GUJAR Vs. HARBANS SINGH

JUDGEMENT

(1.) The appellant-plaintiff filed a suit for declaration to the effect that he was the exclusive owner of the land measuring 65 Bighas 18 biswas; that Nanak Singh, who is his cousin, held 7/20th share in this holding while the plaintiff owns 13/20th share; that Nanak Singh mortgaged his share in the land, i.e. 22 Bighas 19 Biswas and 11 Biswasis with the plaintiff; and that Nanak Singh died issueless some three years back and the plaintiff being his sole heir became owner of the same. It was also alleged in the plaint that respondent-defendant has started interfering with his possession over the land and resisted the mutation of succession of Nanak Singh in his favour. Hence, this suit for declaration by the plaintiff. The claim of the plaintiff-appellant was resisted by the respondent-defendant who denied the relationship of the plaintiff with Nanak Singh. It was averred by him in the written statement that Nanak Singh, before his death, made a will in his favour on January 25, 1952; that he was entitled to succeed to Nanak Singh's estate on the basis of that will; and that he rightly resisted the mutation in the name of the appellant. The parties contested on the following issues :-

(2.) The trial Court decided issue No. 1 in favour of the plaintiff and issue No. 2 against the defendant and consequently decreed the suit. Dissatisfied by the judgment and decree of the trial Court, the respondent filed an appeal before the learned District Judge, who reversed the finding of the trial Court on issue No. 2, allowed the appeal and dismissed the plaintiff's suit. Hence this second appeal by the plaintiff.

(3.) Mr. Dalip Singh Kang, learned counsel for the plaintiff-appellant, has urged that the finding of the lower appellate Court on issue No. 2 is perverse and not based on evidence; and that the finding of the trial Court on issue No. 1 was not assailed before the lower appellate Court. Thus, the only issue which now survives for decision of this appeal is issue No. 2. The will in question (Exhibit 'D 1') is surrounded by suspicious circumstances. To prove the will, the defendant-respondent had produced Gurmukh Singh D.W. 1 (marginal witness) and Charan Singh D.W. 2 (the scribe); besides, he himself appeared in the witness-box. Admittedly, Charan Singh is not a regular petition-writer and is a clerk of an advocate practising at Rajpura. The relationship of Nanak Singh, the testator, with the respondent is not proved but is specifically found by the trial Court that the appellant is the heir of Nanak Singh deceased and is entitled to succeed to his property. In the will, no reason is given to exclude the natural heir. It is stated that three witnesses attested the will. The only witness which is produced is Gurmukh Singh who does not belong to the village. Admittedly, he belongs to another village. The other two witnesses are dead. The handwriting expert P.W. 8 produced by the plaintiff-appellant has clearly stated that the signatures of Kirpal Singh and Harbhajan Singh, the other two attesting witnesses, do not tally with their signatures on other documents. Admittedly, the respondent was a Patwari in those days and he was under suspension. No reason is given as to why the will was got written by a clerk of an advocate, who is not otherwise authorised to write any document except the one drafted by his advocate. The will is also not registered. It is in evidence that the petition papers for writing the will were brought by Nanak Singh, the testator, from Rajpura and the will was executed in the house of the respondent. All these circumstances show that the will is not genuine. It is in evidence of Charan Singh, the scribe of the will, that the will was executed in the Baithak of Harbans Singh respondent; that afterward another person Sardi also got executed a will from him (the scribe) the same day in favour of the wife of respondent Harbans Singh at his house and the same witnesses attested it. Apart from these suspicious circumstances, the requirements of Section 63 of the Succession Act, 1925 are not complied with. It reads as follows :-