L.N. Mittal, J. (Oral) :- CM No.6625-C of 2011

Allowed as prayed for.

CM No.6626-C of 2011

For reasons mentioned in the application which is accompanied by affidavit, delay of 36 days in re-filing the appeal is condoned.

Main Appeal.

2. Plaintiff-Harpal Kaur, having been non-suited by both the Courts below, has come up by way of instant second appeal.

3. Plaintiff-appellant filed suit seeking declaration that she is owner in possession of the suit land in view of Will dated 10.11.1980 executed by her father-in-law Bakhtawar Singh, who died on 01.11.1985. Defendant No.1 is husband of the plaintiff-appellant and is son of deceased Bakhtawar Singh. However, inheritance mutation of the deceased was sanctioned in favour of his widow Bhagwan Kaur and defendant Nos.1 to 3 and Gurdev Kaur mother of defendant Nos.4 to 6 i.e. on the basis of natural inheritance. Defendants failed to defend the suit and were proceeded ex parte.

4. Learned Additional Civil Judge (Senior Division), Dabwali vide judgment and decree dated 22.10.2008 dismissed the plaintiff’s suit. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Sirsa vide judgment and decree dated 14.01.2011. Feeling aggrieved, plaintiff has filed the instant second appeal.

5. I have heard learned counsel for the appellant and perused the case file.

6. Plaintiff has been rightly non-suited by the Courts below for various reasons. The will is completely unreliable and has been rightly discarded by the Courts below. Lower appellate Court has recorded so many reasons in detail to discard the said Will. At the outset, it has to be noticed that under Section 63 of the Indian Succession Act, 1925, the Will is required to be attested by at least two witnesses. Consequently, in view of Section 68 of the Evidence Act (in short, the Act), at least one attesting witness has to be examined to prove the Will. However, none of the attesting witnesses of the Will has been examined by the plaintiff on the plea that both attesting witnesses of the Will had since died. Takdirjit Singh PW-2 is son of Balwant Singh an attesting witness of the Will. He made oral statement that both attesting witnesses of the Will i.e. Balwant Singh and Surjit Singh had since died. He also identified the signatures of his father Balwant Singh attesting witness of the Will. However, no documentary evidence was placed on record to depict that both attesting witnesses of the Will had since died. Oral statement of Takdirjit Singh in this regard was held to be insufficient.

7. To fill the aforesaid lacuna, plaintiff filed application for additional evidence in first appeal to place on record death certificates of Balwant Singh and Surjit Singh. The said application has been dismissed by the lower appellate Court. However, even if the said application is allowed, it would not serve the required purpose because even then the Will cannot be held to be proved. Section 69 of the Act stipulates that if no such attesting witness can be found, it must be proved that the attestation of one attesting witness at least is in his handwriting and also that the signature of the person executing the document is in the handwriting of that person. Even if it is assumed that both attesting witnesses of the Will had since died, only first part of Section 69 of the Act would be satisfied by the testimony of Takdirjit Singh PW-2, who proved the signatures of his father Balwant Singh an attesting witness of the Will. However, nevertheless, second requirement of Section 69 of the Act has not been satisfied by the plaintiff. It has not been proved that the Will has been signed or thumb-marked by the testator Bakhtawar Singh. To overcome this lacuna, learned counsel for the appellant contended that Tej Bhan, Deed Writer PW-3, who scribed the Will, has stated that the Will was signed/thumb-marked by the testator Bakhtawar Singh. The contention although attractive on first blush cannot be accepted to meet the