Will--Attestation of--Scribe specifically stated that the executant was not personally known to him--Scribe cannot be treated be attesting witness.

Mr. L. N. Mittal, J.: (Oral) - CM No.10475-C of 2012

For reasons mentioned in the application, which is accompanied by affidavit of the counsel, delay of 32 days in refilling the appeal is condoned.

The application stands allowed accordingly.

CM No.10476-C of 2012

This is application for impleading legal representatives of defendant No.3-Pahlu Ram, since deceased. It is alleged in the application that the defendant No.3 has left behind two sons and two daughters (respondents No.3 to 6) as his only legal representatives. The application is accompanied by affidavit. Accordingly the application is allowed, subject to all just exceptions and respondents No.3 to 6 are ordered to be impleaded as legal representatives of defendant No.3-Pahlu Ram, since deceased for the purpose of this appeal.

CM No.10477-C of 2012

Allowed as prayed for.

Main Case

1. Plaintiff Ram Kishan having partly lost in both the Courts below has filed this second appeal.

2. The dispute relates to inheritance of suit land from Roshan. The suit was filed on 13.02.2004. Case of the plaintiff-appellant is that Roshan was not heard of for 25 years preceding the filing of the suit and was presumed to have died. Plaintiff claimed ownership and possession of the suit land on the basis of Will dated 07.10.1977 allegedly executed in his favour by Roshan.

3. Defendants No.2 and 3 contested the suit whereas defendant No.1 is general public.

4. It was pleaded that Roshan Lal was not heard of for more than 40 years. Will dated 07.10.1977 set up by plaintiff was controverted. Defendants No.2 and 3 claimed to be in cultivating possession of the suit land.

5. Learned trial Court partly decreed the suit holding that Roshan is presumed to have died. However, suit regarding the remaining relief stands dismissed. Lower appellate Court has upheld the judgment and decree of the trial Court by dismissing the first appeal preferred by the plaintiff, who has, therefore, filed this second appeal.

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

7. In order to prove the impugned Will, the plaintiff has examined scribe of the Will and finger print expert, who has opined that thumb impressions of Roshan on the impugned Will match with his standard thumb impressions on a sale deed.

8. Counsel for the appellant contended that the question whether scribe can be treated as attesting witness of the Will or not is a substantial question of law, which is required to be determined in second appeal. Reliance in support of this contention has been placed on judgment of Hon’ble Supreme Court in the case of Bhag Singh versus Jaskirat Singh & others, [2010(1) Law Herald (SC) 119 : 2010(1) Law Herald (P&H) 162 (SC)] : 2010(2) SCC 250. It was also contended that the Will is duly proved by examination of scribe and finger print expert. Reliance has been placed on judgment of Hon’bel Supreme Court in the case of Babu Singh & others versus Ram Sahai @ Ram Singh, [2008(3) Law Herald (P&H) 1898 (SC)] : 2008(3) Civil Court Cases 509 (SC).

9. I have carefully considered the aforesaid contentions but the same cannot be accepted. No attesting witness of the Will has been examined although Imrat an attesting witness of the Will is still alive. According to Section 63 of the Indian Succession Act, 1925, a Will is required to be attested by at least two witnesses. According to Section 68 of the Evidence Act, where a document is required by law to be attested, it cannot be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. Combined effect of both these provisions is that at least one attesting witness of the Will if alive had to be examined to prove its execution. It has come in evidence that Imrat an attesting witness of the Will is alive, but has not been examined to prove the execution of the Will. Consequently mandatory provision of Section 68 of the Evidence Act read with Section 63 of the Indian Succession Act has no