Sulochana Devi @ Munni Devi & Another vs Virendra Singh Pundir

Sharad Kumar Sharma, J

This is the defendants' second appeal, wherein, the defendants (appellants herein the second appeal) have put in challenge to the judgment and decree dated 10.06.2014, as rendered by the learned District & Sessions Judge, Tehri Garhwal in Civil Appeal No. 17 of 2011 'Smt. Sulochana Devi & Another vs. Sri Virendra Singh Pundir'. And as a consequence of the Appellate Court's judgment, the judgment and decree dated 22.07.2011, as rendered by the Civil Judge (S.D.), Tehri Garhwal in Civil Suit No. 15 of 2009 'Virendra Singh Pundir vs. Smt. Sulochana Devi & Another', whereby, the Suit filed by the plaintiff/respondent, which has been decreed has been affirmed by the First Appellate Court with the dismissal of appeal of the defendant/appellant. Thereby the decree of cancellation of the Will dated 11.06.2004 has been affirmed, concurrently by both the courts below.

The brief facts, which lead to the present controversy are that as per the plaint averments, which have been made by the plaintiff/respondent before the learned Trial Court in the Suit as instituted by him on 18.05.2009, it was to the effect that the property in question, which was the subject matter of a Suit, in fact was a property, which belonged to the predecessor of the plaintiff, i.e. his father Late Randeep Singh, who is said to have executed a registered Will dated 11.06.2004 in favour of defendants/appellants, who are real sister of plaintiff/respondent, which was got registered before the Sub-Registrar, Tehri Garhwal, and consequent to the execution of the said Will, which was a registered document the right with regards to the estates of the deceased father was shown to be vested with the defendants/appellants by virtue of the aforesaid Will.

The plaintiff/respondent herein had filed a Suit No. 15 of 2009 'Virendra Singh Pundir vs. Smt. Sulochana Devi & Another' under Section 34 of the Specific Performance Act, before the Court of Civil Judge (J.D.), Tehri Garhwal, on 18.05.2009, wherein, he has sought a decree in the nature of cancellation of the registered Will dated 11.06.2004 said to have been executed by the Late father of the defendants/appellants in their favour on 11.06.2004, by getting it registered before the Sub-Registrar, Tehri Garhwal. The said Suit was contested by the defendants (appellants herein) on the ground that the Will executed in their favour since being a registered document, it was a valid document, and it was validly conferring a title and right in their favour, coupled with the fact that as far as the plaintiff/respondent is concerned, since the plaintiff/respondent was adopted by his uncle, he would not be succeeding any rights from the Late father of the defendants/appellants in relation to any of his assets.

The Suit in question was contested and ultimately the foundation of the defendants/appellants in their written statement paper no. 20ka as filed on 22.06.2009, was with regards to the determination of the rights was based upon the registered Will, which they contend that it was executed in their favour by their Late father. It is the settled law that as per the provisions contained under Section 68 of the Indian Evidence Act in the proceedings, which are drawn under Section 34 of the Specific Relief Act seeking declaration of a registered document as to be void, it becomes incumbent upon the person questioning the execution of the Will (i.e. the document) to prove the same that it was validly executed by producing the attesting witnesses, beneficiaries of the Will in question was the defendants/appellant, who were deriving their right was on its basis. Section 68 of the Indian Evidence Act is quoted hereinbelow:

"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.]"

