IMPORTANT POINT
Will--Can be proved on basis of statement of Sub-Registrar alone without examining of attesting witnesses.

Hemant Gupta, J.

1. Defendant No.l Bhim Sain is in the second appeal aggrieved against the judgment and decree passed by the learned Courts below whereby suit for possession and for recovery of Rs. 14,400/- as compensation for occupation of the shop in dispute, was decreed.

2. The brief facts out of which present appeal arises is that Ghansham Daos, father of the parties, was the owner of the property in dispute. The plaintiff claims that Smt. Rattan Devi, mother of the parties, was owner of the property in dispute after the death of her husband. She executed a registered Will on 21.07.1986. The plaintiff alleged that since he is the owner of the suit property by virtue of the Will of his mother, thus, the defendant No. 1 is in illegal possession of the same. Therefore, the plaintiff is entitled to possession and also compensation for wrongful enjoyment of possession of the shop by the said defendant.

3. Defendant No.l in his written statement denied the execution of Will by Rattan Devi. It was asserted that Ghansham Dass, father of the parties, executed Will dated 23.06.1968 in favour of his four sons. After the death of Ghansham Dass, defendant No. 1 had become owner of the suit property to the extent of his share. Earlier, he has filed a civil suit in the year 1993. Will dated 23.06.1968 was accepted but the Will 21.07.1986 propounded by the plaintiff was rejected. Therefore, the defendant claimed that he is in possession of the property as owner. Other defendants except defendant No.3 admitted the claim of the plaintiff.

4. Plaintiff examined PW1 Ranjit Kanwar to prove Will dated 21.07.1986. Will was presented for registration in the presence of Tarsem Lal Lambardar and Raj Kumar who are the attesting witnesses of the Will as well. PW1 Ranjit Kanwar, Sub Registrar, has deposed that the original Will Exhibit P-2 is signed by Tarsem Lal and he is well con versant with the signatures of Tarsem Lal as he used to put his signatures on various documents in his presence. PW2 is the plaintiff. PW3 Balwinder Singh is the draftsman who prepared the site plan and PW4 Jiwan Kumar is attorney of the plaintiff. In defence, Will dated 23.06.1968 executed by Ghansham Dass was produced as Exhibit D-l. DW2 Bhim Sain has deposed that Ghansham Dass died leaving behind four sons, five daughters and widow Smt. Rattan Devi. As per Will, Smt. Rattan Devi was allowed to usufruct /maintenance out of the property alone. She is limited owner and not competent to bequeath the property.

5. Learned trial Court relying upon Sellammal and others v. Nellammal (Dead) by LRs A.I.R. 1977 S.C. 1265; Santhanam Kachapalaya Gurukal v. V. Subramanya Gurukal, A.I.R. 1977 S.C. 2024 and Gulwant Kaur and another v. Mohinder Singh and another A.I.R. 1987 S.C. 2251 held that Smt. Rattan Devi became absolute owner of the estate of Ghansham Dass on the basis of Will Exhibit D-l. Thus, she has right to bequeath the property in favour of plaintiff. It was also found that since both the witnesses of the Will are not alive, as per statement of counsel for the plaintiff on 28.07.1995 and the statement of PW4 attorney of the plaintiff, the testimony of Sub Registrar is sufficient proof of execution of the Will. In respect of previous decree in a suit filed by the defendant in the year 1993, it was held that no issue regarding title of the suit property was framed, therefore, judgment and decree, Exhibits D2 and D3 respectively, are not helpful to the defendant. On the basis of such finding, the suit was decreed.

6. The learned First Appellate Court found that in Will Exhibit Dl, Smt. Rattan Devi was given property as "MALIKA BA HAQDAR" i.e., owners as a matter of right. On the basis of said recital, it was held that the property vest in Smt. Rattan Devi as a full owner. The learned First Appellate Court also found that Ranjit Kanwar was personally known to Tarsem Lal. He identified the signatures of Tarsem Lal and that Smt. Rattan Devi had thumb-marked the endorsement i