RAMESHWAR Vs. NAND KAUR ETC

JUDGEMENT

(1.) This Second Appeal arises out of a suit filed by Smt. Nand Kaur, respondent No. 1, for a declaration that she and respondent No. 2, Smt. Badama were the owners in possession of the land in dispute and in the alternative, for possession claiming themselves to be the lawful heirs of Bakshi, the previous owner, who died on July 30, 1976. It was further pleaded that the mutation of the estate of the deceased sanctioned in the name of the appellant on the basis of the will was liable to be set aside as no valid will had been executed in his favour. The suit was contested by the appellant who denied the relationship of the respondents with the deceased, Bakshi and claimed ownership of the suit property under the said will which according to him had been validly executed by the deceased in his favour. The trial Court after recording evidence of the parties rejected the will Exhibit P-1, set up by the defendants and decreed the suit. The judgment of the trial Court was confirmed on appeal by the learned Additional District Judge, Bhiwani, vide order dated February 3, 1981. Still dissatisfied, Rameshwar defendant has come up in this second appeal.

(2.) The main controversy between the parties centres round the execution and validity of the Will, Exhibit D-1, alleged to have been executed by Bakshi on May 24, 1973. The will is a registered will. Its execution by the testator was supported by the petition writ D.W.2, Manohar Lal, writer of the will and its two attesting witnesses, D.W.3 Sita Ram and D.W.4 Lehri. None of the two Courts below has found any infirmity in their statements who were absolutely independent witnesses and had fully supported the execution of the will. Inspite of that, the will was held to be not proved and invalid on certain grounds none of which has any substance.

(3.) The first ground given was that the provisions of Section 63 of the Succession Act were not complied with in as much as none of the three witnesses had stated that the will was thumb marked by Bakshi in the presence of the witnesses and they put their signatures on the will in the presence of the testator. Petition Writer D.W.2 Manohar Lal stated that the scribed the will at the instance of Bakshi which was read over to him and he thumb marked it admitting it to be correct. Then he got it attested by the two witnesses. Similarly D.W.3 Sita Ram and D.W.4 Lehri, the two attesting witnesses stated that the will was got written by Bakshi in their presence. The testator thumb marked it after admitting it to be correct and they put their signatures thereon as attesting witnesses. From their statements it is apparent that when the will was prepared and signed by the testator and the attesting witnesses all were present and all of them put their thumb impression and signatures at one and the same time. From these circumstances, the conclusion is irresistible that the testator had put his thumb impression on the will in the presence of the witnesses and they had attested the will in his presence. For compliance of Section 63 of the Succession Act, it is not necessary that the witnesses and the scribe of the will must state that the testator had signed the will in the presence of the witnesses who had attested it in his presence. An inference from the attending circumstances to this effect can be legitimately drawn by the Court, as held in Naresh Charan Dass Gupta v. Paresh Charan Dass Gupta and another, 1955 AIR(SC) 363. In that case, the High Court was of the opinion that as the execution and attestation took place at one sitting at the residence of P.W.1 where the testator and the witnesses had assembled by appointment, all of them must have been present until the matter was finished, and as the witnesses were not cross-examined on the question of attestation, it could properly be inferred that there was due attestation. This finding of the High Court was upheld by the Supreme Court. In the present case it is fully established that when the will was prepared by the petition writer, both the witnesses and the testator were present there and from there all of them went to the Sub Registrar and got the will registered. Against, in this case no question was put regarding the attestation of the will. Both the Courts below, therefore, erred in law in holding that the execution and attestation of the will had not been proved to have been done according to the provisions of Section 63 of the Indian Succession Act.