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Lal Singh and anr. Vs. Bant Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Regular Second Appeal No. 1795 of 1974
Judge
Reported inAIR1983P& H384
ActsTransfer of Property Act - Sections 3; Registration Act - Sections 59
AppellantLal Singh and anr.
RespondentBant Singh and ors.
Cases Referred and Naresh Charan v. Paresh Charan
Excerpt:
.....from the date when the parties concerned acquire knowledge of passing of the said order. - 6) it has been amply proved that the thump impressions on the will both the testator as well as of the attesting witness were put in his presence. both the appeals fail and are dismissed with costs......counsel. the attestation of the will has not been validly proved because sajjan singh. one of the attesting witnesses. who has appeared as d.w. 2. haas not deposed that smt. santi put her thumb impressions in his presence. the other attesting witness dalip singh has not been produced. the evidence of the registrar. who registered the will and appeared as d.w. 6 atma ram. could not prove the attestation of the will as the endorsement made by hi on the will (ex. d-1) was in his official capacity and that according to the learned counsel did not amount to attestation. in support of his contention. he referred to abdul jabbar v. venkata sastri (air 1969 sc 1147). he further contended that even the scribe could not be an attesting witness to the will because he put his signature thereon as a.....
Judgment:

1. This judgment will dispose of Regular Second Appeals Nos. 1794 and 1795 of 1974. The facts as given in R. S. A. No. 1795 of 1974 are a under:--

2. The plaintiff-appellant filed the suit for possession of the agricultural land on the allegation that Ishar Singh s/o Narain Singh was a last male holder of the land in dispute measuring 276 Kanals 15 Marlas and one-half share in widow Smt. Santi succeeded to his property. The plaintiffs claimed themselves to be the sixth degree collaterals of Ishar Singh. husband of Smt. Santi and as such entitled to inherit the suit property. They also pleaded that Smt. Santi made a valid will in their favour on 13-1-1967 vide Exhibit P-1. In the written statement Hari Singh, defendant. pleaded that Smt. Santi had executed earlier a registered will in his favour on 6-2-1963 vide Exhibit D-1 and on that basis the mutation has also been sanctioned in his name on 24-3-1967. The alleged will in favour of the plaintiff was denied. The trial court came to the conclusion that Smt. Santi did not execute any valid will in favour of the plaintiffs : whereas the will (ex. D-1) set-up by the defendant was found to be a genuine document. As a result of this finding. the plaintiffs' suit was dismissed.

3. In appeal, the learned Addl. District Judge, affirmed the findings of the trial court and thus maintained the decree dismissing the plaintiffs' suit. Dissatisfied with the same, the plaintiffs have come up in second appeal in this Court.

4. No challenge has been made to the findings of the courts below, as regards the will (Ex. P-1), set-up on behalf of t he plaintiff-appellants. The only contention raised on behalf of the appellants is that the will (Ex. D-1) executed by Smt. Santi in favour of Hari Singh, defendant, has not been legally proved. According to the learned counsel. The attestation of the will has not been validly proved because Sajjan Singh. one of the attesting witnesses. who has appeared as D.W. 2. Haas not deposed that Smt. Santi put her thumb impressions in his presence. The other attesting witness Dalip Singh has not been produced. The evidence of the Registrar. who registered the will and appeared as D.W. 6 Atma Ram. Could not prove the attestation of the will as the endorsement made by hi on the will (Ex. D-1) was in his official capacity and that according to the learned counsel did not amount to attestation. In support of his contention. he referred to Abdul Jabbar v. Venkata Sastri (AIR 1969 SC 1147). He further contended that even the scribe could not be an attesting witness to the will because he put his signature thereon as a scribe and not for the purpose of attesting the document. In support of his contention he referred to Jnanada Govinda v. Birendra Nath (AIR 1939 Cal 595).

5. On the other hand. The learned counsel for the respondent s relied upon Gian Chand v. Surrinder Kumar (1951-53 Pun LR 251): (AIR 1951 Punj 305). Wherein it has been held that the Registering Officer and the identifying witness before him can be treated as attesting witness of the will if it is proved that they signed the will in the presence of the testator after receiving from him an acknowledgement of his signature on the will. In support of this proposition he further relied upon E. B. Souza v. J. F. Souza (AIR 1963 Punj 66) Harbhajan Singh v. Chanan Singh (1964-66 Pun LR 1170) and Naresh Charan v. Paresh Charan (AIR 1955 SC 363).

6. After hearing the learned counsel for the parties. I am of the considered opinion that there is no merit in this appeal. The lower appellate Court has discussed the entire evidence on the record. Sajjan Singh, one of the attesting witnesses did appear as D.W. 2 in the witness box. He resiled from his statement and thus he was got declared hostile by the defendant. The lower appellate Court on the statement of Sajjan Singh (D.W. 2) read with the statement of Shri Atma Ram (D.W. 6) came to the conclusion that the execution and proper attestation of t he will (Ex. D-1) was fully proved. The ratio of the judgment in 1951 Pun LR 251: (AIR 1951 Punj 305)(supra) is fully applicable to t he facts of the present case. It has been held therein that the Registering Officer and the identifying witness before him can be treated as attesting witness of the will if it is proved that they signed the will in the presence of the testator after receiving from him an acknowledgement of his signature on the will. During the statement of Shri Atma Ram (D.W. 6) it has been amply proved that the thump impressions on the will both the testator as well as of the attesting witness were put in his presence. A specific note in hand has been given on the back of the will to that effect. Thus from the statement of the Registrar the attestation of the will (Ex. D-1) is proved. Abdul Jabbar's case (AIR 1969 SC 1147) 9supra). relied upon by the learned counsel for the appellant. has no applicability to the facts of the present case. Moreover. There the word 'attested' as defined in S. 3. T. P. Act. was being considered and it was observed that prima facie the registering officer puts his signature on the document in discharge of his statutory duty under S. 59. Registration Act. and not for the purpose of attesting it or certifying that he has received from the executant a personal acknowledgement of his signature. It may be so. But in the present case. as stated earlier. apart from the statutory endorsement there is a note on the Ex. D-1 that the testator put her thumb-impression in their presence. In this view of the matter. I do not find any infirmity or illegality in the findings of the two courts below as to be interfered with in second appeal.

7. It is not disputed that in case the will (Ex. D-1) is upheld, then R. S. A. No. 1794 of 1974 as to be liable to be dismissed.

8. As a result of the above discussion. Both the appeals fail and are dismissed with costs.

9. Appeals dismissed.


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