The learned Trial Court after considering the evidence adduced by the parties, in particular, the Will dated 11.06.2004 and after considering the rival contentions had framed the issues for determination as referred in paragraph 5 of the Trial Court's judgment, which is quoted hereunder:

"5. पक्षकारों के अभिवचनों के आधार पर निम्नलिखित वाद बिन्दु विरचित किये जाते हैं

क्या प्रतिवादीगण ने दिनांक 11.06.2004 को वादी के पिता स्व0 रणदीप सिंह की वृद्धावस्था का लाभ उठाकर फर्जी वसीयत अपने नाम से निष्पादित करवाई है यदि हां तो प्रभाव

क्या वादी किसी अन्य अनुतोष को पाने का हकदार है।"

The argument was to the effect that once the plaintiff/respondent has put a challenge to a Will, i.e. dated 11.06.2004, by instituting a Suit, which was a registered document and once he has contended that the said Will was executed fraudulently in favour of the defendants/appellants then the burden of proof in accordance with Section 103 of the Indian Evidence Act to be read herein along with Section 68 was required to be discharged by the plaintiff/respondent in order to substantiate his contention as against the Will dated 11.06.2004. Though before the Court below the plaintiff had appeared as PW1 and further in support of his contention he has also produced an oral testimony of PW3 Bachan Singh while on the other hand the defendants/appellants has appeared as DW1 and DW2 and has also produced an additional witness of DW2, i.e. of Mr. Pradeep Saklani, who had produced the registered Will dated 11.06.2004 paper no. 6ga and the family register paper no. 7ga before the Court below.

The learned Trial Court while considering the issue no. 1, it has held that the Late father of the plaintiff/respondent had met with the sad demise on 03.05.2006, after attaining an age of 90 years and in accordance with the case of the plaintiff/respondent, it was contended that his cremation rights were performed by him. The plaintiff/respondent in order to denounce the theory of execution of a registered Will dated 11.06.2004 allegedly in favour of defendants/appellants, claimed to be fraudulently executed he had contended that the defendants/appellants sisters of the plaintiff/respondent have got the same fraudulently executed for the reason that the propriety of execution of the Will cannot be accepted for the reason that the Late father had never resided together along with the sisters at any point of time in whose favour the Will was claimed to have been allegedly executed.

The learned Trial Court after considering the statements as recorded by the Courts below had held that the factum of execution of the Will dated 11.06.2004, out of which the defendants/appellants were deriving their rights over the assets of their Late father, which they claim to have been vested in their favour on the strength of the Will dated 11.06.2004, the same was not proved as per the law of evidence, wherein, Section 68 of the said Act it provides that the beneficiaries, who were claiming a right in pursuance to a Will claimed to have been registered before the Sub-Registrar in their favour, he has to produce an attesting witness of the said Will and in an event of a failure to produce the attesting witness, it cannot be said that the Will, which was claimed to have been executed in their favour was validly executed as per the mandate of law contained under Section 68 of the Indian Evidence Act, 1872.

In response to it, the learned counsel for the defendants/appellants submits that in order to prove the Will it has to be taken to be validly executed and as to be a valid document executed for which there are two reasons, which has been argued by him, for it firstly that once it is a registered document, it is bound to be treated as to have been validly executed and secondly he submits that since the Will itself was registered before the Sub-Registrar then in accordance with the provisions contained under the Registration Act to be read with the provisions of the Evidence Act, it has to be read in evidence as to be a valid document conferring a valid title in relation to a property, which was claimed to be vested to the defendants/appellants on the basis of the Will. Learned Trial court while considering its strict implications, which flows from Section 68 of the Evidence Act, which is quoted hereinabove (in paragraph 4), it contemplates that any document, which otherwise is required to be attested in accordance with the law and once it is required to be read in evidence in order to substantiate a claim based upon its valid execution, though it is always the burden which is casted upon the beneficiary of the said document to produce the said attesting witnesses if they are alive in order to prove the document and its valid execution.

It had not been the case of the defendants/appellants before the Court below that at the time when the Suit in question was under consideration before the learned Trial Court, where the propriety of the Will dated 11.06.2004, was under consideration that the attesting witnesses were not alive. Hence, in the absence of proving the said document to be validly executed beyond doubt, the learned Trial Court while deciding the issue no. 1 has held that the defendants/appellants had failed to prove to show that the Will executed in their favour was a valid document in the absence of the non-compliance of the provisions contained under Section 68 of the Act. Consequently, the plaintiff's Suit was decreed by the judgment dated 22.07.2011 based on the legal impact of Section 68 of Indian Evidence Act and failure to discharge the responsibility casted to the beneficiary of a document as provided under Section 100 of Code of Civil Procedure.

