SURENDER KUMAR Vs. SUBHASH CHANDER AND ORS.

JUDGEMENT

(1.) The appellant plaintiff is in Regular Second Appeal against the concurrent findings of fact, whereby the suit for declaration and permanent injunction claiming the right of succession by way of natural succession, has been declined by believing the Will dated 09.01.1990 set up by the respondent defendant. Mr. Anil Kshetarpal, learned Senior Counsel assisted by Mr. Saurabh Garg, Advocate for the appellant submits, that though essential requirement of proving the Will as per Sec. 68 of Indian Evidence Act is that it is to be attested by two witnesses. However, in the instance case one of the attesting witness Shadi Ram has appeared as DW8 but his entire examination -in -chief did not conform to the provision of Sec. 63 -C of the Indian Succession Act inasmuch as that his statement does not say that the testator Mangal Ram had appended his thumb impression in his presence and on his dictation he had appended the thumb impression and, therefore, there is no compliance of aforementioned provision. In support of his contention, he has relied upon judgment rendered by Hon'ble Supreme Court in Janki Narayan Bhoir v/s. Narayan Namdeo Kadam, : 2003(1) R.C.R.(Civil) 409 : : 2003(2) SCC 91, thus there is illegality and perversity, therefore following substantial question of law arise for determination: - -

(2.) Mr. Yadav, learned counsel appearing on behalf of respondent No. 1 -defendant has very assiduously argued that the concurrent findings cannot be interfered by exercising the power under Sec. 100 of the Code of Civil Procedure. He further submits that in order to prove the Will, he has also examined DW2 who had attested the Will who stated that Mangal Ram and the witnesses after having been read over the contents of the Will appended their thumb impression in his presence. Even the scribe to the Will DW3 Prabhu Dayal Gupta who is none else but an Advocate, has also stated that testator and other witnesses had appended their signatures in his presence. Even Statement of DW2 scribe is in conformity with Sec. 63 -C of the Ibid Act. He further submits that plaintiff by playing fraud upon Mangal Ram had obtained the collusive decree in respect of land measuring 76 kanals which was later on challenged and the same was set aside. In those proceedings, Mangal Ram had stated that plaintiff Surender Kumar had played fraud upon him. The said statement was suffered in the year 1989, whereas Will was of 09.01.1990. He further submits that registered documents carrying presumption of truth and, therefore, Will cannot be said to have been suffering from suspicious circumstances, in essence, since onus to prove the Will was on the defendants which has been discharged by examining one attesting witness, scribe & Registrar from the office of Sub -Registrar and thus prays that there is no illegality and perversity and prays for dismissal of the appeal.

(3.) I have heard learned counsel for the parties and appraised the paper book as well as the record of the trial Court and judgments cited at bar.