IMPORTANT POINT
Section 63 of Succession Act deals with mode of execution of unprivileged Wills, and says that every testator shall execute his sale-deed in accordance with rules.

U.C. Dhyani, J.—Plaintiff-respondent filed an Original Suit No. 209/2010 against the defendant-appellants for cancellation of sale-deed in the Court of Civil Judge (J.D.), Roorkee. The defendants contested the suit. On the basis of pleadings of the parties, the following issues were framed:

(i) Whether the sale-deed dated 15.9.2008 is liable to be cancelled on the basis of reasons assigned in the plaint?

(ii) To what relief, if any, is the plaintiff entitled?

(iii) Whether late Raghunath Singh executed a valid Will in favour of plaintiff on 12.1.2000? If so, its effect?

2. Plaintiff examined himself as PW 1 alongwith PW2 Surender Kumar (attesting witness of the Will). Two witnesses, namely, DW1 Rajendra Singh and DW2 Ishwar Dayal were examined on behalf of the defendants. Documentary evidence was also filed by the parties.

3. After taking into account the oral and documentary evidence led by the parties, learned Trial Court held that since the Will was executed by Dr. Raghunath Singh in favour of the plaintiff and, therefore, defendant No.2 had no competence to execute the sale-deed. The suit was, therefore, decreed with costs. The registration of sale-deed dated 15.9.2008, which was registered in Sub-Registrar, Roorkees office was canceled, vide judgment and decree dated 20.7.2011.

4. Aggrieved against the same, a civil appeal was preferred by defendants before the Lower Appellate Court. The Lower Appellate Court also considered the submissions of learned Counsel for the parties, perused the documents on record and finally dismissed the appeal affirmed the judgment and decree passed by the Trial Court.

5. Still aggrieved against the same, the present second appeal is filed on behalf of the defendants-appellants, being aggrieved against the concurrent judgments of two Courts below.

6. The following substantial questions of law were framed by this Court:

“1. Whether the Will dated 12th January, 2000 executed by Raghunath Singh has been executed and proved in accordance with Section 63 of Indian Succession Act and Section 68 of the Evidence Act?

2. Whether the Court below committed an error in cancelling the sale-deed dated 15th September, 2008 executed by the appellant in favour of his wife?”

7. In order to prove the Will executed by Raghunath Singh, it was brought on record that one Shri Kamlesh Rana, Advocate, was the scribe of the Will which was, written in presence of Surendra Singh s/o. Chaman Singh and Sanjeev Kumar s/o Sadhu Ram, Surendra Singh the attesting witness has been examined before the Trial Court as PW2. PW2 stated that he knew Dr. Raghunath Singh, who was homeopathic medical officer. On 12.1.2000, as per the wishes of Dr. Raghunath Singh, one Shri Kamlesh Rana, Advocate of Roorkee wrote the Will. In other words, Shri Kamlesh Rana, Advocate was the scribe of the Will. After writing the Will, the contents of the same were read over to the testator of the Will, who appended his Signatures on the same in presence of PW2 and Sanjeev Kumar. PW2 identified his Signatures as well as of that testator of the Will. PW2 further stated that he was called by Dr. Raghunath Singh at his residence where Sarvajeet, Ranjeet, Rajendra, Sanjeev and Kamlesh Rana were already present. Dr. Raghunath Singh appended his Signatures on the Will in his (PW2s) presence. Although, the scribe of the Will was not examined before the Trial Court, but he was examined by Tehsildar in mutation proceedings as is evident from the certified copy of the statement of Shri Kamlesh Rana (scribe of the Will). The judgment rendered by Tehsildar, Roorkee given in the matter between Rajendra and others v. Raghunath Singh in proceedings under Section 334 of Land Revenue Act is brought on record.

8. It was held by Hon’ble Supreme Court in Ramabai Padamakar Patil (dead) through LRs. and others v. Rukminibai Vishnu Vekhande and others, 2003(53) ALR 125 that the Will is required to be proved by examining at least one attesting witness under section