1. This is defendant's second appeal against whom the suit for possession of the agricultural land has been decreed by both the Courts below:
2. The plaintiffs brought the suit for possession of the half share of the land measuring 93 kanals 17 marlas against Jarnail Singh defendant-appellant, on the allegation that Bhan Singh and Dan Singh were the co-owners of 93 kanals 17 marlas of land. The said Bhan Singh together with Kalyan Singh, Hainam Kaur, Dan Singh and Narain Singh, plaintiff, owned 94 kanals 3 marlas of land specified in paragraph 3 of the plaint. Kalyan Singh and Harnam Kaur expired. Narain Singh, plaintiff, got their inheritance. On the demise of Dan Singh one Mst. Panna describing herself as the widow of Dan Singh, deceased, got his land mutated in her favour which led the plaintiffs to file a suit against her which was dismissed by the trial Court. On appeal being filed a compromise was arrived at therein. Mst. Panna delivered possession of the land to the plaintiffs admitting that they were the heirs of Dan Singh. The plaintiffs were the heirs within the fifth degree of Bhan Singh who passed away on Feb. 8, 1967, and were thus, entitled to inherit him. The alleged will by Bhan Singh in favour of Jarnial Singh, appellant was a fictitious document and that the mutation sanctioned on ifs basic was not binding on the reversionary rights of the plaintiffs. The suit was contested inter alia on the ground that the will in favour of the defendant by Bhan Singh, testator and the mutation sanctioned n it basis were valid. On the pleadings of the parties the trail Court framed the following issues:
1. Whether the plaintiffs are the heirs of Bhan Singh and Dan Singh and they are owners of the property, in suit?
2. Whether the property in suit, is ancestral qua Bhan Singh and the plaintiffs?
3. Whether the parties were governed by custom in matters of alienations?
4. Whether Dan Singh, pre-deceased Bhan Singh? If so, its effect?
5. Whether Bhan Singh executed a valid and genuine will in favour of the defendant?
6. Whether the suit is filed within the period of limitation?
Under issue No. 1, the trail Court found that the plaintiffs were the only heirs of Bhan Singh and Dan Singh. Under issue No. 2, it found that the plaintiffs had failed to prove the ancestral nature of the suit land. Issue No. 3 became redundant in view of the enforcement of the Punjab Custom (Power to Contest) Amendment Act, 1973. Under issue No. 5, which was the most material issue, the will Exhibit D-3, could not be read in evidence as it was not duly proved in accordance with the provisions of Section 68 of the Evidence Act. As a result the plaintiffs' suit the plaintiffs' suit was decree. In appeal the learned Additional District Judge affirmed the said finding of the trail Court and thus maintained the decree passed in favour of the plaintiffs by it. Dissatisfied with the same the defendant has come up in second appeal to this Court
3. The only question to be decided in this appeal is: whether the execution of the will Exhibit it D-3, by Bhan Singh, estates was duly proved by the defendant or not?
4. According to the finding of the Court below the will was not duly proved because the two attesting witnesses thereof were not produced and that the evidence of the Sub-Registrar D.W. 3, and the scribe D.W. 5, could not be said to be that of the attesting witnesses as to prove the execution of the will Exhibit D-1, in accordance with the provision of Section 68 of the Evidence Act.
5. The learned counsel for the appellant contended that the two attesting witnesses could not be produce though they were summoned because they demanded price for deposing in favour of the defendant. In any case argued the learned counsel the testimony of the Sub-Registrar who registered the will on the very day of its execution on Jan. 27, 1966. amply proves the attestation of the will read with the testimony of the scribe, D.W. 4.
