The deed of cancellation of a will must be proved in accordance with the requirements of the Indian Succession Act, and mere registration does not confer the status of a public document. The contents of the deed of cancellation need to be independently proved.

1. This appeal under Section 100 of the Code of Civil Procedure, 1908 has been filed by the original defendant who is aggrieved by the declaration granted by the trial Court in favour of the respondents – plaintiffs that they were the owners of the suit land and were thus entitled for its possession.

2. The facts relevant for deciding the appeal are that one Chintaman Barai was the owner of the field Survey Nos.92 and 94/2. He had no issues. He however had a sister Tanabai. On 13-9-1968 said Chintaman executed a will bequeathing the aforesaid land in favour of the original defendant Pandharinath. According to the plaintiffs this will was subsequently cancelled by executing a deed of cancellation on 24-12-1970. This deed was also registered. Said Chintaman expired in the year 1975 and was survived by his sister. His sister Tanabai sold the aforesaid lands in favour of the plaintiffs who were brothers on 26-8-1987. The plaintiffs claimed to be put in possession accordingly. A dispute arose between the plaintiffs and the defendant with regard to possession. A receiver was appointed by the Sub-Divisional Magistrate and the parties were directed to get their title adjudicated in the Civil Court. Tanabai expired on 20-8-1989. Ultimately the plaintiffs filed suit seeking declaration that they were the owners of the suit property on the basis of the sale deeds executed by Tanabai. Possession was also sought.

3. The defendant filed his written statement at Exhibit-12. It was pleaded that on the basis of will dated 13-9-1968 executed by Chintaman he had become owner of the said lands. The execution of the deed of cancellation on 24-12-1970 was denied. Similarly, the subsequent sale deeds executed by Tanabai in favour of the plaintiffs were also denied. It was asserted that the defendant was always in possession till the same was taken from him by the Receiver.

4. The parties led evidence before the trial Court. The plaintiffs examined plaintiff no.2 and two other witnesses. The defendant examined himself. On the basis of evidence on record, it was held that Tanabai had inherited the suit property from Chintaman as Chinman had cancelled the will executed in favour of the defendant. On that basis, the suit was decreed and the plaintiffs were held entitled for possession. The appellate Court on re-appreciation of the evidence on record confirmed the findings recorded by the trial Court and dismissed the appeal. Hence the legal heirs of the original defendant have filed this second appeal.

5. The following substantial questions of law were framed while admitting the appeal:

(1) Whether certified copy of cancellation of will deed dated 24.12.1970 (Exh.51) could be treated as public document and could have been admitted in evidence without examining attesting witnesses thereon?

(2) Whether certified copies of the sale deeds (Exhs.54, 55 and 56) could have been admitted in evidence without examining any attesting witnesses thereon?

6. Shri S.P. Kshirsagar, learned Counsel for the appellants submitted that deed of cancellation of will dated 24-12-1970 was not duly proved by the plaintiffs. What was placed on record was a certified copy of said document. The witness examined by the plaintiffs was a clerk from the Sub Registrar Office. This witness merely referred to the records maintained by the Office of the Sub-Registrar and his evidence could only prove registration of that document. The contents of the deed of cancellation at Exhibit-51 were not proved by the plaintiffs. The contents were required to be proved inasmuch as they were specifically denied by the defendant. It was then submitted that the aspect of registration of said document would not dispense with the proof of contents of said document and the same were required to be independently proved. As the deed of cancellation was not duly proved, the will executed in favour of the defendant on 13-9-1968 operated and on that basis, the defendant was the owner of the suit properties.