1. This is plaintiffs second appeal whose suit for possession of 1/5th share was decreed by the trial court but has been dismissed in appeal.
2. Kala Singh was the owner of the suit land. He died on 27th Sep., 1973 leaving behind four sons and a daughter. During his lifetime, land measuring 13 Kanals 1 Marla was given to Harbhajan Singh minor son of Ujagar Singh by suffering a decree against himself. Mutation (Exhibit D 2) was sanctioned on 18th May, 1972 on the basis of that decree. Later on he made a will dt. 12th May, 1973 of his remaining land in favour of his three sons. The plaintiff Ujagar Singh filed the suit claiming his 1/5th Ujagar singh filed the suit claiming his 1/5th share in the suit land life by their father Kaka Singh. The suit was contested by the defendants on the basis of a will dt. 12th May, 1973 in their favour by their father kaka singh. The only controversy between the parties was whether Kaka Singh, deceased, executed a valid will in favour of defendants 1 to 3. The trial Court came to the conclusion that the will was not executed in accordance with provisions of S. 63 of the Succession Act, 1925 nor the same can be said to have been duly proved on the record. In view of that finding. plaintiffs suit for his 1/5th share was decreed.
3. In appeal, the learned District Judge reversed the said finding of the trial Court and came to the conclusion that the will (Exhibit D 1) was a most genuine document because as regards the plaintiff he had already been compensated by their father by suffering a decree in favour of his son Harbhajan Singh. As regards the execution of the will, it was found that it execution was duly proved by the attesting witness Dhanraj Singh (D.W. 1) and the scribe. In view of these findings plaintiffs suit was dismissed. Dissatisfied with the same, the plaintiff has filed this second appeal in this Court.
4. The learned counsel for the appellant contended that the will was surrounded by suspicious circumstances and neither it was duly executed nor it was duly proved. Scribe could not be held to be an attesting witness on the fact and circumstances of the case. View taken by the lower appellate Court in this behalf was wrong and illegal whereas the trial Court had rightly found that the will was not duly executed. In support of his contention, he referred to Amardas Mangaldas v. Harmanbhai Jethabhai, AIR 1942 Bom 291 and Onkar Pershad v, Jagdish Pershad, AIR 1952 Punj 237. On the other hand the learned counsel for the defendants-respondent submitted that in a given circumstances, even the scribe could also be an attesting witness and therefore, the view taken by the lower appellate Court in this behalf was correct. In support of his contention, he referred to M. Venkatasubbaiah v. M. Subbamma, AIR 1956 Andhra 195 and Sita Ram v. R.D. Gupta, AIR 1981 Punj and Har 83. It was also contended that whether the will has been duly executed or not is a question of fact and could not be interfered with in second appeal. In support of his contention, reference was made to Mst. Gori v. Munshi Ram, AIR 1956 Punj 145.
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.
6. Consequently, the appeal fails and is dismissed with no order as to costs.
7. Appeal dismissed.