The mandatory requirements of Section 69 of the Indian Evidence Act, 1872 must be fulfilled to prove the validity of a Will.

JUDGMENT

Anil Kshetarpal, J. - The defendant No.1 to 3, in a suit for grant of decree of declaration to the effect that the plaintiff is a co-sharer in the joint possession of the suit land, assail the correctness of the judgments and decrees passed by both the courts below.

2. After having heard the learned counsel representing the parties, at sufficient length, this Court is of the considered view that the following question arises for consideration:-

'Whether the alleged Will dated 04.11.1996 has been proved in accordance with Section 68 and 69 of the Indian Evidence Act, 1872 (hereinafter referred to as 'the 1872 Act')?

3. Some facts are required to be noticed. Late Sh. Mohan Singh was unmarried. He died on 01.12.1996. He had five siblings, namely, Sh.Sohan Singh and four sisters including Smt.Paramjit Kaur (the plaintiff). When Sh.Mohan Singh died, his mother Smt. Pritam Kaur inherited his property as per natural succession. Smt.Pritam Kaur, hereinafter, bequeathed the property in favour of Sh.Kulwant Singh son of Sh. Sohan Singh vide a registered Will dated 23.07.1997. Smt. Paramjit Kaur alias Gurmej Kaur filed a suit on 22.02.2001 alleging that late Sh. Mohan Singh had bequeathed the entire property in her favour through an unregistered Will dated 04.11.1996.

4. The plaintiff, in order to prove the Will, has examined PW.3 Sh.Pardeep Kumar Sharma, Scribe, PW.4 Sh.Jarnail Singh son of late Sh.Mohan Singh (the alleged attesting witness) and PW.5 Sh.Rabinder Singh (Sh.Rabinder Singh is not a signatory of the alleged Will). A translated copy of the Will has been produced and it is evident that Sh.Jaswinder Singh and Sh.Avtar Singh have signed the Will as the attesting witnesses, Sh.Mohan Singh and Sh.Harminder Singh have also signed the Will.

5. The trial Court decreed the suit while observing that the Will dated 04.11.1996 has been proved by examining the scribe as well as Sh.Jarnail Singh, son of the attesting witness. The trial Court, however, observed that the registered Will, executed by Smt. Pritam Kaur in favour of Sh.Kulwant Singh, has not been proved. However, in the later part of the judgment, the trial Court has held that there is no requirement of giving findings on the aforesaid Will as the Will dated 04.11.1996 has been proved.

6. The First Appellate Court has dismissed the appeal.

7. Heard the learned counsel representing the parties, at length and with their able assistance, perused the judgments passed by both the Courts below as well the records, which was requisitioned.

8. The learned senior counsel representing the appellants contends that the Will has not been proved in accordance with either Section 68 or 69 of the 1872 Act. He submits that there is no evidence to prove that Sh.Jaswinder Singh, Sh.Avtar Singh and Sh.Harminder Singh are not alive or not available. He further contends that the Will has not been proved even in accordance with the provisions of Section 69 of the 1872 Act as the signatures of the executant (testator) have not been identified by independent evidence. He submits that at the most, Sh.Jarnail Singh has identified the signatures of his father Sh.Mohan Singh, Sarpanch (one of the attesting witness).

9. Per contra, the learned counsel representing the respondent No.1 contends that the Will has been proved on examination of the scribe as well as Sh.Jarnail Singh.

10. It is noted here that the First Appellate Court has not recorded any conclusive finding with regard to the validity of the registered Will dated 23.07.1997, executed by Smt. Pritam Kaur in favour of Sh.Kulwant Singh.

11. At this stage, it is considered appropriate to extract Section 68 and 69 of the 1872, which read as under:-

'68. Proof of execution of document required by law to be attested.- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been calledfor the purpose of proving its execution, if there be an attesting witness alive, and subject to the process