MOHD YUSUF Vs. BOARD OF REVENUE

JUDGEMENT

(1.) Petition in hand has been filed assailing the judgment dated 16-7-1996 passed by the Board of Revenue by which it has been held that a Scribe cannot be treated to be attesting witness unless attesting witnesses were dead or were not in a position to be examined.

(2.) It would appear from the record that one Mohd. Hanif was Bhumidhar of land in suit comprising in plot No. 201, admeasuring 2 Bighas, 7 Biswas. He had three sons who are parties to the present proceedings. Mohd. Yusuf one of the sons instituted a suit under Section 229 B of the U. P. Z. A. and L. R. Act claiming himself to be the exclusive Bhumidhar of the land in question on the basis of a Will dated 13-5-1979 which it was alleged was executed by his father Mohd. Hanif in his favour. In the written statement, the other two sons of Mohd. Hanif i.e. the contesting Opp. parties repudiated the plaint allegations and denied exclusive rights as Bhumidhar of the plaintiff over the property in question and claimed l/3rd share each to all the three brothers. The contesting parties also denied execution of Will and termed it as forged one. The trial Court by means of judgment dated 29-6- 1993 dismissed the suit on the ground that Will was not proved by attesting witnesses. In appeal, the Commissioner clinched the issue in favour of plaintiff on the ground that though attesting witnesses were not examined but the Scribe proved the Will. In consequence, the suit was decreed in appeal. This decision of the Commissioner led to filing of second appeal by defendant respondents which was allowed by the Board of Revenue recording a finding that there was no explanation in the Will for dis-inheriting the other brothers of the petitioner and further that the Will was not proved by attesting witnesses and a Scribe cannot be treated to be an attesting witnesses unless attesting witnesses were dead or were not in a position to be examined.

(3.) I have heard learned counsel for the parties and perused the materials on record. The learned counsel for the petitioner premised his submission by canvassing that the Will dated 13-5-1979 was proved by the Scribe and Board of Revenue erred in law in holding to the contrary. He further submitted that the father of the petitioner was residing in Bombay and he, with his free will and mind, executed the Will in favour of the petitioner. Per contra, learned counsel appearing for the Opp. Parties contended that the Will was not proved to have been executed by Mohd. Hanif and all the brothers succeeded the property in question.