Rajendra Singh vs Sunder Singh

Umesh Chandra Dhyani, J.—Plaintiff-respondent filed an Original Suit no. 209/2010 against the defendant-appellants for cancellation of sale deed in the court of Civil Judge (J.D.), Roorkee. The defendants contested the suit. On the basis of pleadings of the parties, the following issues were framed:-

(i) Whether the sale deed dated 15.09.2008 is liable to be cancelled on the basis of reasons assigned in the plaint?

(ii) To what relief, if any, is the plaintiff entitled?

(iii) Whether late Raghunath Singh executed a valid will in favour of plaintiff on 12.01.2000? If so, it''s effect?

Plaintiff examined himself as PW1 alongwith PW2 Surender Kumar (attesting witness of the will). Two witnesses, namely, DW1 Rajendra Singh and DW2 Ishwar Dayal were examined on behalf of the defendants. Documentary evidence was also filed by the parties.

After taking into account the oral and documentary evidence led by the parties, learned trial court held that since the will was executed by Dr. Raghunath Singh in favour of the plaintiff and, therefore, defendant no. 2 had no competence to execute the sale deed. The suit was, therefore, decreed with costs. The registration of sale deed dated 15.09.2008, which was registered in Sub Registrar, Roorkee''s office was cancelled, vide judgment and decree dated 20.7.2011.

Aggrieved against the same, a civil appeal was preferred by defendants before the lower appellate court. The lower appellate court also considered the submissions of learned counsel for the parties, perused the documents on record and finally dismissed the appeal, affirmed the judgment and decree passed by the trial court.

Still aggrieved against the same, the present second appeal is filed on behalf of the defendants-appellants, being aggrieved against the concurrent judgments of two courts below.

The following substantial questions of law were framed by this Court :

Whether the will dated 12th January, 2000 executed by Raghunath Singh has been executed and proved in accordance with Section 63 of Indian Succession Act and Section 68 of the Evidence Act ?

Whether the Court below committed an error in cancelling the sale deed dated 15th September, 2008 executed by the appellant in favour of his wife ?

In order to prove the will executed by Raghunath Singh, it was brought on record that one Shri Kamlesh Rana, Advocate, was the scribe of the will, which was written in presence of Surendra Singh, s/o Chaman Singh and Sanjeev Kumar, s/o Sadhu Ram. Surendra Singh, the attesting witness, has been examined before the trial court as PW2. PW2 stated that he knew Dr. Raghunath Singh, who was homeopathic medical officer. On 12.01.2000, as per the wishes of Dr. Raghunath Singh, one Shri Kamlesh Rana, Advocate of Roorkee wrote the will. In other words, Shri Kamlesh Rana, Advocate was the scribe of the will. After writing the will, the contents of the same were read over to the testator of the will, who appended his signatures on the same in presence of PW2 and Sanjeev Kumar. PW2 identified his signatures as well as of that testator of the will. PW2 further stated that he was called by Dr. Raghunath Singh at his residence where Sarvajeet, Ranjeet, Rajendra, Sanjev and Kamlesh Rana were already present. Dr. Raghunath Singh appended his signatures on the will in his (PW2''s) presence. Although, the scribe of the will was not examined before the trial court, but he was examined by Tehsildar in mutation proceedings, as is evident from the certified copy of the statement of Shri Kamlesh Rana (scribe of the will). The judgment rendered by Tehsildar, Roorkee given in the matter between Rajendra and others vs. Raghunath Singh in proceedings u/s 334 of Land Revenue Act is brought on record.

It was held by Hon''ble Supreme Court in Ramabai Padmakar Patil (D) through LRs. and Others Vs. Rukminibai Vishnu Vekhande and Others, , that the will is required to be proved by examining at least one attesting witness u/s 68 of the Indian Evidence Act. This is applicable to the registered as well as unregistered will. In the instant case, the will executed by Raghunath Singh was an unregistered will. Section 68 of the Indian Evidence Act says :

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:

In the instant case, as stated above, the will was executed by Raghunath Singh in presence of so many witnesses, including PW2, who deposed before the trial court as an attesting witness in proof of execution of the said will.

An attempt was made by defendant no. 2 to show that no will was executed by his father Raghunath Singh during his life time and his late father moved an application before the Nagar Palika, Roorkee that one-fourth part of the house be given to Ranjeet Singh, one-half portion of the same be given to Rajendra Singh and remaining one-fourth portion be given to Sarvajeet Singh. The house has been partitioned as per the resolution no. 414 of Nagar Palika, Roorkee. Such document has not been brought on record. Even if such document would have been brought on record, the fact remains that the said house was given to defendant Rajendra Singh in the said will (clause no. 3) dated 12.01.2000. The sale deed executed by defendant no. 2 in favour of defendant no. 1 was executed only in respect of a plot khasra no. 1132 and not in respect of house, which was already given to defendant Rajendra Singh by way of the will. Further, there is no evidence on record, as suggested by defendant no. 2, that an amicable settlement took place between the parties, whereby they were inducted into the possession of the land, in respect of which the sale deed was executed.

This Court, therefore, finds that the execution and attestation of the will in question was proved by adducing one of the attesting witnesses. There was sufficient compliance of Section 63 of the Indian Succession Act read with Section 68 of the Indian Evidence Act. Section 63 of the Indian Succession Act deals with the mode of execution of unprivileged wills and says that every testator shall execute his sale deed in accordance with the following rules:

(a) The testator shall sign or shall affix his marks to the will, or it shall be signed by some other person in his presence and by his direction.

(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.

(c) the will shall be attested to two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of 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.

Learned trial court, as also the lower appellate court, have appropriately dealt with the issues to come to a conclusion that Raghunath Singh executed a valid will on 12.01.2000 in favour of plaintiff and, solely on this basis, the sale deed executed by defendant no. 2 in favour of defendant no. 1 on 15.09.2008 is liable to be cancelled.

This Court, therefore, holds that the will dated 12.01.2000 executed by Raghunath Singh has been proved in accordance with Section 63 of the Succession Act and Section 68 of the Indian Evidence Act.

The next question which arises for consideration of this Court is - whether the court below committed an error in cancelling the sale deed dated 15.09.2008 executed by the plaintiff-appellant in favour of his wife? Both the courts below, by way of concurrent findings, appropriately dealt with this issue also. When the will was executed by Raghunath Singh in favour of the plaintiff in respect of his movable and immovable properties, except the residential house, which was given to Rajendra Singh, defendant no. 2 was not entitled to execute the sale deed in respect thereof and sell it to defendant no. 1. Two courts below therefore committed no mistake in cancelling the sale deed dated 15.09.2008 executed by the appellant in favour of his wife.

As a consequence thereof, present second appeal fails and is dismissed.