Noorbaksh Khan vs Salim Khan

Rohit Arya, J.—This appeal u/s 100 CPC by the plaintiff is directed against the concurring judgment and decree dated 29/06/2012 passed in civil appeal No. 14A/2011 (old No. 4A/2009) by II Additional District Judge (Fast Track Court), Mungawali, District Ashok Nagar affirming the judgment and decree passed by the trial Court dated 04/05/2009 in civil suit No. 4A/2008, plaintiff''s suit for declaration and permanent injunction has been dismissed.

Facts necessary for disposal of the appeal in narrow compass are to the effect that plaintiff, defendants No. 1, 2 and 3 are real brothers and defendant No. 4 is real sister of these persons. There was another sister who had died on 16/03/1999. Plaintiff and defendants are sons and daughter of late Noor Mohammad. Noor Mohammad died on 03/03/1988 and his wife, Gulshanbi died on 15/11/1996. The suit property is an agricultural land falling in survey No. 52 area 0.408 hectare village Kasba Range Mungawali (hereinafter referred to as ''the suit land''). The suit property was purchased in the name of Noor Mohammad from one Dhyan Mohammad vide registered sale deed dated 03/10/1973. During pendency of the suit, two sons of late Noor Mohammad, namely; Bhure Khan and Ismail Khan have died. Heirs of Bhure Khan are respondents No. 2 & 3 and heirs of another son, Ismail Khan are respondents No. 4 to 8. During pendency of the first appeal, Munna Khan/respondent No. 1/defendant No. 1 has also died and his legal heirs have been further added in the memo of appeal as A, B, C, D, E, F, G, H, I, J.

As per plaint allegations, 38 years ago, late Noor Mohammad had partitioned the immovable property, a house amongst his 04 sons and they are living independently in their respective portions of the house. As during that time, the plaintiff was minor, he has been living with his parents. Plaintiff claimed to be in possession over the suit land since the time of his father and doing cultivation. According to plaintiff, adjacent to the suit land, an area of 1.045 hectare out of 4.306 hectare falling in survey No. 51 was purchased by the plaintiff by registered sale deed 05/06/1979 and marked (Batakan) division No. 51/2. Late Noor Mohammad during his life time has executed a ''will'' dated 05/02/1987 primarily in favour of his wife, Gulshanbi. The aforesaid suit land was bequeathed in her favour with further stipulation that after her death, the same shall devolve upon the plaintiff. Defendants'' in collusion with the revenue authorities got their names mutated in the revenue record as regards suit land without knowledge to Gulshanbi. The plaintiffs'' mother came to know the fact of mutation after obtaining certified copy from Patwari on 21/08/1995. Therefore, against the aforesaid mutation order, an appeal No. 86/94-95 was filed before the Sub-Divisional Officer and during pendency of the appeal, Gulshanbi died. The plaintiff''s name has been substituted as per the ''will'' executed by late Noor Mohammad. However, the appeal was dismissed by an order dated 04/02/1999 on the ground that the original ''will'' was not produced in support of claim of the plaintiff. Being aggrieved thereof, the plaintiff has filed the suit for declaration and permanent injunction.

Defendants'' No. 1 and 3 have filed written statement and denied plaint allegations. It was submitted that no partition had ever been effected by late Noor Mohammad amongst his 04 sons. All brothers are living in the same house in different portions and are jointly ploughing the suit land.

Trial Court framed as many as 09 issues. Relevant for the purpose of appeal are two issues to the effect firstly; as to whether Noor Mohammad had effected partition amongst four sons and defendants No. 1 to 3 had separated with their shares during his life time, secondly; as to whether late Noor Mohammad had executed a ''will'' date 05/02/1987. As regards issue No. 1, the trial Court recorded a finding in the affirmative to the effect that during his life time, Noor Mohammad effected partition amongst his four sons and separated them with their shares. Second issue, as regards factum of execution of the ''will'' it is found that none of the attesting witnesses have been examined as plaintiff asserted that attesting witnesses have died. However, plaintiff has examined scribe of the ''will'', Jai Babu (P.W. 2) to prove the factum of execution of the ''will''. No other evidence was led with reference to and in the context to the existence of the ''will'' by the plaintiff.

For a valid ''will'' in terms of section 63 of Succession Act (39 of 1925), it is to be attested by two witnesses. Further, to prove factum of execution of ''will'', in terms of section 68 of the Evidence Act, it is to be proved at least by one of the attesting witnesses.

Section 3 of the Transfer of Property Act defines the word "attested" and the meaning of the definition clause is well explained by the Hon''ble Apex Court reported in M. L. Abdul Jabbar Sahib Vs. M. V. Venkata Sastri and Sons and Others, to the following effect:

It is to be noticed that the word "attested", the thing to be defined, occurs as part of the definition itself. To attest is to bear witness to a fact. Briefly put, the essential conditions of valid attestation under S. 3 are: (1) two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgment of his signature; (2) with a view to attest or to bear witness to this fact each of them has signed the instrument in the presence of the executant. It is essential that the witness should have put his signature animo attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature. If a person puts his signature on the document for some other purpose, e.g., to certify that he is as scribe or an identifier or a registering officer, he is not an attesting witness.

In N. Kamalam (Dead) and Another Vs. Ayyasamy and Another, , Hon''ble Supreme Court has again elaborately and lucidly explained the scope, meaning and consequences of attestation in the context of factum of execution of ''will''. Significant requirements are found to be two fold; (1) that, the attesting witness should witness the execution which implies his presence; and (2) that, he should certify or mark for execution by subscribing his name as a witness; which implies a conscious intention to attest, i.e., attesting witness as animus to attest.

Subscribing of signatures on the ''will'' by the scribe cannot be equated with the signatures of attesting witnesses as signatures of the attesting witnesses are for a specific purpose of having witnessed the execution and for fulfillment of the statutory requirements.

The scribe appends his signatures on the ''will'' as scribe. He is not a witness to the ''will'' but a mere writer of the ''will''. The element of the animus to attest is missing, i.e., intention to attest is missing. His signatures are only for the purpose of authenticating that he was a scribe of the ''will''.

In view of the aforesaid enunciation of law holding the field, the evidence of the scribe, P.W. 2, Jai Babu in the case in hand cannot substitute for that of attesting witnesses.

Even otherwise, upon perusal of the deposition of P.W. 2, Jai Babu, in the opinion of this Court, it is worth discredit for the reasons:

(a) According to him, late Noor Mohammad by the alleged ''will'' dated 05/02/1987 had bequeathed the house by the aforesaid ''will'' in favour of his wife, Gulshanbi whereas on perusal of exhibit P/2C, the same is passed to be only in respect of the suit property, i.e., agricultural land admeasuring 0.408 hectare falling in survey survey No. 52 situated in village Kasba Range Mungawali reflects falsity or ignorance of the substance of the ''will'' in his deposition; and

(b) On criminal charges of having prepared a document fraudulently, he was prosecuted and convicted and sentenced though he states that he was acquitted by the appellate Court.

As such, deposition of P.W. 2, Jai Babu cannot be substituted to that of attesting witnesses and the ''will'' cannot be said to have been proved. His deposition leads to suspicion as regards not only factum of its execution but also contents thereof.

The trial Court and the first appellate Court have rightly recorded concurrent findings of fact answering the issue as regards factum of execution of the ''will'' in negative and dismissed the suit of the plaintiff.

The aforesaid findings have been recorded after critically evaluating the evidence on record. Findings so recorded are pure findings of fact and impregnable in nature. No question of law, much less substantial question of law arises warranting interference u/s 100 of the Code.

The appeal sans merit and is accordingly dismissed.