will in favour Subash (@ Narain Singh); this was registered at Kashmere Gate about 12- 13 years back. The will had been thumb impressed by him. The petitioner Subhash (Narain Singh) was living with Ancha Devi. In his cross-examination he has identified his signature at point C? in Ex.PW-2/1. He had categorically deposed that the will was read over in his presence and thereafter he had signed the will; counsel for the petitioner has highlighted that part of the cross examination of PW-2 wherein he has stated that "thereafter Ancha Devi thumb marked"; contention being that Ancha Devi had thumb marked the will after the attesting witnesses which is not as per the requirement of 63(c) of the Indian Succession Act, 1925. Moreover the attesting witnesses has also not deposed about the presence of the second attesting namely Shri Pal; these are the grounds of challenge to the will.