Himachal Pradesh High Court
Dharam Pal vs Coram on 26 April, 2018
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 358 of 2012.
.
Reserved on : 23rd April, 2018.
Decided on :26th April, 2018.
Dharam Pal .....Appellant/plaintiff.
Versus Coram:
r to Smt. Kailasho Devi & Ors. ....Respondents/defendants.
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Appellant: Mr. Ashok Chaudhary, Advocate.
For the Respondents: Mr. Neeraj Gupta, Advocate.
Sureshwar Thakur, Judge.
The plaintiffs' suit for rendition of a decree, for vacant possession of the suit property, stood decreed by the learned trial Court. In an appeal carried therefrom, before the learned First Appellate Court, by the 1 Whether reporters of the local papers may be allowed to see the judgment?
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defendants, the latter Court allowed his appeal besides obviously reversed the trial Court's judgment and decree.
2. Briefly stated the facts of the case are that the plaintiff instituted a suit against original defendant one Hem Raj (now deceased) for vacant possession of premises comprising single storeyed situated on part of Khasra No.1156 as shown in the site plan and for recovery of Rs.1000/- per month from the date of institution of the suit till realisation of the amount. It has been pleaded that land comprised in Khata No.243 min, Khatauni No.490, Khasra No.156, measuring 0-0097 hectares, situated in mohal and mouza Thakurdwara, Tehsil Indora, District Kangra, H.P., is shown to be iin the name of Bihari Lal, Kartara, Harnam Singh Brahmmo, Hazara Singh, Dasaundi Ram, Charan Dass, Parsinno, Vedo, Karmo, Swaran Kaur, Lachhman and Mehnga etc., while predecessor-in-interest of plaintiff, namely, Kesar Ram son of Sarno has been shown in possession as Kabiz and nature of the land is shown as gair mumkin shop. It ::: Downloaded on - 02/05/2018 23:17:13 :::HCHP ...3...
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is pleaded that in fact, Kesar Singh predecessor-in-
interest of plaintiff took over possession of suit land in the year 1972-73 and constructed single stored two shops, three rooms walls and gates in Khasra No.1156 as shown in the site plan. It is further pleaded that Kesar Singh died on 12.10.1998 and before his death he had executed a registered Will with respect to his movable and immovable property in favour of the plaintiff. The said Will was registered on 7.4.1998. On the basis of the aforesaid Will, the plaintiff became the owner in possession of construction so raised by his father Kesar Singh and his predecessor namely Samo. It is pleaded that plaintiff became owner of construction by way of Will and also purchased land in Khata where construction is situated from one co-sharer Swaran Kaur on 8.9.2000 by way of registered sale deed. It is pleaded that deceased defendant Hem Raj, after the death of his father took forcible possession over part of construction on dated 12.10.1998 and possession of defendant is that of ::: Downloaded on - 02/05/2018 23:17:13 :::HCHP ...4...
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trespasser. It is submitted that defendant is co-sharer in Khata but not in structure situated in khasra No.1156. It is pleaded that plaintiff asked deceased defendant to vacate the possession of said structure which he has forcibly occupied but defendant did not accept request of plaintiff. Hence the sit.
3. to The defendants contested the suit and filed written statement, wherein, they have taken preliminary objections of maintainability, cause of action, locus standi etc. It is submitted that the father of replying defendant, namely, Hem Raj deceased had purchased land from original owners Bihari, Kartara, Harbans Singh sons of Hira vide sale deed No.60 of 17.01.2001 for consideration of Rs.5000/-. It has been pleaded that father of defendant namely Hem Raj had constructed two shops in Khasra No.1156 in the year 1980 and three rooms over suit land during settlement operation but settlement authorities had wrongly recorded the name of father of Hem Raj. It is further pleaded that father of defendant ::: Downloaded on - 02/05/2018 23:17:13 :::HCHP ...5...
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opened bicycle repair shop during settlement operation.
