BABU SINGH Vs. RAM SAHAI

JUDGEMENT

(1.) THIS is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned lower Appellate Court holding that in the absence of attesting witnesses the Will could be proved under Section 69 of the Evidence Act, 1872 (for brevity, 'the Act') and the statement made by the scribe Krishan Chand (PW3), who knew the testator Ram Bux has been relied upon to prove the registered Will. It has further been found that in 1987 the Will was produced before the Mutation Officer and the land was mutated in favour of the plaintiff-respondent on the basis of the Will. Accordingly, it has been held that the testator Ram Bux had executed a valid Will on 25.9.1981 and on the basis of the Will the plaintiff-respondent was entitled to succeed to the property in dispute along with the other properties of Ram Bux. The plaintiff-respondent has been held to be owner of the vacant site of land over which the shop in question has been constructed by him. The family settlement, Ex. D1, dated 6.2.1985 has not been accepted because it did not see the light of the day for 10 years as it was never produced before the Mutation Officer nor it has been used when the electricity connection was to be obtained by the defendant-appellant No. 1. When the recital in the Will has been cited, which is to the effect that Surinder Kaur, Karam Kaur and Dalwinder Kaur are three daughters of the testator and Surinder Kaur was already married by spending heavy amount on her marriage and, therefore, no provision was made for any property for her in the Will. It has further been held that the signature of Ram Bux on the family settlement, Ex. D1, did not tally with the admitted standard signatures. On the basis of the aforementioned findings of fact, the family settlement Ex. D1 has been discarded by the learned lower Appellate Court.

(2.) MR . Pritam Saini, learned counsel for the defendant-appellants has argued that in the absence of proof of proper attestation of Will in accordance with Section 68 of the Evidence Act read with Section 63(c) of the Indian Succession Act, 1925, the Will cannot be considered to be proved. According to the learned counsel, a scribe cannot be considered as an attesting witness. In support of his submission, learned counsel has placed reliance on a Division Bench judgment of this Court in the case of Mohinder and others v. Nagina and others, 1992(1) RRR 464 : 1993(3) PLR 153. Learned counsel has also placed reliance on the judgment of the Supreme Court in the case of Janki Narayan Bhoir v. Narayan Namdeo Kadam, 2003(1) RCR(Civil) 409, and argued that the Will cannot be proved simply by proving that the signature on the Will was that of the testator.

(3.) HAVING heard the learned counsel, I am of the considered view that this appeal does not merit admission. It looks to be well settled that the Will can be proved, in the absence of attesting witnesses, by producing any proof that the attestation of one attesting witness at least has been in his handwriting and that the signature of testator is also in his own handwriting. The aforementioned provision has been made by Section 69 of the Act and is based on the doctrine of necessity. In the present case, one of the attesting witness (Mohan Singh Lambardar) had died and the presence of the other one (Harnek Singh) could not be procured, before the Court, without undue delay and expense. The finding further is that Harnek Singh has left for foreign country in order to avoid making of statement in the Court and he has been won over by the opposite party. The view of the Lower Appellate Court in this regard is discernible from para 11 of its judgment. The relevant part of para 11 reads as under:-