Judgment

KAILASAM, J.:- This appeal is preferred by the defendant in the suit on a certificate of witness granted by the High Court of Jammu and Kashmir under Art. 133 of the Constitution.

2. The respondent, Ishroo Devi, filed a suit for a decree for possession of all the three items of property mentioned in the plaint and for future mesne profits. It was alleged that the three items of property mentioned in the plaint were the self-acquired properties of one Purohit Mani Ram. He executed a will on 25th May, 1959, out of his own free will in favour of the respondent. The original will was attached to the plaint. Purohit Mani Ram died on 24th March, 1960, at Jammu and the respondent claimed to be the sole owner of the properties.

3. The first appellant is the son, the second appellant is the wife and the third appellant is the grand-daughter of Purohit Mani Ram. In the plaint it is alleged that the first appellant after the death of Purohit Mani Ram got rent deed executed in his favour and also recorded mutations in his name and dispossessed the respondent. The respondent also claimed that the three items of property were the separate properties of Purohit Mani Ram and that he was entitled to dispose of them under a will. In the written statement the appellants averred that the properties belonged to the joint family of which the first appellant and his father, Purohit Mani Ram, were members and as the properties were joint family properties, they cannot be disposed of by will. It was further alleged that the will was a forged one and is fictitious.

4. The respondent examined Janak Lal Sehgal, and advocate of the SC, and the scribe of the will one Bodh Raj. P.W. 1, the advocate, stated that Mani Ram executed the will on 25th May 1959 in favour of the respondent. He saw Mani Ram affix his signature on the will. The words (in vernacular) under which Janak Lal had signed as witness, were under the words (in vernacular) where Purohit Mani Ram had signed. Janak Lal had given the date with his own hand where he had signed as witness. The witness also testified that the mental condition of Purohit Mani Ram was good and he executed the will of his own free will and no pressure or fraud was played on him. P.W. 2. Bodh Raj is the scribe of the will. He stated that he wrote the will at the instance of Mani Ram and after reading the will and explaining it to the testator, the testator affixed his signature and admitted it to be correct. According to the witness the will was executed on 25th May. 1959, and on the same date the signature of the testator and those of the witnesses were affixed. At the time of the examination the witness stated that the physical and the mental condition of the testator was good and that he read out the will at the house of Janak Lal Sehgal and obtained the signature of Mani Ram and that of P.W. 1, the advocate. P.W. 3, Lodra Mani, stated that Mani Ram was the A.D.C. of Maharaja Pratap Singh and was in service for Maharajas Puja, and that the Maharaja was giving lot of money to Purohit Mani Ram as present. The witness also stated that item 1 of the properties was constructed by Mani Ram with his own income.

5. On behalf of the appellants a handwriting expert, Philip Hardless, and three witnesses were examined in addition to the first appellant.

6. The trial Court accepted the evidence of P. W. 1, the advocate, and P. W. 2, the scribe and held that the will was proved. Holding that items 1 (b) & 2 of the plaint schedule properties were ancestral properties (it) found that Mani Ram had no authority to dispose of these two items of properties by will. Therefore while decreeing the suit as regards item No. 1 (a) of the plaint schedule properties dismissed the claim as regards items 1 (b) and 2.

7. On appeal by the appellants a Bench of the Jammu and Kashmir High Court agreeing with the finding of the trial court and accepting the testimony of P. W. 1, the advocate, and P. W. 2, the scribe of the will, found it to be gen