Gourav and Others vs Shakuntla Chaudhary and Others

Rekha Mittal, J.—The present regular second appeal has been preferred against the judgment and decree dated 23.09.2014 passed by the Additional District Judge, Karnal, accepting the appeal preferred by the respondents/plaintiffs against the judgment and decree dated 06.06.2011 passed by the trial Court whereby the suit filed by the plaintiffs was dismissed. The plaintiffs being Class-I heirs of deceased Lachhman Dass claimed ownership with joint possession to the extent of 1/4th share in the suit land measuring 65 kanals 1 marla. The defendants set up a registered Will purported to be executed by Lachhman Dass on 13.07.1995 and registered on 01.03.1996.

The short point involved in the case is ''whether the propounders of the Will have successfully discharged their onus to prove the Will in accordance with law in the light of provisions of Sections 68 and 69 of the Indian Evidence Act, 1872 (in short ''the Act'')''.

Indisputably, the attesting witnesses of the Will and its scribe have not been examined with the plea that all of them had passed away. The widow of the scribe was examined to prove signatures of the scribe on the Will in token of his having scribed the Will and entry in the register being maintained by him. At the time of registration of the Will, the testator is purported to be identified before the registering authority by Anand Parkash, Numberdar.

Counsel for the appellants has fairly conceded, though it is a matter of record that neither the attesting witnesses of the Will were examined nor any of their family members or acquaintances were examined to prove their signatures/hand writing. It is argued that the witnesses examined by the appellants deposed that both the attesting witnesses are no more alive and their statements to this effect were not challenged during their cross examination which tantamounts to an admission on the part of the respondents/plaintiffs. It is vehemently argued that the appellants examined Ram Kumar, Naib Tehsildar, Tehsil Ismailabad, the registering authority and his statement is a sufficient compliance of the provisions of Section 69 of the Act.

Counsel has carried me through a copy of statement of Ram Kumar and pointed out that Ram Kumar, Naib Tehsildar has deposed that signatures of witness No. 2 Mulakh Ram, one of the attesting witnesses of the Will were obtained in his presence.

I have heard Counsel for the appellants and perused the records.

Section 68 of the Act deals with proof of execution of document required by law to be attested. A relevant extract from Section 68 of the Act is quoted herein-below for ready reference:-

"68. Proof of execution of document required by law to be attested.- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: 1 [Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]"

There cannot be any dispute about the settled position of law that in order to prove the Will, one of the attesting witnesses is to be examined to prove execution of the will by the testator. However, Section 69 of the Act deals with a situation where no attesting witness is found. A relevant extract from Section 69 of the Act reads thus:-

"69. Proof where no attesting witness found.- If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person."

A reading of Section 69 of the Act leaves no manner of doubt that if no such attesting witness can be found, it is enjoined upon the party liable to prove a document requires by law to be attested that attestation of one attesting witness at least is in his hand writing and that the signatures of the person executing the document is in the handwriting of that person. It further appears that attestation by one attesting witness is required to be proved by the person who is conversant with handwriting or signatures of the attestator.

The question now arises as to whether testimony of Ram Kumar, Naib Tehsildar can be said to be sufficient to comply with the requirements in law in the light of provisions of Section 69 of the Act. In the case at hand, as per plea of the appellants, the Will in question was executed by the deceased on 13.07.1995. It is not the case of the appellants that Ram Kumar, Naib Tehsildar was present at the time of execution of the Will, therefore, Ram Kumar, Naib Tehsildar was not a witness to affixing of signatures by the testator or the attesting witness on the date the Will is purported to have been executed by the deceased. Though Ram Kumar, Naib Tehsildar has stated that on March 1, 1996 when the Will was presented for registration and registered, signatures of Mulakh Raj were obtained but during his cross examination, he has admitted that he does not know the attesting witnesses of the Will dated 13.07.1995. In view of the above, I have least hesitation to conclude that statement of Ram Kumar, Naib Tehsildar, by no stretch of imagination, can be said to be sufficient to prove the Will in dispute in accordance with the provisions of Sections 69 of the Act. The learned first appellate Court has rightly held that the propounders of the Will failed to prove the Will in accordance with law. Once the Will propounded by the appellants cannot be looked into for want of proof, no fault can be found in the findings of the first appellate Court that land left behind by deceased Lachhman Dass is to be inherited by his heirs on the basis of natural succession.

No other point has been raised. For the reasons aforesaid, the appeal is dismissed in limine.