Ram Kumar vs Ramdia and Others

Hemant Gupta, J.—The defendant is in second appeal aggrieved against the judgment and decree passed by the Courts below whereby the Will dated 30.3.1998, propounded by the defendant, was found to be not executed and the suit of the plaintiff based on natural succession was decreed.

The plaintiff has sought declaration to the effect that he is owner is possession of 1/6th portion of 1/4th share of his father Hari Ram, of the land measuring 55 kanals 13. marks. The plaintiff alleged that the Will dated 30.3.1998, allegedly executed by Hari Ram in favour of the defendants is illegal, null and void and is based upon fraud and misrepresentation. In the written statement, the defendants have relied upon the said Will alleging therein that the plaintiff alongwith defendant Nos. 1, 2 & 3 have been given 1/4th share each. Hari Ram died on 7.5.1998 and mutation has been sanctioned on the basis of aforesaid Will.

Issue No. 1 was to the effect whether Hari Ram had executed a valid Will dated 30.3.1998 while in sound disposing mind. In proof of such Issue, defendants have not produced the original Will, but examined Subhash Chander, Registration Clerk as DW-1, Suraj Bhan Mittal, Document Writer as DW-2, R.C. Sharma, Advocate, attesting witness as DW-4 and defendant Ram Kumar himself appeared as his own witness as DW-6. The defendant also examined DW-3 Inder Singh, Kanungo.

The learned trial Court found that R.C. Sharma, Advocate has not deposed that the testator of the Will has put signatures in the presence of the attesting witness or that the attesting witness had put his signatures on the said Will in the presence of testator. Therefore, the statement of alleged attesting witness does not prove the execution of the Will and consequently, decreed the suit. In appeal, the learned First/Appellate Court has found that the original Will has not been produced. The statement of DW-3 Inder Singh, Kanungo, who had brought the record, is not sufficient to prove the Will dated 30.3.1998.

The statement of R.C. Sharma, Advocate, attesting witness was found to be not sufficient to prove the execution of the Will in terms of the provisions of Section 63 of the Indian Succession Act, 1925. The other attesting witnesses have not been examined. DW-1 Subhash Chander, Registration Clerk has been examined to prove the certified copy of the Will dated 30.3.1998. The appellant has not summoned the record of the mutation proceedings to show that the original Will was produced in such proceedings. Thus, it cannot be aid that loss of the original Will from the revenue record is proved, therefore, the findings recorded by the learned Courts below that the defendant-appellant has failed to prove the due execution of the Will cannot be said to be suffering from any patent illegality and irregularity which may give rise to any substantial question of law for consideration of this Court in second appeal.

Consequently, the present appeal is dismissed in limine.