Defendant's father had paid full and final sale consideration amount to Bihar, Kartara and Harbans. It is pleaded that the plaintiff is not owner of the suit property and plaintiff has filed wrong site plan. It is pleaded that the plaintiff is government employee and working in Punjab and is not living in village Thakurdwara. In fact, Kesar Singh, grand father of replying defendant is owner of suit land and Kesar did not execute any Will in favour of plaintiff. It is denied that plaintiff in accordance with Will dated 7.4.1998 became owner in possession of construction raised on the suit land. It is submitted that Hem Raj had constructed shops and rooms in the year 1980 and applied for electricity connection which was sanctioned in favour of Hem Raj. It is further pleaded that father of defendant had purchased 1/18th share measuring 0-01-01 hectares from original owners Bihari Lal, Kartara and Harbans and mutation has also been attested and sanctioned in favour of Hem Raj.
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4. The plaintiff filed replication to the written statement of the defendant(s), wherein, he denied the contents of the written statement and re-affirmed and re-
asserted the averments, made in the plaint.
5. On the pleadings of the parties, the learned at contest:-
r to trial Court struck the following issues inter-se the parties
1. Whether plaintiff is owner of suit property as shown in the site plan, as alleged?OPP.
2. Whether the plaintiff is entitled for possession of structure as shown in the site plan, situated on part of Khasra No.1156, as alleged? OPP.
3. Whether the plaintiff is entitled for recovery of Rs.1000/- from date of institution along with interest as prayed for?OPP.
4. Whether the plaintiff is owner of structure on the basis of valid Will executed by Kesar Ram in favour of plaintiff, dated 7.4.1998?OPP.
5. Whether suit is not maintainable in the present form as alleged? OPD ::: Downloaded on - 02/05/2018 23:17:13 :::HCHP ...7...
6. Whether plaintiff has no cause of .
action to file present suit as alleged?
OPD.
7. Whether plaintiff has no locus standi to file present suit, as alleged?OPD.
8. Whether suit is bad for non joinder of necessary parties, as alleged? OPD
9. Whether father of defendant purchased land from original owners Shri Bihari, Kartara and Harbans, residents of Thakurdwara vide document NO.60 of 17.01.2001, for consideration of Rs.5000/-, as alleged? OPD
10. Whether father of defendant is wrongly recorded as Kabiz (in possession) during the settlement operation as alleged?OPD.
11. Whether defendant Hem Raj has constructed disputed premises in the year 1980, as alleged?OPD
12. Relief.
6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court decreed ::: Downloaded on - 02/05/2018 23:17:13 :::HCHP ...8...
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the suit of the plaintiff/appellant herein. In an appeal, preferred therefrom, by the defendants/respondents herein, before, the learned First Appellate Court, the latter Court allowed the appeal, and, reversed the findings recorded by the learned trial Court.
7. Now the plaintiff/appellant instituted the instant Regular Second Appeal before this r herein, has Court, wherein they assail the findings recorded, in its impugned judgment and decree, by the learned first Appellate Court. When the appeal came up for admission, on 20.07.2012, this Court, admitted the appeal instituted by the plaintiff/appellant, against, the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial question of law:-
1. Whether the learned Appellate Court was correct in reversing the judgment of the learned trial Court holding that the Will ::: Downloaded on - 02/05/2018 23:17:13 :::HCHP ...9...
Ex.PW2/A has not been proved in
.
accordance with law?
Substantial question of Law No.1:
8. The deceased testator, one Kesar, executed a registered testamentary disposition vis-a-vis his estate, whereunder, he constituted the plaintiff, as his legatee.
There, occur, specific recitals in Ex.PW2/A, of, one Karam Singh, and, one Anup Singh, being both designated as marginal witnesses thereto, also the scribed capacity, and, the designated role of one Ram Kumar, is, echoed therein, as identifier, of, the deceased testator. However, none of the marginal witnesses vis-a-vis Ex.PW2/A, either stepped into the witness box, nor obviously testified in consonance with the imperative statutory tenets, of, the deceased testator scribing his signatures thereon, in their respective presence(s), and, thereafter each of them, also, in the presence of the deceased testator, hence doing likewise. The apposite testification, in consonance ::: Downloaded on - 02/05/2018 23:17:13 :::HCHP ...10...