The said judgment of 22.07.2011 was put to challenge by the defendants in a Civil Appeal under Section 96 of Code of Civil Procedure being Civil Appeal No. 17 of 2011 'Smt. Sulochana & Another vs. Virendra Singh Pundir'. The Appellate Court too while considering the rival contentions and also considering the propriety of the judgment and decree, which was produced as paper no. 10C before the Court below and had also drawn a concurrent conclusion to the effect that when the Trial Court has framed the issue no. 1 pertaining to the determination of a validity of the execution of the Will dated 11.06.2004, it was the burden, which was to be discharged by the defendants/appellants the beneficiaries of the document to show that it was validly executed and since they having failed to do so in accordance with law the Appellate Court too held that the defendants had failed to prove that the document was validly executed.

The learned Appellate Court while exercising its powers under Order 41 Rule 31 of the Code of Civil Procedure has framed a question/points of determination to the effect that as to whether the Will, which was executed in favour of the defendants/appellants on 11.06.2004, was by virtue of exercising an undue advantage over the aged father, who was about 90 years of age at that time, which is claimed by the defendants/appellants at the time when he executed a Will on 11.06.2004. The Appellate Court while considering the said question as to whether the Late father of the plaintiff/respondent was taken under an undue influence by the defendants/appellants held that looking to the manner in which the Will was got executed a finding was recorded that the defendant no. 2 Sulochana Devi had rather earlier on 19.07.2003, had got executed a forged Will in her name of the father of her, in which it has not been mentioned with regards to the Will of 19.07.2003, which was claimed to have been subsequently executed on 11.06.2004 by the Late father of the defendants/appellants. The plaintiff/respondent also expressed doubt on the signature of the father as he was in semi unconscious stage.

The learned Appellate Court had contended that their production of the scribe of the Will in order to show it was a valid execution was not sufficient evidence to support a document, in accordance with the ratio as propounded by the judgment reported in AIR 2003 SC 761 'Janki Narayan Bhoir vs. Narayan Namdeo Kadam', wherein, it has been held that in order to prove a document and its valid attestation, it is also required to be proved that it was properly executed as per the clause C of Section 63 of the Succession Act and further it was necessary for the production of the attesting witness also to show and prove that it was a valid execution. As it is settled law that to prove a document, its not enough to prove that the signature appearing on a document but rather its attestation too has to be proved as per clause C of Section 63 of the Succession Act. Paragraph 6 & 11 of the aforesaid judgment is quoted hereinbelow:

"6. At the hearing the learned counsel for the respondent fairly submitted that Raikar was only the scribe and he was not the attesting witness. Even looking to the evidence of Raikar himself it is clear that he gave evidence as the scribe. There is nothing on record to indicate that he had any intention to attest the Will. The attesting witness Sinkar has not stated that the other attesting witness Wagle attested the Will in his presence. On the other hand, he has stated that he did not see Wagle present at the time of execution of the Will. Wagle, the other attesting witness, being alive ought to have been examined in order to prove the Will. Nothing is brought on record to show that any attempt was made to examine Wagle or there was any impediment in examining him. It is true that although will is required to be attested by two witnesses it could be proved by examining one of the attesting witnesses as per Sections 68, Indian Evidence Act.

