The main legal point established is the importance of proving the execution of a Will through attesting witnesses and the genuineness of thumb impressions, as well as the admissibility of secondary evidence under Section 65 of the Evidence Act.

ANIL KSHETARPAL, J.

The defendants-appellants are in the Regular Second Appeal against the judgment passed by the learned First Appellate Court reversing the judgment and decree passed by the learned trial Court.

2. Respondent Nos.1 and 2-plaintiffs filed a suit for declaration and permanent injunction claiming that they are entitled to succeed to the property of Late Sh. Lal Singh, their father and the Will dated 20.08.1997 set up by defendant Nos.1 to 3 and 7 is forged and, therefore, the mutation of the land sanctioned on the basis of the aforesaid Will is also illegal. It may be noticed that Lal Singh left behind widow, three sons and five daughters. Two daughters challenged the Will and the mutation proceedings. Through the alleged Will, the property has been bequeathed in favour of three sons and widow, after noticing that all the daughters have already been married. Not only defendant Nos.1 to 3 and 7, the beneficiaries under the Will supported the Will but three other daughters namely Surjit Kaur, Gurmeet Kaur and Sarabjit Kaur, daughters of Late Sh. Lal Singh also admitted that the Will was executed by their late father Lal Singh. It was further contended in the written statement that all the sisters were present when the mutation proceedings were sanctioned on 11.07.2000 on the basis of the Will.

3. Learned trial Court recorded a finding that the execution of the Will is proved as attesting witness namely Sant Ram and scribe Kamal Kumar have been examined.

4. Learned trial Court also dismissed the suit on the ground that the plaintiffs have not sought the possession and, therefore, the suit was barred as per proviso of Section 34 of the Specific Relief Act, 1963. (However, the aforesaid reasoning is not correct as the plaintiffs in case of declaration having been granted, would at the most be entitled to the share in the property and, therefore, the relief of possession could not be sought for).

5. The plaintiffs filed the first appeal.

6. Learned First Appellate Court has chosen to reverse the finding of the learned trial Court while observing that the Will is surrounded by suspicious circumstances. The suspicious circumstances, noticed by the Court are:-

1. The original Will-testamentary document has not been produced.

2. The testamentary document is not scribed by a professional scribe.

3. The thumb impressions of the Executor and the attesting witnesses do not have any marking, whether such thumb impressions are of left hand or of right hand and the thumb impressions are super-imposed.

4. The Will is unregistered.

5. The evidence of the attesting witness i.e. Sant Ram, Lambardar of the Village is shaky inasmuch as he has stated that Lal Singh died 8-9 years after the execution of the Will and he was not present at the time of sanctioning of the mutation.

7. This is how, defendant Nos.1 to 4 are in the Regular Second Appeal.

8. This Court has heard the learned counsel for the parties at length and with their able assistance gone through the judgments passed by the Courts below and photocopy of the record provided by the learned counsel for the parties, correctness whereof is not being disputed by the parties.

9. The following substantial questions of law arise in the present case for determination by this Court:-

(i) Whether the Courts are justified in treating the non-registration of the Will as a suspicious circumstance?

(ii) Whether the plaintiff who would not be entitled to delivery of actual physical possession of the property even if the suit is decreed, is required to seek further relief of possession which cannot be granted?

10. At the outset, it must be noticed that although original Will has not been produced but a reading of the judgment passed by the learned trial Court proves that an application for permission to produce the photocopy of the Will by way of secondary evidence was filed and the learned counsel for the plaintiffs had suffered a statement that he has no objection, if the application under Sectio