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with the statutory ingredients, borne in Section 63 of the Indian Succession Act, was, however, rendered by one Ram Kumar, who as aforestated, is specifically designated therein, the role of only an identifier, of, the deceased testator. Nonetheless, in his testification, comprised, in his examination-in-chief, he has rendered a testification of Ex.PW2/A being scribed by one Ravinder Kumar Mahajan, and thereafter, contents thereof being explained, to the deceased testator, and, upon his comprehending, all the recitals borne in eX.PW2/A, the deceased testator in his presence, scribing his signatures thereon, whereafter, he, and subsequent thereto one Anup Singh, and, one Karam Singh, all, in the presence of the deceased testator, hence, proceeding to append their respective signatures thereon. He, in his examination-in-chief, has testified, of his being the marginal witness to the making, of, Ex.PW2/A. Further, he testified vis-a-vis the sound disposing state of mind, of the deceased testator, and, has proceeded, to echo of on ::: Downloaded on - 02/05/2018 23:17:13 :::HCHP ...11...
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7.4.1998, Ex.PW2/A, being presented before the Sub Registrar, Indora for registration, and, the latter, after querying the deceased testator, about veracity(ies), of, all contents, borne in Ex.PW2/A, also after the Sub Registrar concerned, reading, and, explaining vis-a-vis the deceased testator, all the recitals, borne in Ex.PW2/A,
(i) thereafter, the deceased testator, in the presence of Sub Registrar, hence, appending his signatures on Ex.PW2/A, specifically, underneath the relevant signatured endorsement existing on Ex.PW2/A, and, Anup Singh, one of the marginal witness thereto also before the Sub Registrar, appending his signature(s), thereon.
The aforesaid testification, occurring, in examination-in-
chief, of, PW Ram Kumar, specifically designated, in Ex.PW2/A to be an identifier, of the deceased testator, was not concerned to be belied, by the learned counsel for the defendant(s), while subjecting him, to an ordeal, of, a rigorous, and, scathing cross-examination.
Consequently, the afore referred echoings, borne, in the ::: Downloaded on - 02/05/2018 23:17:13 :::HCHP ...12...
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examination-in-chief of PW Ram Kumar, wherein, he ascribes vis-a-vis himself, the role of a marginal witness to Ex.PW2/A, (a) dehors, his being designated therein, as an identifier of the deceased testator, besides when even after the afore referred testification, standing rendered, by one Ram Kumar, the learned counsel for the defendants, not motioning, the learned trial Court, for, re-
summoning the plaintiff or PW Ram Kumar, for his endeavouring to from both, hence, elicit, qua (b) the omission of the plaintiff, to lead into the witness box, the designated marginal witnesses, vis-a-vis Ex.PW2/A, namely, one Anup Singh, and, one Karam Singh, (c) especially given both being specifically designated therein, the role of marginal witnesses thereto, (d) AND rather his leading into the witness box, one Ram Kumar, designated specifically in Ex.PW2/A, to be an identifier, of the deceased testator, rather being actuated by collusion inter se him, and, the plaintiff. Even otherwise, the defendants, did not seek adduction of best evidence, ::: Downloaded on - 02/05/2018 23:17:13 :::HCHP ...13...
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comprised in the report, of the handwriting expert, for belying, the existence of signatures, of, the deceased testator on Ex.PW2/A, as stood, appended thereon, both, at the pre-registration stage, and, also stood appended thereon, at the stage of its being presented, for registration by testification, of, r the deceased, (e) PW-2 one Ram Kumar, that, in the whereupon the presence of the registering officer, the deceased testator, after, being enabled to comprehend, its contents, his scribing his signatures thereon, hence, for lack of all aforesaid concerts, being made, by the counsel for the defendants, rather does coax a conclusion of the deceased testator, hence, appending his authentic signatures, on Ex.PW2/A, both at the pre-registration stage, and, at the state of its being presented, for registration, before, the registering authority concerned.
