SUKHPAL KAUR Vs. GURJANT SINGH AND OTHERS

JUDGEMENT

(1.) - CM Nos.6231-6232-C of 2013 For the reasons stated in the applications, delay in refiling and filing of the appeal is condoned. Applications stand disposed of. Regular Second Appeal No.2287 of 2013

(2.) The appeal is by the defendant who suffered a decree declaring the Will alleged to have been executed by Chamkaur Singh on 02.01.2002 as forged and fabricated and that the mutation made on the basis of such a Will was illegal, null and void. The suit had been filed by the mother of Chamkaur Singh and the contest was entered by his widow as a sole defendant. The court framed an issue rather in artistically relating to the petitioner's entitlement to declaration and the competency to sue for injunction among other issues. The parties, however, knew that the plaintiff's declaration for the Will to be treated as forged and fabricated required an adjudication of the Will. By the very nature of things, the Will which was propounded by the widow/the defendant had to be established by calling at least one attestor to speak about the attestation in the manner required under Sec. 68 of the Indian Evidence Act. The defendant produced neither the Will in original nor did she call the witnesses or the scribe to speak about the execution. On the other hand, the defendant was relying on the evidence of the Numberdar who was alleged to have given a statement about his knowledge that the Will had been duly executed. The trial Court decreed the suit finding that the defendant did not establish what was required of her.

(3.) In appeal, an application under Order 41, Rule 27 Code of Civil Procedure was filed to produce the original Will which, according to her, had been misplaced by the Government officials at the time when the mutation of entries was sought to be obtained in her favour on the basis of the Will. The defendant was, therefore, stating that the original could not be produced at the trial stage and wanted the reception of the same. The appellate Court again confirmed the decision of the trial Court and dismissed also the application for reception of additional evidence on a reasoning that the defendant could not be permitted to fill-up a lacuna in her evidence by allowing for additional evidence to be brought at the higher court.