PHULWATI Vs. JAGBIR

JUDGEMENT

(1.) THIS order will dispose of second appeal against order dated January 29, 2011 setting aside the judgment and decree passed against the appellant by trial Court on January 29, 2010 and remanding back the case to the trial Court with a direction to decide the suit afresh after complying with provisions of Order 16 Rule 10 CPC regarding examination of attesting witness of the Will i.e. Mann Singh.

(2.) BRIEF facts which are relevant for the decision of the present case are that the plaintiff -petitioner had filed a suit for declaration and permanent injunction claiming that she was in cultivating possession as co -sharer in the suit land mentioned in the heading of the plaint and that the Will dated June 3, 1993 allegedly executed by her father -in -law Mahinder Singh in favour of defendant -respondent, her brother -in -law and mutation on the basis of said Will were illegal, null and void and liable to be cancelled. She has also sought injunction against the defendant -respondent. Husband of the plaintiff -appellant pre -deceased, her father -in -law Mahinder Singh in whose estate she claimed a legal right. The trial Court examined the validity of the Will dated June 3, 1993 Ex. DW1/A. The defendant had examined DW3 Rakesh Kumar, son of the scribe Sodan Singh to show that an entry had been made in the register maintained by his father regarding the Will. Another witness DW4 Ashok Kumar, son of attesting witness Lal Chand, Lambardar was examined who identified the signatures of his father on the Will. The second attesting witness to the Will, namely, Mann Singh son of Desh Raj though alive was not examined by the defendant -respondent. Several opportunities were granted to the defendant to produce his evidence but the said attesting witness was not produced as such the evidence of the respondent was closed vide order dated August 29, 2009. The trial Court observed that Section 68 of the Evidence Act, for short 'the Act', requires that a Will is required to be proved with the testimony of at least one attesting witness, however, Section 69 of the Act provides that in cases where no attesting witness can be found, then it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the hand writing of that person. The trial Court relied on Section 47 of the Act, observing that when the Court has to form an opinion as to the person by whom document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed, would be a relevant fact. Relying upon the testimony of DW3 Rakesh Kumar, son of scribe, the Will Ex. DW1/A was held to be proved and the suit of the suit of the plaintiff was dismissed.

(3.) THE lower Appellate Court has set aside the judgment and decree dismissing the suit of the plaintiff -appellant by observing as follows: -