The sound disposing state of mind possessed by the deceased testator, at the stage of his executing Ex.PW2/A, is testified by PW Ram Kumar, testification ::: Downloaded on - 02/05/2018 23:17:13 :::HCHP ...14...
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whereof has remained uneroded, thereupon, it is concluded, of, dehors his being specifically designated, in Ex.PW2/A, as an identifier of the deceased testator, his rather being hence acquiesced, by the defendant, as a marginal witness thereto, and nor his being estopped to adduce proof vis-a-vis satiation(s) being meted, qua the imperative statutory para meters, enshrined, in Section 63, of, the Indian Succession Act.
9. Be that as it may, the learned counsel appearing, for the defendants/respondents herein, with vigour contended, that with the testification of Ram Kumar, specifically designated, in Ex.PW2/A, as identifier of the deceased testator, thereupon, his scribed, designated capacity, rendered him disabled, to be capacitated, to depose, as marginal witness thereto nor hence he possessed, the requisite animus attestendi, to render any deposition qua the trite factum, of, valid execution of Ex.PW2/A. In making the aforesaid submission, the learned counsel, for the ::: Downloaded on - 02/05/2018 23:17:13 :::HCHP ...15...
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defendants/respondents, relied, upon para 26, of, a judgment rendered by the Hon'ble Apex Court, in a case titled as N. Kamalam (dead) and another vs. Ayyasamy and another, reported in (2001)7 SCC 503, relevant portion of paragraph No.26 whereof stand extracted hereinafter:
"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" (air PP.113-14, para 3-4):::: Downloaded on - 02/05/2018 23:17:13 :::HCHP
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"(3)....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 ::: Downloaded on - 02/05/2018 23:17:13 :::HCHP ...17...
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 witnessto 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 ::: Downloaded on - 02/05/2018 23:17:13 :::HCHP ...18...
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 ::: Downloaded on - 02/05/2018 23:17:13 :::HCHP ...19...
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."
Wherein the Hon'ble Apex Court, has, expostulated, of the scribe of the Will, being incapacitated, to occupy the status, and, capacity of a marginal witness, to the relevant testamentary disposition. The learned counsel appearing for the defendants/respondents, for lending strength to the aforesaid espousal, has also placed reliance, upon, a judgment of the Hon'ble Apex Court, rendered, in a case titled as S.R. Srinivasa and others vs. Padmavathamma, reported in (2010)5 SCC 274, the relevant paragraph No.38 and 41 whereof stand extracted hereinafter:-
"38. In the case of H. Venkatachal a Iyengar v. B.N. Thimmajamma, [1959 Supp (1) SCR 426] Gajendragadkar J. stated the true legal position in the matter of proof of Wills. The aforesaid statement of law was further clarified by Chandrachud J. in the case of Jaswant Kaur v Amrit Kaur [(1977)1 SCC 369] as follows:::: Downloaded on - 02/05/2018 23:17:13 :::HCHP
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"1. Stated generally, a will has to be proved like .
any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
2. Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, 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.
3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
4. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a ::: Downloaded on - 02/05/2018 23:17:13 :::HCHP ...21...
substantial benefit and such other circumstances .
raise suspicion about the execution of the will.
That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
5. It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.
6. If a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the will, such pleas have to be proved by him, but even in ::: Downloaded on - 02/05/2018 23:17:13 :::HCHP ...22...
the absence of such pleas, the very circumstances .
surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter."
Applying the aforesaid principles to this case, it would become evident that the Will has not been duly proved.
39. As noticed earlier in this case, none of the attesting witnesses have been examined. The scribe, who was examined as DW.2, has not stated that he had signed the Will with the intention to attest. In his evidence, he has merely stated that he was the scribe of the Will. He even admitted that he could not remember the names of the witnesses to the Will. In such circumstances, the observations made by this Court in the case of M.L. Abdul Jabbar Sahib v. M.V. Venkata Sastri & Sons , [(1969)1SCC 573], become relevant.
