LAWS(P&H)-1978-2-45

RATTI RAM Vs. HAZARI

Decided On February 07, 1978
RATTI RAM Appellant
V/S
HAZARI Respondents

JUDGEMENT

(1.) The plaintiffs have filed this second appeal as their suit for obtaining the possession of some land left by Smt. Lachhmi who died sometime in the year 1964 was dismissed by the Sub-Judge First Class, Jhajjar, and then in appeal by the Additional District Judge, Rohtak, through their respective judgments dated 6th August, 1965, and 18th July, 1967. The only point for determination in this appeal which has been decided by both the Courts below against the plaintiffs is whether the will executed by Lachhmi on 19th September, 1962, and got registered on 21st November, 1962, in favour of Hazari defendant No. 1 had been validly proved. The will was scribed by a petition writer and was got attested from three witnesses out of whom two, namely, Lila Ram and Suraj Bhan put their thumb impressions and Ganpat signed in the Urdu language. The will itself is in that language. Ganpat DW 1 and Lila Ram DW 2 were produced by Hazari DW 3 as the witnesses for proving the will. The first argument of the learned counsel for the appellants is that by virtue of the provision contained in Section 6(c) of the Indian Succession Act both the attesting witnesses examined by defendant No. 1 should have put their signatures. It was only open to the testatrix either to sign or affix her thumb impression. It may be mentioned here that the testarix had put her thumb impression on the will presumably because she was illiterate woman. The abovesaid provision may be reproduced below for facility of reference :

(2.) Another argument of the learned counsel for the appellants is that before benefit of the definition of the word "sign" given in the General Clauses Act could be obtained it had to be proved by the plaintiffs that the person who put his thumb impression was unable to write his name. There was said to be no evidence on record for proving such a thing. This kind of presumption can be easily raised that Ganpat having put his signatures, Lila Ram would also have signed the will as an attesting witness if he had known how to write his name. If there was any doubt in the mind of any of the plaintiffs on this point, a direct question to Lila Ram could have been put. If the position had been left obscure even after the cross-examination of Lila Ram, this kind of argument cannot be developed in the second appeal that Lila Ram was a literate person. Lastly, this usual argument was taken that the attesting witnesses never said that they had signed or thumb marked the will in the presence of the testatrix. All the attesting witnesses and Lachhmi were simultaneously present before the petition writer and there is nothing to show from the record that the will was not got attested in the ordinary permissible manner. If any of the plaintiffs had any doubt in this matter, positive evidence could have been brought on record for showing that under some circumstances Lachhmi had to leave the petition writer before the attesting witnesses could put their thumb impressions or signatures.

(3.) I thus agree with this concurrent finding of the Courts below that the will was validly executed. The appeal is consequently dismissed with costs.