Judgment:
Adarsh Kumar Goel, J.
1. The respondents filed a suit for declaration seeking inheritance to the estate of Budh Singh who died on 26.7.1978, apart from claiming as heirs of Budh Singh. Reliance was placed on Will dated 26.3.1964, Ex.P.I. scribed by Sadhu Ram, PW-1, petition-writer and attested by Amar Singh (who had expired before the trial) and Chuhar Singh, PW-2. It was further stated that Jangir Singh, predecessor of the appellants got mutation sanctioned in his favour on the basis of alleged Will dated 15.10.1977, Ex.D.1, which was fictitious.
2. The defendants contested the suit, denying Will dated 26.3.1964, Ex.P.1. and in the alternative stating that the said Will stood cancelled by Will dated 15.10.1977, Ex.D.1.
3. The trial Court decreed the suit of plaintiff No. 5 by way of natural succession as he was held to be agate but dismissed the suit of plaintiff Nos. 1 to 4 holding that the Will dated 26.3.1964 Ex.P.1. was not proved. It was held that Will dated 15.10.1977 Ex.D.1 was not proved as the attesting witnesses were not produced in spite of several opportunities. It was further held that Dalip Singh attesting witness was not examined for which no satisfactory explanation was given and there was no valid explanation for right hand thumb impression on Will, Ex.D.1 instead of left hand thumb impression. Explanation that Budh Singh was under bandage, was an after-thought and this fact was not mentioned in the Will. Further, in application Ex.PW5/A for mutation, Jangir Singh did not set up the Will. As regards certified copy of statement of Gurdev Singh, Ex.D.2, which was tendered in evidence as it was stated that Gurdev Singh had expired and his statement was admissible under Section 33 of the Indian Evidence Act, 1872 (for short, the Evidence Act), it was held that the same was not enough to prove the Will. Contention on behalf of the appellants that other witnesses had joined hands with the plaintiffs, was also held to be not enough to hold the Will to be proved.
4. On appeal, the lower appellate Court upheld Will Ex.P.1 reversing the finding of the trial Court. It was held that Labh Singh, PW-4 could not be held to have taken active part in execution of the Will by merely accompanying the deceased. It was held that Labh Singh was rendering services to the deceased and Will Ex.P.1 was a registered Will which could not be held to be tainted by any suspicion. Testimony of Sadhu Ram, PW-1 scribe and attesting witness, Chuhar Singh could be relied upon. Endorsement by the Sub Registrar Ex.P1/A was also relied on. Finding of the trial Court that Will dated 15.10.1977 Ex.D.1 had not been proved, was upheld. It was also observed that according to Hazur Singh, DW-2, Budh Singh, deceased had admitted having executed Will Ex.P.1.
5. Learned counsel for the appellants submitted that Will Ex.D.1 should be held to have been proved from the statement of Gurdev Singh, deceased, who was an attesting witness, Ex.D.2, recorded in mutation proceedings which was admissible under Section 33 of the Evidence Act. He further submitted that Will Ex.D.1 was also proved by the evidence of DW-2 Hazur Singh, scribe. It was also submitted that affixing of right hand thumb impression by Budh Singh was duly explained. He further submitted-that evidence of Sadhu Ram who was blind and could not identify his writing, could not have been taken into account as he was not a competent witness. He placed reliance on several decisions:
(i) Chiranji Lal v. Poorna and Ors., AIR 1914 Allahabad 306, Bithaldas and Ors. v. Chandratan, AIR 1955 Rajasthan 39 and Doraiswami v. Rathnammal and Ors., : AIR1978Mad78 to submit that without showing the document to the witness, the document could not be held to be proved:
(ii) Revappa v. Madhava Rao and Anr., A.I.R. 1960 Mysore 97, to submit that in second appeal, interference was permissible when the lower appellate court had discarded the procedure i.e. merely relied upon evidence of the blind witness.
(iii) Mahendra Singh v. Shankar Dayal Singh and Ors., AIR 1936 Allahabad 124 and Darshan Singh v. Sohanjit Singh, 2004(1) RCR(Civil) 105 to submit that evidence in mutation proceedings was covered by Section 33 of the Evidence Act,
(iv) Nikka Singh and Ors. v. Nachhattar Singh and Ors., (1980)82 PLR 308, to submit that beneficiary having signed the Will, the Will was suspicious.
(v) Smt. Kamla Kunwar v. Ratan Lal and Ors., : AIR1971All304 , to submit that generally left thumb impression is to be taken but if the same is defective or injured, the right thumb impression could be affixed.
6. Learned counsel for the respondent-plaintiff submitted that finding of the lower appellate Court that Will Ex.P.1 was proved and the Will Ex.D.I was not proved, was a finding of fact. He submitted that Will Ex.P.1. was duly acknowledged in Ex.D.1 and even otherwise was duly proved by the attesting witness and the scribe and there was no suspicious circumstances,. He submitted that Will Ex.D.1 was unregistered and though, the attesting witness was alive, he was not produced and a suspicious circumstance was pointed out that predecessor of the appellants while seeking to be heard in mutation proceedings did not claim Will Ex.D.1 at the earliest. He further submitted that putting of right thumb impression on Ex.D. 1 should be held to be suspicious when no mention of left thumb being injured was made in the Will itself. He referred to the decision of the Apex Court in P.S. Sairam and Anr. v. P.S. Rama Rao Pisey and Ors., 2004(1) RCR (Civil) 825, wherein putting of thumb impression by a literate person was held to be valid when this fact was mentioned in the Will itself.
7. I have considered the rival submissions and perused the record.
8. Will Ex.P.1 has been held to be duly executed and it has been held that Chuhar Singh, attesting witness could be relied upon since he admitted that he had attested a deed executed by Budh Singh. Scribe of the Will Sahdu Ram, PW-1 who was blind has also been relied upon since he heard the Will which had been scribed by him. The fact that the Will was duly acknowledged in Will, Ex.D.1 set up by the appellants, further supported existence of Ex.P.1. The same could not be held to be suspicious merely on account of Labh Singh, beneficiary having accompanied the testator. The circumstance was held to have been validly explained. Decisions relied upon by the learned counsel for the appellants are distinguishable as the same refer only to general rule that a Will should be shown to the attesting witness or the scribe. It cannot be held that a witness who becomes blind, cannot depose having scribed the Will by hearing the same. There is also no merit in the contention that Will Ex.D.1 should have been held to have been proved from the statement of Gurdev Singh, Ex.D.2. The said Will is unregistered and both the Courts below have relied upon suspicious circumstances of the same having not been mentioned in the earlier application by Jangir Singh and also adverse inference has been drawn for not producing Dalip Singh who was an attesting witness. Even if two views are possible, finding in this regard cannot be held to be perverse.
9. For the above reasons, I do not find any merit in this appeal.
10. No substantial question of law arises. The appeal is dismissed.