GANESHI LAL Vs. ANANT RAM

JUDGEMENT

(1.) THE challenge by means of this Regular First Appeal filed under Section 96 of Code of Civil Procedure, 1908 (CPC) is to the impugned judgment of the trial Court dated 2.8.2003. By the impugned judgment, the suit of the appellant/plaintiff for partition and permanent injunction was dismissed.

(2.) THE facts of the case are that the appellant/plaintiff filed the subject suit for partition of the property bearing No.C-376, Dakshin Puri on the ground that being the son and legal heir of Sh. Khachera who owned the property, he is a co-owner of the property. The appellant/plaintiff relied upon a Will dated 22.2.1989 which was said to have been executed in his favour by the father- Sh. Khachera. The respondent No.1/defendant No.1 contested the suit by filing the written statement and by stating that the father during his lifetime had given another property bearing No.K-571, Dakshin Puri to the appellant/plaintiff and therefore had executed his Will dated 9.3.1989 bequeathing the suit property to the defendants (defendant No.2 being the other son of Sh. Khachera).

(3.) THE main issue was issue No.2 and in this regard the trial Court has arrived at a finding that the appellant/plaintiff failed to prove the Will, Ex.PW1/A (Will dated 22.2.1989) inasmuch as no attesting witness was examined. I may note that as per Section 68 of the Evidence Act, 1872 where a document is required by law to be attested, it shall not be used as evidence unless at least one attesting witness has been called for the purpose of exhibiting and proving of the document. The Will has to be attested by two attesting witnesses and therefore being a document which requires to be attested by law, it was incumbent upon the appellant/plaintiff to prove the Will dated 22.2.1989 through the attesting witnesses. No reasons have been given by the appellant/plaintiff for not summoning the witnesses to the alleged Will dated 22.2.1989 which has been marked as Ex.PW1/A. The trial Court therefore rightly arrived at a finding discarding the Will Ex.PW1/A relied upon by the appellant/plaintiff. The trial Court also held the Will, Ex.DW2/P-1 being the Will dated 9.3.1989 of Sh. Khachera as proved inasmuch as the said Will was proved by the attesting witnesses including Sh. Gopi Ram/DW2 who is the maternal uncle and equally close to both the parties. In fact, the trial Court has also noted inconsistencies in the stand of the appellant/plaintiff to hold that the appellant/plaintiff lacks credibility. The following are the findings given by the trial Court with respect to issue No.2 and with which I agree:-