GORI Vs. MUNSHI RAM

JUDGEMENT

(1.) The dispute in this second appeal relates to the property left by one Sukh Dial. Sukh Dial had a wife, Daromati, and two daughters, Bhagwati and Gauri. Each daughter had two sons. The dispute is between the sons of the two daughters and the facts giving rise to this dispute are briefly as follows. Sukh Dial died on 21-31942 and after his death his land was mutated in the name of his widow, Daromati. Daromati made a gift of the land to the sons of one daughter, Bhagwati. Daromati claimed to rely upon a will alleged to have been executed by Sukh Dial on 17-11942, i.e., a little more than two months before his death. Pohlo and Munshl, sons of Bhagwati, defendants, are in possession of the land. The plaintiffs are the second daughter of Sukh, Dial and her two sons, Agya Ram and Onkar Chand. They filed the present suit for a declaration that the will was a fictitious document and the gift by Daromati in favour of her two grandsons, Pohlo and Munshl, was Invalid and illegal. The suit was decreed by the trial Court on the finding that the will was a forged document and the widow could not make a gift or property inherited by her from her husband. On appeal the learned District Judge dismissed the plaintiffs' suit holding that the will was a genuine document.

(2.) The main question for my decision is whether the will is or is not a genuine document and was executed by Sukh Dial in the circumstances alleged by the defendants. The will was attacked on several grounds and Mr. Pandit on behalf of the plaintiffs- appellants contended that the signature upon the will was not that of Sukh Dial, the will had not been executed in accordance with the requirements of Section 63 of the Succession Act, the will offended the rule against perpetuity and, finally, Sukh Dial could not have made a will in respect of his ancestral property.

(3.) With regard to the first point the Handwriting Expert was examined and he gave his opinion that the signature was not that of Sukh Dial. The Expert compared the signature on the will with some writing which Sukh Dial had made about fifty years earlier. The learned District Judge took the view that Sukn Dial's handwrit-ing had somewhat changed after the lapse of half a century, his hand had become unsteady and infirm and therefore a comparison of the latest signature with his earlier writing could not be considered a reliable way of determining the genuineness of the will. He relifid upon the testimony of the scribe and the attesting witnesses and came to the conclusion that the will was in fact executed by Sukh Dial. The question of the execution of the will is a question purely of fact and on this point I the lower appellate Court has given a clear finding. This finding cannot be challenged in second appeal, but I have been led through the entire evidence in the case and after examining it I am satisfied that the lower appellate Court came to a correct decision on this point. The witnesses who have deposed to the execution of the will have not been shown to be interested to any degree in the defendants or to have any animus against the plaintiffs. They are natural witnesses because they live in the vicinity of Sukh Dial's house. As the learned District Judge has observed, Sukh Dial did not Want to travel a distance of five miles to go to Palampur and have the will drawn up by a regular Petition-writer. The circumstances in which the will was executed lend support to the hypothesis of its being genuine. Sukh Dial had four grandsons and he chose to prefer two of them because they had rendered greater service to them. He observed in the will that they had looked after him and his Wife. There was therefore nothing unnatural in giving the property to his wife for life and thereafter to his two grandsons by one daughter. I there-fore hold that the will was executed by Sukh Dial.