Point of Law
Will cannot be regarded as proved going by the findings recorded by the Courts below, as those Courts being Courts of fact, were under an obligation to call an expert to determine the genuineness of the signatures of the testator on the will, once the bequest was disputed by the defendant.

JUDGMENT :

1. This is a defendant's second appeal. The plaintiff-respondents (for short, ‘the plaintiffs’) instituted O.S. No. 63 of 1983 in the Court of Munsif, Amroha, District Moradabad against the four defendants, seeking relief of permanent prohibitory injunction, to the effect that respondent Nos. 2 and 3 be restrained perpetually from delivering possession of the suit property to defendant Nos. 1 and 4 and to maintain status quo on the spot. The Trial Court, vide judgment and decree dated 22.02.1992 decreed the suit restraining defendant Nos. 1 and 4 from interfering with the plaintiffs’ possession over the suit property. Defendant Nos. 2 and 3 were declared tenants in the said property and were ordered by the decree to attorn the plaintiffs as their landlords. A declaration was also made in those terms. The sole appellant, Smt. Chandrawati, who was defendant no. 1 to the suit, is hereinafter referred to as ‘the defendant’. The plaintiff-respondents, who are arrayed here as plaintiff-respondents first set, are hereinafter referred to as ‘the plaintiffs’. Defendant nos. 2 and 3, who are arrayed as respondent Nos. 5 and 6 in the second set, shall be hereinafter referred to as ‘defendant nos. 2 and 3’. The defendant No. 4 to the suit Usman Ali, Advocate here arrayed as respondent No. 7 in the second set, shall be hereinafter referred to as ‘defendant No. 4’.

2. Aggrieved by the aforesaid decree, the defendant carried an appeal to the District Judge, Moradabad where it was registered as Civil Appeal No. 137 of 1992. Upon assignment, it came up for determination before the Court of the 4th Additional District Judge, Moradabad, who by the impugned judgment and decree dated 12th March, 1996, dismissed the defendant's appeal with costs and affirmed the Trial Court.

3. Aggrieved, this appeal from the appellate decree has been filed.

4. This appeal was admitted to hearing on the following substantial questions of law:

1. whether the will dated 26.10.1979 alleged to have been executed by Abdul Mueed in favour of Farhan Khan was proved in accordance with law. If not its effect?

2. Whether will dated 26.10.1979 can be made the basis of the suit without getting probate for the same?

3. Whether the courts below could act as an Expert and tally the signature of the plaintiff-respondents by themselves?

4. Whether the courts below have gone beyond the relief sought and made declaration which would not have been pleaded or proved by the plaintiff-respondents?

5. The hearing in this appeal commenced on 29.01.2020 when Sri J.S. Pandey, Advocate holding brief of Sri Tarun Varma, learned counsel for the appellant addressed the Court on behalf of the appellant. No one appeared on behalf of the respondents. Accordingly, this appeal has proceeded ex parte. It was heard on 29.01.2020, 21.01.2020 and today. At the hearing, Sri J.S. Pandey has confined his submissions to two substantial questions of law that is to say questions Nos. 2 and 3 extracted supra. Now, the suit giving rise to this appeal appears to have been instituted in the Court of Munsif, Amroha for a permanent prohibitory injunction in terms indicated hereinbefore.

6. The plaintiffs came with a case that one Abdul Mueed Khan was owner in possession of the suit property detailed at the foot of the plaint. Abdul Mueed Khan died issueless. It was the plaintiff's case that Abdul Mueed Khan, during his lifetime, had executed a will bequeathing the suit property in favour of one Farhat Khan on 26.10.1979. Upon death of the testator, succession opened in favour of Farhat Khan in terms of the bequests and Farhat Khan thus became owner and entered possession of the suit property. After the decease of Farhat Khan, the plaintiffs became owners of the suit property by interstate succession, being his heirs under the law. Defendant Nos. 2 and 3 were claimed to be in actual physical possession of the suit property as tenants of the testator, Abdul Mueed Khan, and after his death, they were said to have bec