Section 71 of the Evidence Act is in the nature of a safeguard to the mandatory provisions of Section 68, Evidence Act, to meet a situation where it is not possible to prove the execution of the will by calling attesting witnesses, though alive. This Section provides that if an attesting witness denies or does not recollect the execution of the will, its execution may be proved by other evidence. Aid of Section 71 can be taken only when the attesting witnesses, who have been called, deny or fail to recollect the execution of the document to prove it by other evidence. Section 71 has no application to a case where one attesting witness, who alone had been summoned, has failed to prove the execution of the will and other attesting witnesses though are available to prove the execution of the same, for the reasons best known, have not been summoned before the court. It is clear from the language of Section 71 that if an attesting witness denies or does not recollect execution of the document, its execution may be proved by other evidence. However, in a case where an attesting witness examined fails to prove the due execution of will as required under clause (c) of Section 63 of the Succession Act, it cannot be said that the Will is proved as per Section 68 of the Evidence Act. It cannot be said that if one attesting witness denies or does not recollect the execution of the document, the execution of will can be proved by other evidence dispensing with the evidence of other attesting witnesses though available to be examined to prove the execution of the will. Yet, another reason as to why other available attesting witnesses should be called when the one attesting witness examined fails to prove due execution of the Will is to avert the claim of drawing adverse inference under Section 114 illustration (g) of Evidence Act. Placing the best possible evidence, in the given circumstances, before the Court for consideration, is one of the cardinal principles of Indian Evidence Act. Section 71 is permissive and an enabling Section permitting a party to lead other evidence in certain circumstances. But Section 68 is not merely an enabling Section. It lays down the necessary requirements, which the Court has to observe before holding that a document is proved. Section 71 is meant to lend assistance and come to the rescue of a party who had done his best, but driven to a state of helplessness and impossibility cannot be let down without any other means of proving due execution by "other evidence" as well. At the same time Section 71 cannot be read so as to absolve a party of his obligation under Section 68 read with Section 63 of the Act and liberally allow him, at his will or choice to make available or not a necessary witness otherwise available and amenable to the jurisdiction of the court concerned and confer a premium upon his omission or lapse, to enable him to give a go bye to the mandate of law relating to proof of execution of a will."

Consequently, based on the aforesaid ratio by the said Court, the learned Appellate Court too affirmed the judgment of the learned Trial Court and consequently while holding that in view of the ratio, which has been laid by the Hon'ble Apex court in the judgment of 'N. Kamalam (dead) and Another vs. Ayyaswamy and Another' reported in AIR (2001) SC 2802 a reference of it has been made in the judgment impugned of the Appellate Court pertaining to the contents of the observations made in paragraph 26 and 32, which are quoted hereunder:

"26. The effect of subscribing a signature on the part of the scribe cannot in our view be identified to be of same status as that of the attesting witnesses. The signature of the attesting witness as noticed above on a document, required attestation (admittedly in the case of a will the same is required), is a requirement of the statute, thus cannot be equated with that of the scribe. The full Bench judgment of the Madras High Court in H. Venkata Sastri and Sons and others v. Rahilna Bi and others (AIR 1962 Madras 111) wherein Ramachandra Iyer, J. speaking for the full bench in his inimitable style and upon reliance on Lord Cambells observation in Burdett v. Spilsbury has the following to state pertaining to the meaning to be attributed to the word attestation:

The definition of the term attested which is almost identical with that contained in S.63 (c) of the Indian Succession Act, has been the result of an amendment introduced by Act 27 of 1926. Prior to that amendment it was held by this court that the word attested was used only in the narrow sense of the attesting witness being present at the time of execution. In Shamu Pattar v. Abdul Kadir ILR 35 Mad 607 (PC), the Privy Council accepted the view of this court that attestation of a mortgage deed must be made by the witnesses signing his name after seeing the actual execution of the deed and that a mere acknowledgement of his signature by the executant to the attesting witness would not be sufficient. The amending Act 27 of 1926 modified the definition of the term in the Transfer of property Act so as to make a person who merely obtains an acknowledgment of execution and affixed his signature to the document as a witness, an attestor. It will be noticed that although S.3 purports to define the word attested it has not really done so. The effect of the definition is only to give an extended meaning of the term for the purpose of the Act; the word attest is used as a part of the definition itself. It is, therefore, necessary first to ascertain the meaning of the word attest independent of the statute and adopt it in the light of the extended or qualified meaning given therein. The word attest means, according to the Shorter Oxford Dictionary to bear witness to, to affirm the truth or genuineness of, testify, certify. In Burdet v. Spilsbury, (1842-43) 10 Cl and F 340, Lord Cambell observed at page 417, What is the meaning of an attesting witness to a deed? Why, it is a witness who has seen the deed executed, and who signs it as a witness.

