IMPORTANT POINT
A will can be proved through secondary evidence when attesting witnesses are unavailable, provided the statutory requirements for execution are met.

JUDGMENT :

(Deepak Gupta, J.) :

This Regular Second Appeal is against the concurrent findings of the Courts below, whereby suit for declaration and consequential relief of possession and permanent injunction filed by the plaintiffs (appellants herein) was dismissed on 28.09.1990 by the Trial Court and the appeal filed by them was dismissed by the First Appellate Court on 23.08.1991. To avoid confusion, parties shall be referred as per their status before Ld. Trial Court.

2. The dispute is regarding inheritance of Lalman son of Singh Ram, who was the owner of the suit land situated in Village Kahnaur, Tehsil and District Rohtak. Said Lalman expired on 15.06.1983 leaving behind 06 children, who are parties to this litigation. Four of them, namely, Daya Kishan, Hari Kishan, Maya and Savitri (appellants herein) instituted the suit by claiming that they along with defendant No.2 – Smt. Banti (respondent No.2 herein) are owner in possession of the suit land to the extent of 5/6th share. They challenged the mutation sanctioned in favour of defendant No.1 – Bhim Singh (now respondent No.1 through his LRs) regarding the entire suit land to be null and void. It was further pleaded that in case any Will is alleged to have been executed by Lalman in favour of defendant No.1, the same was null and void and not binding upon the plaintiffs, as Lalman had no authority to execute the Will since suit land was ancestral in nature; that Lalman was an old aged person of feeble mind, not competent to understand the nature of documents and that his signatures might have been obtained on some papers so as to redeem the part of the suit land, which was under mortgage.

3. Defendants contested the suit and set up the registered Will dated 17.05.1976 executed by Lalman in favour of defendant No.1, on which basis mutation No.5228 was sanctioned on 28.05.1985 in his favour; that defendant No.1 was the exclusive owner in possession of the suit land. Prayer was made for dismissal of the suit.

4. Following issues were framed by the learned trial Court:-

“1. Whether the suit land was ancestral in the hand of deceased Lalman qua the parties? OPP

2. Whether the parties are governed by custom in the matters of alienation, if so what that customs is? OPP

3. Whether deceased Lalman executed a valid Will dated 17.5.1976 in favour of defendant No.1? OPD

4. Whether the plaintiffs have not locus-standi to file the suit? OPD

5. Whether the court fee is deficient? OPD

6. Whether the suit is not maintainable in the present form? OPD

7. Relief.”

5. Evidence produced by the parties was taken on record. The trial Court found the suit land to be self acquired property in the hands of Shri Lalman on the basis of revenue record and so, held that he had the authority to bequeath the suit property in favour of anyone he liked. It was further found that there was no evidence to show that the parties were governed by any custom in the matter of alienation, as had been contended by the plaintiffs. It was further found that registered Will dated 17.05.1976 was duly proved to have been executed by Shri Lalman, whereby he had bequeathed the suit property in favour of defendant No.1. Issues No.1 to 3 were accordingly decided. Under Issue No.4, plaintiffs were held to have no locus standi to file the suit and so, issue was decided accordingly. However, finding on issues No.5 and 6 went in favour of plaintiffs. Consequent to all the findings, the suit was dismissed vide judgment dated 28.09.1990. Only two of the plaintiffs approached the First Appellate Court, who affirmed the findings of the trial Court and dismissed the appeal on 23.08.1991.

6. Before this Court, it is contended by learned counsel for the appellants- plaintiffs that Courts below erred in law as well as in facts in holding the Will to have been duly proved; that out of two attesting witnesses of the Will, one namely, Devi Sahai, Nambardar was stated to have expired, whereas the other witness, namely, Bani Singh was not exa