Darbara Singh vs Hazara Singh

N.K. Kapoor, J.—This is defendant''s regular second appeal against the judgment and decree of the lower appellant court whereby the

appeal filed by them against the judgment and decree of the trial court was dismissed.

One Aya Singh who owned land subjectmatter of the present appeal died on 31.10.1975 leaving behind Hazara Singh, Darbara Singh, Ram

Singh and Sham Singh as his sons, Shrimati Baai widow of Aya Singh and three daughters, Mavi, Har Devi and another. According to the

plaintiffs, this land was ancestral property of the plaintiffs and defendants No. 1 to 5. The plaintiffs further alleged that defendants No. 1 to 3 have

illegally occupied the land claiming that Will executed by Aya Singh entities them to hold the suit land to the exclusion of others.

Defendants No. 1 to 3 put in appearance and controverted the various averments made in the plaintiff. Other defendants were proceeded ex

parte.

On the pleading of the parties, the following issues were framed :

Whether the land in dispute is ancestral and coparcenary property as alleged by the plaintiffs ? OPP.

Whether the suit has been properly valued for the purposes of the court fee and jurisdiction ? OPP.

Whether the suit is bad for nonjoinder of necessary parties ? OPD

Whether the suit is hit by the principles of resjudicata ? OPD

Whether Aya Singh executed a valid Will of the suit land on 8.1.1968 in favour of the defendants No. 1 to 3 ? OPD

Whether the suit is not maintainable in the present form ? OPD.

Relief.

The trial court held under issue No. 1 that suit land was ancestral/coparcenary property of the plaintiffs and the defendants. Issues No. 2, 3 and

4 were decided in favour of the plaintiffs. Under issue No. 5 it was held that defendants failed to prove that Aya Singh executed a valid Will in their

favour. Issue No. 6 was also decided in favour of the plaintiffs and so the suit of the plaintiffs was decreed for joint possession, the plaintiffs share

being 2/7th.

Before the appellate court, finding of the trial Court in respect of issue No. 5, with regard to the execution of the will and the determination of

shares in case the will is not proved were subjectmatter of adjudication only. Thus, the parties agreed that the suit land was ancestral/coparcenary

property and so the findings in respect of this issue were affirmed. The counsel with a view to seek reversal of the finding of the trial court on issue

No. 5 made reference to the statements of Amar Nath Chopra, Document Writer, and Major Singh, Tehsildar who was SubRegistrar at the

relevant time. Admittedly, Vika Ram and Sunder Singh, attesting witnesses of the will, were not examined by the defendants. The lower appellate

court on reappraisal of the evidence and the fact that both the attesting witnesses of the will were not examined, affirmed the finding of the trial

court in respect of issue No. 5.

However, the finding of the trial court with regard to the entitlement of each of the legal heirs was determined holding that being coparceners,

each of the male members and Aya Singh''s widow became entitled to 1/6th share in the Property in terms of Hindu Succession Act and so the

remaining 1/6th of Aya Singh would devolve upon the heirs of the deceased equally. This way, Hazara Singh plaintiff would have 9/48 shares. The

appeal was, thus, partly accepted and judgment and decree of the trial court was modified to this extent only.

The appellant has challenged the findings of the courts below in respect of issue No. 5 According to the counsel, will having been registered, the

testimony of SubRegistrar Major Singh ought to have been accepted by the courts below. Clearly, there is no compliance of section 63(c) of the

Indian Succession Act which envisages as follows:

The will shall have attested by two or more witnesses, each of whom has been the testator sign of affix his mark to the will or has been some other

person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his

signature or mark or the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not

be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.

The apex Court in Dharam Singh v. Aso and another, AIR 1990 Supreme Court 1988 has held that Registering Authority (Registrar) cannot be

deemed to be a statutory attesting witness. Admittedly, both the attesting witnesses have not been examined in support of the due execution of the

Will. Scribe and the SubRegistrar have categorically stated that they did not know the executant personally. The appeal is, thus, without any merit

and is dismissed accordingly.

No meaningful arguments have been advanced by the counsel for the crossobjectors. The shares as determined by the lower appellate court are

in consonance with the provisions of the Hindu Succession Act. The cross objections are also dismissed. The parties to bear their own costs.