The Lord Chancellor stated, the party who sees the will executed is in fact a witness to it; if he subscribes as a witness, he is then an attesting witness.

The ordinary meaning of the word would show that an attesting witness should be present and see the document signed by the executant, as he could then alone vouch for the execution of the document. In other words, the attesting witness must see the execution and sign.

Further, attestation being an act of a witness, i.e., to testify to the genuineness of the signature of the executant, it is obvious that he should have the necessary intention to vouch it. The ordinary meaning of the word is thus in conformity with the definition thereof under the Transfer of Property Act before it was amended by Act 27 of 1926. Before that amendment, admission of execution by the executant to a witness who thereupon puts his signature cannot make him an attestor properly so called, as he not being present at the execution, cannot bear witness to it; a mere mental satisfaction that the deed was executed cannot mean that he bore witness to execution.

(4) After the amendment of S.3 by Act 27 of 1926, a person can be said to have validly attested an instrument, if he has actually seen the executant sign, and in a case where he had not personally witnessed execution, if he has received from the executant a personal, acknowledgment of his signature, mark etc. Thus of the two significant requirements of the term attest, namely (1) that the attestor should witness the execution, which implies his presence, then, and (2) that he should certify or vouch for the execution by subscribing his name as a witness; which implies a consciousness and an intention to attest, the Amending Act modified only the first; the result is that a person can be an attesting witness, even if he had not witnessed the actual execution, by merely receiving personal acknowledgment from the executant of having executed the document and putting his signature. But the amendment did not affect in any way the necessity for the latter requirement, namely, certifying execution which implies that the attesting witness had the animus to attest.

While it is true that Arunachalam, in the facts of the matter under consideration did write the will and has also signed it but it is of utmost requirement that the document ought to be signed by the witnesses in order to have the statutory requirement fulfilled. Arunachalam has signed the document as a scribe not as a witness, if there were no signatures available as witness, probably we would have to specifically deal with such a situation and consider that aspect of the matter but presently in the facts situation of the matter under consideration, we have the advantage of two attesting witnesses, none of whom have been examined and the factum of their non availability also does not satisfactorily been proved. The evidence of one person namely Arunachalam, cannot displace the requirement of the statute when Arunachalam himself has specifically identified himself as Writer and not as a witness though in his evidence, he tried to improve the situation, but this improvement however, cannot said to be accepted: The Will thus fails to have its full impact and its effect stands out to be nonest."

That even as per the finding, which has been recorded by the First Appellate Court, which has been informed that the First Appellate Court by the order dated 26.04.2013 had sent the Will in question for the examination of the thumb impression, which was appearing in the document said to have been executed by the Late father Randeep Singh as per the report submitted, which was paper no. 28C1 and 48C1 respectively before the Court below. It was argued that as per the finger print bureau report the thumb impression though were found to be similar to the thumb impression as per in other documents, therefore, it was argued that there was no dispute about the execution of the disputed Will by Randeep Singh in favour of the defendants/appellants. The argument, which was extended in support of the contention of the defendants/appellants before the First Appellate Court in view of the statement of DW2, i.e. Mr. Pradeep Saklani, who was the scribe of the Will that in itself was not be sufficient to prove a valid execution in the absence of the compliance of the provisions contained under Section 68 of the Indian Evidence Act.

