SAMPURAN SINGH Vs. KARTAR SINGH

JUDGEMENT

(1.) THE plaintiff-appellant has filed the instant appeal under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging concurrent findings of facts recorded by both the Courts below holding that the plaintiff-appellant alongwith others has failed to prove due execution of the will dated 10.9.1994 allegedly executed by their father Arjun Singh. Both the Courts below have discarded the statement of Hukam Singh who was one of the attesting witness because Hukam Singh was produced only at the stage when the Civil Judge was considering the application filed under Order XXXIX Rules 1 and 2 of the Code. He was produced as a Court witness on 25.11.1995 to verify the will. The aforementioned statement made by attesting witness Hukam Singh has not been found to satisfy the requirement of law because after framing of issues, Hukam Singh was never produced at the trial of the suit. The statement made by Hukam Singh was not subjected to any cross-examination to pass through the test of veracity. The other attesting witness was one Angrej Singh son of Chuhar Singh. He was also not summoned at the trial to depose with regard to execution of the will dated 10.9.1994 (Ex. P-7). These facts are sufficient to conclude that the will has not been proved in accordance with the provisions of Section 63(c) of the Indian Succession Act, 1925 (for brevity, 'the Succession Act') read with Section 68 of the Indian Evidence Act, 1872 (for brevity, 'the Evidence Act'). The aforementioned provisions came up for consideration of the Supreme Court in the case of Janki Narayan Bhoir v. Narayan Namedo Kadam, 2003(3) RCR(Civil) 409 (SC) : (2003)3 SCC 91, wherein it has been held that out of the two attesting witnesses, at least one of them has to be examined before the Court and such a witness should be in a position to prove the execution of will, namely, attestation by two attesting witnesses in the manner contemplated in Section 63(c) of the Succession Act. The observations of the Supreme Court in this regard read as under :-

(2.) BOTH the Courts below have scrutinized the evidence in detail and serious doubts have been raised with regard to the signatures of testator Arjun Singh. It has also been found that the will was executed by the testator on a date close to the date of his death. The will is dated 10.9.1994 and the testator died on 23.9.1994.