Will--Execution of--Appellant examined an attesting witness of the Will--However, original Will not shown to attesting witness--Consequently, execution of the original Will is not proved.

Mr. L.N. Mittal, J. (Oral) - CM No. 4260.C of 2012

Allowed as prayed for.

CM No. 4261.C of 2012

The application is allowed and Annexures P/1 to P/6 are taken on record subject to all just exceptions.

ESA No. 17 of 2012

Sunil Kumar objector having failed in both the courts below has filed this execution second appeal.

2. Suit filed by respondent no. 1 - plaintiff Central Bank of India against respondents no. 2 to 6 was decreed for recovery of money. Respondent no. 1 decree holder (DH) filed execution petition against respondent nos. 2 to 6 (Judgment Debtors – JDs) for execution of the decree. In execution proceedings, the disputed property was attached.

3. Appellant herein filed objections against attachment of the disputed property alleging that JDs have no right, title or interest in the disputed property. Appellant’s grand mother Ved Kumari (mother of respondents no. 4 and 5/JDs) had purchased the disputed property vide sale deed dated 20.7.1942 and became owner in possession thereof. She executed Will dated 26.8.1987 in favour of objector – appellant. She died on 11.2.1989 and thereupon objector appellant became absolute owner in possession of the property. Consequently, the same could not be attached in execution proceedings against JDs. It was also pleaded that the disputed property being residential property is exempted from attachment under section 60 of the Code of Civil Procedure (in short, CPC).

4. Respondent no. 1 – decree holder by filing reply resisted the objections filed by the objector. Averments made by the objector were controverted. Various other pleas were also raised.

5. Learned executing court i.e. learned Additional Civil Judge (Senior Division), Jalandhar vide order dated 29.9.2009 dismissed the objections preferred by the appellant. Appeal against the said order preferred by objector has been dismissed by learned Additional District Judge, Jalandhar vide impugned judgment dated 13.12.2011. Feeling still aggrieved, objector has filed this second appeal.

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

7. Whole claim of the appellant is based on two documents i.e. sale deed dated 20.7.1942 and Will dated 26.8.1987. However, both these documents have not been proved. The appellant examined official of Sub Registrar to prove the copy of alleged sale deed dated 20.7.1942. However, the original sale deed dated 20.7.1942 has not seen the light of the day. Certified copy thereof cannot be admitted in evidence without seeking permission for secondary evidence. No such permission was sought. Even otherwise, official of Sub Registrar could not prove the execution of the sale deed. No witness or scribe of the sale deed or vendor or vendee has been examined to prove the sale deed. Original sale deed being more than 30 years old could be per se admissible in evidence, but its certified copy is not per se admissible in evidence. Thus, original sale deed has not been produced nor its execution has been proved. Certified copy of the sale deed is not admissible in evidence. Therefore, whole claim of the appellant falls to the ground.

8. Will dated 26.8.1987 allegedly executed by Ved Kumari in favour of appellant – objector has also not been proved. The appellant examined Satpal, an attesting witness of the Will, as witness in support of his case. However, original Will is not shown to Satpal. Consequently, execution of the original Will is not proved. On the other hand, Satpal stated that he had not seen the original Will. He had lastly seen the Will in the year 1997. In absence of original Will, its copy cannot be said to have been proved by examination of Satpal OW1 when the original Will was not even shown to him. The contention of counsel for the appellant that original Will was later on produced in the executing court does not help the appellant in any manner because only the attesting witness Satpal could have proved the execution of original Will but it was not shown to him. T