It has been held that as per Section 71 of the Evidence Act, which is in the nature of safeguard to the effect that the provisions contained under Section 68 of the Evidence Act is necessary and a mandatory provision, which is required to meet a situation where the beneficiary of the document is required to prove that the Will was validly executed and there was no sense of doubt prevailing in its valid execution. Consequently, the Appellate Court too vide its judgment dated 10.06.2014 had affirmed the judgment of the Trial Court and held while dismissing the Appeal that the defendants had failed to prove its valid execution and consequently concurrently both the courts below held that the Will of 11.06.2004 was not proved to be a valid document having being validly executed by the testator in view of the non-compliance of the provisions contained under Section 68 of the Evidence Act. Hence, the Appeal too was dismissed and affirmed the Trial Court's decree dated 22.07.2011.

This Court while considering the admission of the Appeal where the challenge was given to the Trial Courts as well as Appellate Court's judgment, had framed the following substantial question of law on 05.09.2014 to the effect that, one as to whether the courts below while rendering the judgment impugned dated 10.06.2014 and 22.07.2011 had erred at law by completely ignoring the fact that the Will was duly proved before the Tehsildar on account of the fact that the ascribe of the Will has also proved its valid execution before the Trial Court. The second substantial question of law, which was, framed was as to whether the Appellate Court committed manifest error of law by ignoring the evidence collected by its own order for substantiating the case of execution of the Will.

This Court is of the view that when the statute itself contemplates a process for proving of a valid execution of a testament whenever its is put to challenge then it is the burden, which has been casted upon the beneficiary of the said document to have proved the same by producing attesting witness in accordance with Section 68 of the Indian Evidence Act, 1872. The proof of the said document as adduced before the Tehsildar by producing the scribe of the Will at the time when the mutation was sought by the defendants/appellants based on the said Will dated 11.06.2004, that will not suffice to be an appropriate evidence to be taken into consideration because the Tehsildar at the time when he was considering the propriety of the Will he was exercising his powers in a summary proceedings where the defendants/appellants had sought their names to be registered in the revenue records to show themselves to be owner under the strength of the Will dated 11.06.2004. The said substantial question of law will not come into consideration because any finding, which has been recorded with regards to the genuineness of the Will by the Tehsildar could be read only for the purposes of proceeding for recording the name, which has been drawn under Section 33/34 of the Land Revenue Act, 1901 it has to be read with for the purposes of the Land Revenue Act or only in accordance with the provision contained under the Municipality Act and any report or finding, which has been recorded by the authorities, who are entitled to mutate the beneficiary of an immovable property in pursuance to the document on which the reliance has been placed by him or her. The same cannot be taken as to be the substitute to the provisions contained under Section 68 of the Evidence Act, which is the principle provision, which deals, it as to be the manner in which a document requiring attestation it is required to be proved as provided before the Court of law.

Hence, this Court is of the view that the said question as framed by the Second Appellate Court while admitting the Appeal do not call for any consideration or reply by this Court for the reason that consequential mutation made in pursuance to the report submitted by the Tehsildar based on the Will dated 11.06.2004 was only for the purposes of imposing a liability as when the person who will be responsible to pay the land revenue or taxes payable as against the property in question to the State authorities. The report of Tehsildar submitted in the summary proceedings for mutation cannot be extracted to decide regular Suit where Will is under challenge.

Learned counsel for the appellant has placed reliance on a judgment 'Ujagar Singh vs. Chanan Singh & Others' reported in AIR 1986 Punjab and Haryana 230, wherein, while considering the impact of Section 63 of the Evidence Act in order to prove a valid execution of the Will the Coordinate Bench of the Punjab and Haryana High Court has held that the production of scribe of the Will would suffice the purpose, to prove the valid execution of a document. The manner in which the judgment was sought to be relied by the defendants/appellants will not be applicable in the instant case for the reason that if the reason, which has been assigned by the Court in paragraph 5 of the said judgment, which has been relied by the defendants/appellants counsel and which is quoted hereunder:

