DASHODA Vs. RAMESH

JUDGEMENT

(1.) Plaintiffs No. 1 and 2 Shri Ram Singh and Smt. Dashoda alias Yashoda Devi are in second appeal before this Court. They are aggrieved by the judgment and decree dated 5.5.2003, passed by learned District Judge, Solan in Civil Appeal No. 40-S/13 of 2001, whereby the judgment and decree passed by learned Sub Judge, 1st Class, Arki, dated 29.6.2001 in Civil Suit No. 192/1 of 1994, has been affirmed and the appeal dismissed.

(2.) The challenge to the impugned judgment and decree is on the grounds, inter alia, that both Courts below have committed material illegality and irregularity while returning findings on issues No. 4 and 5 in ignorance of cogent and reliable evidence comprising oral as well as documentary available on record. Both Courts allegedly erred while recording the findings that the Will Ext. DW1/A is a valid document duly executed by Shri Geeta Ram in violation of the provisions contained under Section 63 of the Indian Succession Act. In this regard, it is pointed out that one of the witnesses Shri Shiv Ram is not an attesting witness and rather he has signed the Will in the capacity of an identifier as he was Numberdar at the relevant time. The signature of the scribe on the Will is also in the capacity of a document writer and not as an attesting witness. Since the Will was signed only by one of the attesting witnesses, therefore, it could have not been held as a legal and valid document. Also that in the absence of the pleadings and the evidence, it cannot be said that Shri Shiv Ram DW4 had animus to sign the Will in the capacity of a marginal witness. The plaintiffs, except for plaintiff No. 1 Ram Singh, had not stepped into the witness box and as such an adverse inference should have been drawn against them. The Courts below allegedly got influenced merely by the fact that the Will Ext. DW1/A was a registered document. Affidavit Ext. PW2/A of testator Shri Geeta Ram that he had cordial relations with the plaintiffs has erroneously been ignored. On the other hand, the defendants have miserably failed to prove that it is they alone who were rendering services to the deceased during his life time. This aspect of the matter has not been appreciated. The factum of the suit land being in possession of plaintiff No. 1 in the capacity of a tenant duly proved on record has also not been appreciated in its right perspective and recorded the findings to the contrary which has resulted in miscarriage of justice to the appellants-plaintiffs.

(3.) Appeal has been admitted on the following substantial questions of law: