KARTAR KAUR Vs. KEWAL SINGH

JUDGEMENT

(1.) THIS appeal has been filed against the judgement of the learned lower Appellate Court reversing that of the trial Court and consequently dismissing the suit of the appellant granting a decree for possession of land measuring 130 kanals 18 marlas.

(2.) IT is not disputed that the land in dispute was owned by Surmukh Singh, brother of Narain Singh, father of the appellant. It is also not in dispute that said Surmukh Singh died issueless. The appellant apart from being the natural heir relied on Will dated 25.2.59 while the respondents relied on a subsequent Will dated 5.1.1966 which was executed a few days before the death of said Surmukh Singh. It is not disputed that out of the two witnesses of the Will dated 5.1.1966 one was not produced while the other deposed against the same. The learned lower Appellate Court, however, relied on the testimony of the Registrar to the effect that he had read out the contents of the will to the testator when it was presented before him whence he again ascribed his thumb mark in his presence and held that this statement proved the execution of the Will as envisaged under Section 68 of the Evidence Act.

(3.) THE learned lower Appellate Court has relied upon Earnest Bento Souza v. John Francis Souza and others reported as AIR 1958 Calcutta 440, Asharfi Devi v. Tarlok Chand etc. reported as AIR 1965 Punjab 140 and 1971 Niranjan Singh etc. v. Parsa Singh alias Parsu reported as 1971 Current Law Journal 195, to hold that in certain circumstance the Sub Registrar could become an attesting witness within the meaning of Section 63(1)(c) of the Succession Act. However, learned Senior Advocate on behalf of the appellant has relied upon Benga Behera and another v. Braja Kishore Nanda and others reported as 2007 (3) Civil Court Cases 390 wherein the Hon'ble Supreme Court held as follows :-