Considering the question as to whether a scribe could also be an at testing witness, it is observed as follows:
"7. .....It is essential that the witness should have put his signature animo attestandi , that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature. If a person puts his signature on the document for some other purpose, e.g., to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness."::: Downloaded on - 02/05/2018 23:17:13 :::HCHP
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40. In our opinion, the aforesaid test has not been .
satisfied by DW.2 the scribe. The situation herein is rather similar to the circumstances considered by this Court in the case of N. Kamalam v.
Ayyasamy, [(2001)7 SCC 503]. Considering the effect of the signature of scribe on a Will, this Court observed as follows:
"26.The effect of subscribing a signature on the part of the scribe cannot in our view be identified to be of the same status as that of the attesting witnesses.....
27. ...The animus to attest, thus, is not available, so far as the scribe is concerned: he is not a witness to the will but a mere writer of the will. The statutory requirement as noticed above cannot thus be transposed in favour of the writer, rather goes against the propounder since both the witnesses are named therein with detailed address and no attempt has been made to bring them or to produce them before the court so as to satisfy the judicial conscience. Presence of scribe and his signature appearing on the document does not by itself be taken to be the proof of due attestation unless the situation is so expressed in the document itself -- this is again, however, not the situation existing presently in the matter under consideration."
41. The aforesaid observations are fully applicable in this case. Admittedly, none of the attesting witnesses have been examined. Here signature of the scribe cannot be taken as proof of attestation. Therefore, it becomes evident that the execution ::: Downloaded on - 02/05/2018 23:17:13 :::HCHP ...24...
of a Will can be held to have been proved when .
the statutory requirements for proving the Will are satisfied. The High Court has however held that proof of the Will was not necessary as the execution of the Will has been admitted in the pleadings in O.S.No.2 33 of 1998 , and in the evidence of P.W.1 (pp. 286-288) wherein likewise the Hon'ble Apex Court, has, not invested vis-a-vis, the scribe of "the Will", the status, of, marginal witness thereto. This Court agrees with the aforesaid legal expostulations borne, in the afore referred verdicts rendered by the Hon'ble Apex Court. However, the aforesaid expostulations, are, confined to the incapacity, of, a scribe to testify as a marginal witness vis-a-vis the valid execution, of the apposite testamentary disposition. However, hereat, one Ram Kumar, who, rather, in his testification, borne in his examination-in-chief, has hence, unequivocally, and, unprotestedly echoed therein, of his being a marginal witness to Ex.PW2/A, and, has further testified, vis-a-vis satiations, being meted, vis-a-vis all the imperative ::: Downloaded on - 02/05/2018 23:17:13 :::HCHP ...25...
.
statutory ingredients, (i) specifically of the deceased testator, scribing his signatures, in his presence, whereafter, his, in the presence of the deceased testator also appending his signatures thereon, (ii) and, subsequent thereto, both the marginal witnesses thereto, also, in the presence of the deceased testator hence embossing their respective signatures thereon.
r Nowat, with the efficacy(ies), of, aforesaid deposition, remaining unconcerted to be shattered by the counsel for the defendants, during, the ordeal of his subjecting him, to, a rigorous cross-examination, (iii) thereupon, he is to be construed, to holding the requisite animus attestendi. As aforestated, with, after recording of the depositions, of the plaintiff, and, of one Ram Kumar, the learned counsel for the defendants, not seeking recall, of the aforesaid witnesses, for eliciting from both qua theirs holding inter se collusion, (iv) whereupon, hence the plaintiff was inclined to lead, only PW-2 Ram Kumar, into the witness box, whereas was required to lead into the witness box, ::: Downloaded on - 02/05/2018 23:17:13 :::HCHP ...26...
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the designated marginal witnesses thereto, (v) thereupon, with this Court hence concluding, of one Ram Kumar rendering, an unblemished testimony vis-a-vis his holding, the apposite animus attestendi, (vi) besides the signatures of deceased testator, borne in Ex.PW2/A, being concluded, to, remain unbelied, for, want, of, adduction of best evidence nor the signatures of one Anup Singh, and, one Karam Singh standing belied, (vi) rather, when one of the apposite marginal witness, also accompanied Ram Kumar, and, the deceased testator, to the office of Sub Registrar concerned, for enabling the deceased testator, to ensure its registration, (vii) whereat also PW-2 Ram Kumar testifies, of, after the Sub Registrar, ensuring the deceased testator, being enabled to comprehend, all the recitals borne in Ex.PW2/A, whereafter, his making the deceased testator, to, append his signature underneath the relevant endorsement(s), also the sub registrar concerned, signing, the relevant endorsements, (viii) obviously, constitute evidentiary ::: Downloaded on - 02/05/2018 23:17:13 :::HCHP ...27...