"5. After hearing the learned counsel for the parties and going through the case law cited at the Bar, I am of the considered view that there is no merit in this appeal. The will is a most genuine document. The plaintiff had already been given land by Kaka Singh during his lifetime and, therefore, it could not be successfully argued that the will was surrounded by any suspicious circumstances. Moreover, this fact is mentioned in the will itself. As regards the execution of the will, Mohinder Singh attesting witness has come into the witness box and has deposed that the will was signed by him and the executed of the will Mohinder singh attesting witness has come into the witness box and has deposed that the will was signed by him and the execution signed in the presence. To the same effect is the statement of Dhanraj Singh (D.W. 1) who was the scribe of the will. It was held in M. Venkatasubbaiah's case (supra) that the proof contemplated in S. 68 can be furnished by the scribe of the document who could speak to the execution of it and it is not essential that it should be proved only by at least one of the attesting witnesses. Thus, it will be a question of fact in each case to be determined as to under what circumstances and in what manner the scribe acted and attested the will or not. The mere fact that will was scribed by Dhanraj Singh did not mean that he could not prove the will as an attesting witness. The authorities relied upon by the learned counsel for the appellant are not applicable to the facts of the present case."

There is a distinction in the present case as, in the said case one of the witnesses of the Will was produced before the Court below to prove its valid execution, along with the production of the ascribe of the Will, which was in addition to the production of attesting witness of the Will, which was produced before the Court below. Even otherwise also, the Coordinate Bench of Punjab and Haryana High Court has held that the modalities of proving of a Will in the light of the provisions contained in the Evidence Act by producing an attesting witness or by way of producing scribe of the Will would depend upon the circumstances of each and every case, which has to be independently dealt with according to the circumstances of each case, which was prevailing in it. Meaning thereby establishment of a ratio of the Punjab and Haryana High Court, was not a judgment in rem laying a ratio of law, but rather it was dealing with the circumstances, which was prevailing in the said case.

Consequently, in view of the finding, which has been recorded in paragraph 5 of the said judgment, which is quoted hereinabove, the principles as laid down therein will not apply in the present case, which is based on altogether different circumstances.

After having heard the learned counsel for the parties and going through the records, this Court is of the view that both the courts below have concurrently recorded a finding of fact that a valid execution of the Will dated 11.06.2004 was not proved by the defendants/appellants in accordance with law of evidence and the question, which was sought to be substituted to be proved by the report of Tehsildar, it could not have an overriding effect on the provisions of Section 68 as mandated by Central Legislation for providing a document, which will have a prevailing effect over the local laws of mutation, which are summery in nature.

The second question, which was framed by the Second Appellate Court while admitting the Appeal pertaining to the effect of the evidence, which was collected by the Court during the pendency of the proceedings, this Court is of the view that the First Appellate Court after the evidence, which was brought on record had considered its impact and had ultimately found that the report of the scribe and the thumb impression report did favour the fact that the Will dated 11.06.2004 can be presumed to be executed by the Late father Randeep Singh, but that in itself would not suffice the purpose to prove to have been genuinely executed for the reason that to prove its execution more particularly when it becomes a subject matter of consideration before the Court of law, in such an eventuality, its proof has to be in consonance to the principles laid down under the laws of evidence, which calls for its strict adherence to prove a valid execution of a document. After having considered the said prospective pertaining to the consideration of evidence by the Appellate Court, which was collected during its proceedings, the said question does not involve to be answered in the present second appeal because (1) It was the procedure, which was adopted by the First Appellate Court for its own satisfaction (2) The said procedure as adhere to by the Court cannot have an overriding effect over the procedure contemplated under the recognized principle as settled down by the judgments of the Apex Court rendered above with regards to proving a valid execution of a document, hence, the second substantial question of law too does not involve for consideration in the present second appeal.

In that view of the matter, the said substantial question of law does not arise for consideration and this Court is of the view that the Second Appeal so far it relates to proving the document dated 11.06.2004 to have been validly executed has been concurrently held against the defendant and as such the Second Appeal lacks merit and is accordingly dismissed.

However there would be no order as to cost.