Mst. Guddi vs Narajan Singh and Others

A.S. Nehra, J.—This appeal has been filed by the Plaintiff Appellant against the judgment and decree dated 21st July, 1982 passed by the Additional District Judge, Faridkot by which the appeal of the Appellant was dismissed and judgment and decree dated 27th November, 1979 passed by the Senior Sub Judge, Faridkot was upheld.

Plaintiff had filed the suit for declaration to the effect that she (in one half share) Defendant Nos. 6 to 9 (in one half share) are the owners of the suit land. Plaintiff alleged that Makhah Singh, deceased was her father that he died 6/7 months before the filing of the suit; that he had two daughters namely the Plaintiff and Gurdial Kaur that Gurdial Kaur had pre deceased Makhan Singh, that she was succeeded by Defendant Nos. 6 to 9, who are her sons, daughter and husband that after the death of Makhan Singh, he Plaintiff along with the heirs of Gurdial Kaur, were the heirs of the estate of Makhan Singh in one half share each. It was further alleged that Defendants Nos. 2 and 3 started asserting that a will had been executed in their favour by Makhan Singh deceased. The Plaintiff denied the execution of any such will by Makhan Singh. She averred that even if any such will is proved to have been executed the suit land being ancestral qua the Plaintiff and the deceased the succession in favour of the natural heirs could not be clothed by any will.

The suit was contested by Defendant Nos. 1 to 3. Defendant No. 1 is the father of defendant Nos. 2 and 3. He is a brother of late Makhan Singh. Defendant Nos. 6 to 9 filed a Written statement admitting the allegations made in the plaint. Other defendants did not appear. Defendant Nos. 1 to 3 did not admit the relationship of the Plaintiff with Makhan Singh. They stated that Makhan Singh had two daughters namely Gurdiai Kaur deceased whose legal representatives are Defendant Nos. 5 to 9 and another daughter, whose name was not known to them. They stated that the second daughter had no issue. They asserted that Makhan Singh executed a valid will on 1st August, 1973 in favour of Defendant Nos. 2 and 3. They further pleaded that out of the suit land, Makhan Singh sold 10 Kls. in favour of Naranjan Singh Defendant No. 1 for Rs. 8,500/- by a registered sale deed dated 3rd January, 1974.

On these pleadings, the following issues were framed:

Whether the Plaintiff is the daughter of Makhan Singh deceased? OPP.

Whether Makhan Singh deceased executed a valid will in favour of Gurdev Singh and Sukhdev Singh defendants? OPD.

2-A Whether Makhan Singh deceased had sold away 10 Kls. of land vide sale deed dated 3-1-1974 for Rs.-8,500/- in favour of the defendants as alleged? If so, its effect? OPD.

Whether the land in dispute has been correctly described in the plaint? if not, to what effect? OPP.

Relief.

The suit of the Plaintiff was dismissed on. 27th. November, 1979 The trial Court decided issue No. 1 in favour of the Plaintiff and issue Nos. 2 and 2-A in favour of the defendants. Issue No. 3 was not pressed. Aggrieved by the judgment and decree of the trial Court, the Plaintiff-Appellant filed an appeal before the Additional District Judge, Faridkot which was dismissed on 21st July, 1982.

Learned Counsel for the Appellant had assailed the finding on issue No. 2, firstly, on the ground that the learned lower Court, has Held that the will was executed in favour of Defendant Nos. 2 and 3 on account of the services rendered by these defendants to Makhan Singh, testator without any averments made on this point in the written statement. The Plaintiff alleged in para 4 that the Defendant Nos. 2 and 3 were claiming that will had been executed in their favour. In the corresponding para of the written statement these defendants averred that the will was duly executed in lien of services rendered by them. Thus, there is a specific, mention of the services in the written statement. Secondly, it was argued by the learned Counsel for the Appellant that the defendants have failed to produce the requisite evidence for providing the execution of the will. As stated earlier, the will in dispute is Exhibit D. Mr. Sarin argued that out of the two attesting witnesses, only Kaka Singh D.W. 3 was produced-who supported the case of the defendants in his examination-in-chief but, in cross-examination this witness declined to give relevant replies to the various questions put to him. He has; in this connection, referred to the observations made by the learned Senior Sub Judge with regard to the demeanour of this witness. The Senior Sub Judge observed that the witness did not respond to the questions put to him by the counsel and by the Court during his cross-examination and possibly he was pretending to of hearing, though he had been responding well earlier when he was examined by the other counsel. The trial Judge observed that Kaka Singh was not a person who could be examined by the Court and was not fit to make a sensible statement, since he was posing to be too much hard of hearing. He was, therefore, discharged with the observations that due weight will be given to his testimony, in view of my these observations." It is apparent that this witness did not give any intelligible reply to some questions put to him during the course of cross-examination. The defendants were thus, confronted with a situation when he could not find any witness for the purpose of proving the execution of the will. The other witness, namely Mohan Singh Lambardar, had become unfit to make a sensible statement as reported by Dr. C.S. Shergill. The defendants produced a copy of the statement of Mohan Singh recorded in a mutation proceedings. It is Exhibit D. 9. This statement was left incomplete by the Assistant Collector with the observation that the condition of the witness had deteriorated on account of old age and the witness was not fit to make a statement and, therefore, he was given up. This witness had stated that he was a marginal witness of this will.

The question arises what is the solution to such a problem. One witness fully supported the Defendants case in examination-in-chief but chose to become hard of hearing and did not co-operate when he was being cross-examined. The other witness made a part of his statement before the Assistant Collector, but had to be given up thereafter and even during the trial of suit he could not be examined being unfit to make a sensible statement. Bishan Dass Mehta, the scribe of the document, has died. His grand son, Ashok Kumar has been produced as D.W. 4. He has identified the hand writing and signatures of the scribe on the Will Exhibit D.I. But this is not sufficient to fulfil the requirements of Section 68 of the Indian Evidence Act, which requires that 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. Thus, the law requires the calling of at least one witness. The defendants called one of them namely, Kaka Singh.

Learned Counsel for the Respondent argued that where the evidence of the attesting witnesses is doubtful or conflicting upon som material point, the court may, taking into consideration the circumstances of the case, judge from them collectively whether the requirements of the status were complied with.

Learned Counsel for the Respondent has argued that defendants have produced Gian Chand Jain D.W. 1 who was the Sub-Registrar at the relevant time. He stated that Makhan Singh, produced will Exhibited D 1 before him for registration and he was identified by Mohan Singh, Lambardar, and Kaka Singh. He said that he read over and explained the will to Makhan Singh in the presence of the witnesses and admitting the same to be correct, he affixed his thumb impression on the endorsement Exhibit D. 2. The other witness produced by the defendants in this behalf is Dewan K.S. Puri, document Expert D.W. 8. He has stated that he has compared the thumb impressions on the sale deed Exhibit D. 4 and both these thumb impressions tally with each other.

Taking all these circumstances into consideration I am of the opinion that the defendants have been able to prove the will Exhibit D. 1.

In view of the above discussion, there is no merit in this appeal and the same is dismissed with costs.