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material, in personification vis-a-vis valid proof, of, execution of Ex.PW2/A, by the deceased testator, and, also proof thereof, hence, assuredly, falling within the domain of Section 63, of the Indian Succession Act, also, reiteratedly hence, cogent proof, by, PW-2 being adduced the deceased testator.
r to vis-a-vis the valid, and, due execution of Ex.PW2/A, by
10. The learned counsel, for the defendants /respondents herein, has further contended that even, though, the judgments supra appertain, to an interdiction being cast, against, a scribe being construable to be not holding the requisite animus attestendi also his being debarred, to depose as marginal witness, to the apposite testamentary disposition. Nonetheless, he contends, that the ratio decidendi thereof, is comprised (a) in the designated scribed capacity, of any person vis-a-vis the testamentary disposition, per se hence debarring him, to depose as a marginal witness, to the relevant testamentary disposition, (b) hence, with Ram Kumar ::: Downloaded on - 02/05/2018 23:17:13 :::HCHP ...28...
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holding a specific designated capacity of an identifier, vis-a-vis PW-2/A, hence, his not holding the capacity, to depose, as a marginal witness, in proof of valid execution of, the testamentary disposition. However, the aforesaid submission, for the reasons aforestated, is, outrightly rejected, (c) significantly when he has testified, of, his holding the requisite animus attestendi, testification whereof reiteratedly stands acquiesced, and, with there being no rigid statutory bar, engrafted in Section 63, of, the Indian Succession Act, against, only two marginal witness being associated vis-a-vis the execution, of, the apt testamentary disposition. (d) thereupon, even if, Ram Kumar is described in Ex.PW2/A, to be an identifier, of deceased testator, hence, he is rather to be construed to be the 3rd marginal witness to Ex.PW2/A, and, also when he unlike the expostulation borne in judgments supra, rendered by the Hon'ble Apex Court, wherein, the scribe alone is debarred to render any testification, in purported proof, vis-a-vis the imperative statutory ingredients, ::: Downloaded on - 02/05/2018 23:17:13 :::HCHP ...29...
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enshrined, in Section 63 of the Indian Succession Act, and, his testification, if, rendered being discardable, and, his being also construed to be not holding the requisite animus attestendi, (e) whereas, in contradistinction thereof, with PW Ram Kumar, formidably, loudly, and, bespeakings, rof his to candidly in his examination-in-chief, making acquiesced holding, the requisite animus attestandi also his being associated as marginal witness thereto, testification whereof remains unshattered, (f) thereupon, they hence acquire an aura of veracity, whereupon, he is to be concluded qua his being a marginal witness to Ex.PW2/A, besides, hence the ratio decidendi propounded in judgments supra, rendered by the Hon'ble Apex Court, against, persons described, in "the Will" to be holding a specified capacity, being per se baulked, to depose as marginal witness thereto, obviously remaining unattracted hereat.
11. The above discussion unfolds the fact that the conclusions as arrived by the learned first Appellate Court ::: Downloaded on - 02/05/2018 23:17:13 :::HCHP ...30...
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being not based upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court has excluded germane and apposite material from consideration. Substantial questions of law No.1 answered in favour of the the
12. to appellant and against the respondents.
In view of above discussion, the instant appeal is allowed. In sequel, the judgment and decree rendered by the learned First Appellate Court in Civil Appeal No. 53-I/XIII-2009 is set aside, whereas, the judgment and decree rendered by the learned Civil Judge (Junior Division) Indora in Civil Suit No. 602/04 is affirmed and maintained. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs.
(Sureshwar Thakur) 26 th April, 2018. Judge.
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