JUDGMENT

Anil Kshetarpal, J. - This judgment shall dispose of RSA Nos.2939 and 3018 of of 2008 arising from a suit. In the considered opinion of this court following substantial questions of law arise for consideration.-

"(a) Whether a testament-unprivileged Will is required to be attested by only 2 attesting witnesses, not more, and whether evidence of attesting witness who is not amongst first 2 attesting witnesses is to be ignored while deciding the issue of proof of the Will?

(b) Whether it is permissible to reply upon the documents which neither exhibited nor proved?

(c) Whether the judgment passed by the first appellate court is result of misreading of evidence?"

FACTS

2. Late Sh. Chandan, who died in the year 1976, was owner of the property. He was having 4 daughters apart from wife but no son (male child). It is alleged by the defendants that he executed a testament (Will) dated 21.08.1975 Ex.Dl bequeathing his entire property in favour of Inder Singh, defendant-appellant alleged adopted son. Inder Singh is natural son of Bhagwan, who was brother of Chandan. It is alleged to have been thumb marked by Chandan. The testament is also thumb marked by three daughters ( who were major at the relevant time) and wife of Chandan. The testament is also thumb marked and signed by Saroop Singh, Ganeshi Nambardar, Sobha Ram, Roop Chand and Kartar Singh. In the Will, Inder Singh was recorded/recited as adopted son of the testator-Chandan. As per mutation entered in the year 1979, it is written that he died approximately one year before entering the mutation. However, the date of death of Chandan is not of much significance. On the death of Chandan, mutation of the property which is in three small parts situated in three adjoining different villages was sanctioned in favour of wife-Dharmo and three daughters-Basanti, Vidya and Ishwanti.

3. Inder Singh had filed a suit on 17.02.1979 as adopted son of Chandan against Smt. Dharmo, widow, Smt. Basanti, Smt. Vidya and Smt. Ishwanti daughters of Chandan in which defendants admitted the claim and suffered statement in judgment and decree dated 23.02.1979 Ex.P7 and Ex.P8. At this stage, it may be noted that copy of the plaint, written statement and statements of the defendants are neither exhibited nor proved in accordance with law, however, they are part of the record. It has also come on record that pursuant to the judgment and decree, entries in the revenue record were changed and Inder Singh, defendant-appellant was recorded as owner in possession of the suit land. Smt. Dharmo i.e widow of Chandan also died.

4. The present suit was filed by four daughetrs of Chandan Basanti, Vidyawati, Yashwanti (although referred to as Ishwanti) and Sumitra against Inder Singh claiming declaration with consequential relief of permanent injunction. It is claimed that on the death of Chandan, natural heirs i.e widow and four daughters became owners. Defendant-Inder Singh is their cousin given land on lease but had not paid lease money from crop Rabi 1995 and claims to be owner. On further investigation it was found that on the basis of a false and incorrect decree, revenue record has been changed. Thus, the plaintiffs claimed that such judgment and decree dated 23.02.1979 is illegal and void.

5. Defendant-Inder Singh filed written statement contested the suit and pleaded that he was adopted by late Sh. Chandan. He also relied upon the Will dated 21.08.1975 executed by Chandan. He further pleaded that the suit filed by the plaintiffs is barred by time. He has further pleaded that he has been giving customary gifts at the time of marriage of the daughters of Basanti and Vidya. He has also got performed marriage of Sumitra in the year 1985. Plaintiffs in order to prove their case examined PW1 Balbir Singh, PW2 Sumitra, PW3 Raj Kumar (husband of Sumitra) and PW4 Vidyawati. It may be mentioned here that during the pendency of the suit major part of the suit land, was sold and purchasers were impleaded as defend