6. After hearing the learned counsel for the parties and going though the evidence of Mohinder Singh retired Sub-Registrar D.W. 3, and Vidya Sagar, Petition-Writer, the scribe of the will D.W. 5, I am of the considered opinion that the execution of the will was duly proved in accordance with the provision of Section 68 of the Evidence Act. Mohinder Singh Sub-Registrar, D.W., stated that the will was read over to Bhan Singh testator who admitted it to be correct. He further stated that in his presence and in the presence of Dula Singh and Gurdial Singh, he (the testator) thumb-marked the endorsement made to that effect in his presence and in the presence of the witnesses. He further stated that the witnesses had already attested the endorsement and the same was singed by him also. Similar is the statment of Vidy Sagar, D.W., who categorically stated that in this presence and in the presence of Dula Singh and Gurdial Singh who are the two attesting witnesses, Bhan Singh, testator, executed the will Exhibit D-3. It was read over to him who admitted it to be correct and thumb-marked it in his presence and in the presence of the attesting witnesses. It was signed by him. I have seen the original will Exhibit D-3, also and the endorsement made thereon by the Sub-Registrar. In Regular Second Appeal No. 1795 of 1974, (Lal Singh v. Bant Singh) decided by me on March 2, 1963: (reported in AIR 1963 Punj and Har 384), I have already taken the view that the registering officer and the identifying witnesses before him can be treated as the attesting witnesses 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. Reliance was placed therein on the judgment in Gian Chand v. Surrinder Kumar, (1951) 53 Pun LR 251: (AIR 1951 Punj 305). Thus, in thc present case, the view taken by the Courts below in this behalf is wrong. The execution of the will has been duly proved on record by the defendant-appellant and the same is a valid document.
7. Apart from that, the will was made in favour of Jarnail Singh in lieu of the services rendered by his father Gurdev Singh to the testator, as the legatee Jarnail Singh was a minor. Gurdev Singh has appeared as D.W. 7, as the guardian of the minor legatee. He has categorically stated that Bhan Singh used to reside with him for the last 10 to 12 years and that they used to render services to him. He performed all the ceremonies after his death. This statement was never challenged on behalf of the plaintiffs in cross-examination. Admittedly the plaintiffs are the fifth degree collateral's of the deceased. Therefore it was but natural that the person who was actually serving and looking after him during his lifetime was preferred by the testator to the distant collaterals who were not at all concerned with him during his lifetime. Even the necessary ceremonies after his death were not performed by them. Under the circumstances it could not be said that will, Exhibit D-3 was not genuine document. A will is always made to deprive a person who will otherwise legally succeed to the estate of the testator. Since the plaintiffs were the fifth degree collaterals and were not at all interested in the testator during his lifetime it was but natural for him to deprive them of his estate and to benefit the persons which whom he resided and who rendered his services during his lifetime. Moreover the will is a registered document and the thumb-mark thereon was duly proved by comparison with the thumb-mark of the testator on the sale deed executed by him during his lifetime. The thumb-mark was compared by during his lifetime. The thumb-mark was compared by the handwriting expert who appeared as D.W. 6, and opined the same to be that of Bhan Singh testator. There was no rebuttal to this evidence Under the circumstances the findings of the Court below in this behalf are wrong and are liable to be set aside.
8. It may also be mentioned that during the pendency of the suit one of the plaintiffs Mengha Singh died on Sept. 27, 1973. No. application to bring his legal representatives on the record was filed and the suit was decreed in favour of the plaintiffs (including, him), on Jun, 18, 1974. In the appeal filed on behalf of the defendant-appellant when this fact was brought to the notice of the Court an applications dated April 2,1974, was filed. However ultimately, the lower appellate Court vide its separate order dated May 28, 1974, held that the suit had abated regarding the share of Mengha Singh, plaintiff, only. The learned counsel for the appellant also contended that the suit abated as a whole and not partially, as held by the lower appellate Court. I do not find any force in this contention. In any case this question does not arise view of the findings given earlier.
9. Consequently, this appeal succeed and is allowed. The judgments and.decrees of the Courts below are set aside and the plaintiffs' suit is dismissed with no order as to costs.
10. Appeal allowed.