M.M. Kumar, J.
1. This is plaintiffs appeal filed under Section 100 of the Code of Civil Procedure 1908 (for brevity, 'the Code') challenging concurrent findings of fact recorded by both the courts below holding that the Will Ex-D-5 dated 12.6.1982 executed by Harbhajari Singh in favour of the defendant-respondents which is registered document, does not suffer from any legal infirmity and has been duly proved by the defendant-respondents. The findings of the trial court on the question of validity of general power of attorney (Ex-P6=Ex-D1) dated 8.10.1993 holding that it was validly executed has been upheld by the learned lower appellate court. However, the judgment and decree Ex.P3 and P4 suffered by the Power of Attorney in favour of other defendant-respondents have been declared illegal for want of registration under Section 17 of the Registration Act, 1908 (for brevity, 'the Registration Act').
2. There was one Kharak Singh who had three sons S/Sh. Hari Singh, Gurcharan Singh and Harbhajan Singh. The plaintiff-appellants are successor in interest of Hari Singh whereas the defendant-respondents are successor-in-interest of Gurcharan Singh. Harbhajan Singh the third brother died unmarried and issueless. Whereas the other two brothers Hari Singh and Gurcharan Singh had children who are litigating to claim the property of Harbhajan Singh. It is admitted position that the possession of the suit land is with the defendant-respondents. The basis of their possession is Mutation No. 1386 dated 20.11.1993 which in turn has been entered on account of a judgment and decree dated 20.10.1993 (Ex.P3 and P4) in favour of defendant-respondents. The decree was suffered by Gurmeet Singh defendant-respondent, one of the sons of Gurcharan Singh (who was constituted as a general power of attorney by Harbhajan Singh) in favour of other defendant-respondents. The trial Court however did not accept the judgment and decree because the decree was not registered under Section 17 of the Registration Act. The learned lower Appellate Court, however, did not feel the necessity of any registration of such a decree as it was concluded that the same was based on pre-existing rights of the panics. The view of the lower appellate court on the aforementioned issue reads as under:
16. It is manifestly clear from the very statement of plaintiff Puran Singh that late Harbhajan Singh had actually executed the impugned general power of attorney in favour of Gurmeet Singh and that the factum of execution of the document was very much within the knowledge of the plaintiff/appellants. Neither of the two witnesses has deposed about the alleged fraud played upon late Harbhajan Singh by Gurmeet Singh while obtaining the general power of attorney Ex.P6 = Ex.D1. The execution of the document stands proved from the very statement of plaintiff Puran Singh. It cannot be said that the plaintiffs have been able to prove, on the strength of their evidence, that since late Harbhajan Singh was in illiterate ruralite, he never intended to authorize his attorney to transfer the land in favour of defendants No. 1 to 5.
21. In the instant case, the predecessor-in-interest of the plaintiffs as well as the defendants were equi-related to late Harbhajan Singh. The latter was a bachelor, who did not ever desire a child meaning thereby that the property was to devolve upon the heirs of his pre-deceased brothers namely late Hari Singh and late Gurcharan Singh. Since the defendants are the grand sons of late Gurcharan Singh, they definitely had a pre-existing right in the property and the decree was definitely not registrable. The impugned judgment and decree are valid documents which were rightly acted upon by the revenue authorities while sanctioning mutation No. 1386 on 20.11.1993, The plaintiffs have no case at all on that count.
3. Both the courts below have also found that the Will dated 12.6.1982 executed by late Harbhajan Singh Ex. D5 has been duly proved by the defendant-respondents. The testator Harbhajan Singh has been proved to be living with the family of defendant-respondent namely Gurmeet Singh. The aforementioned fact has been proved by producing the ration card and voter list. The testator in fact died at his house. The scribe of the Will Shiv Kumar has died and his son Nihal Chand DW-3 had testified that the Will Ex. D5 was scribed by his father Shiv Kumar. He identified his signatures. Even the names of the witnesses had been recorded by the scribe in his own hand. DW-7 Pala Singh who is attesting witness of the document also testified that the contents of the documents were read over and explained to the testator who executed the document in his presence. He further stated that he attested the document as a witness in the presence of the testator. The Will was executed when the testator was in his early 50s and having sound disposing mind. Furthermore, the Will is a registered document and the fact of registration deserved to be given due weight on account of Section 60 of the Registration Act. The courts below have rejected the argument that participation of beneficiary in the execution of the will has vitiated the same and that the second attesting witness should have been examined. Similarly, deprivation of the other heir, namely, plaintiff-appellants from the will Ex.D-5 has also not been accepted to be suspicious circumstance because the plaintiff-appellants as well as the defendant-respondents are equally related to the testator being his nephews.
4. Mr. Rakesh Gupta, learned Counsel for the plaintiff-appellant made an attempt to pursuade me to accept his argument that the Will suffered from various suspicious circumstances. He also made an effort to argue that the absence of the second attesting witness would render the Will Ex. D5 as invalid. It cannot be presumed that the Will has been executed in accordance with law. Another argument was also raised that the judgment and decree dated 20.10.1993 Ex.P3 and P4 also suffered from legal infirmity of lack of registration.
5. Having heard the learned Counsel at some length, I am of the considered opinion that no interference of this Court in the concurrent findings of fact would be warranted. The Will Ex.D5 dated 12.6.1982 (1983 ?) is a registered document which has been duly proved by the statement made by the son of scribe. He has proved in unequivocal terms that the Will was scribed by his father and the names of the attesting witnesses have also been written in the hand writing of his father. The statement of Nihal Chand DW-3 son of scribe Shiv Kumar has been accepted because he had been seeing his father signing and scribing the documents. The Will has further been proved by the statement made by one of the attesting witness Pala Singh who has appeared as DW-7. He has testified that the contents of the Will were read over and explained to late Harbhajan Singh and thereafter he signed and accepted the document in his presence. He further stated that he also attested the document as a witness in the presence of the testator. It has further been proved by Pala Singh that the other attesting witnesses has also signed in his presence. The Will has been proved in accordance with requirement of Section 68 of Evidence Act, 1872 (for brevity, 'Evidence Act') read with Section 63(c) of the Indian Succession Act, 1925 (for brevity, 'Succession Act')
6. Once a will has been proved in accordance with the aforementioned provisions, furnishing of proof of any suspicious circumstances is on the shoulder of the plaintiff-appellant who has challenged the validity and genuineness of the will. It is now well settled that mere exclusion of a close relation like son or daughter from the benefits of testamentary presents cannot be regarded as a suspicious circumstance in the face of the finding that the testator has bequeathed his estate to the beneficiary out of services rendered by them. In the present case, it is proved on record that the testator was living with the defendant-respondents at the time of his death. In this regard reliance may be placed on the observes made by the Supreme Court in the case of Ramabai Padmakar Patil (Dead) through L.Rs. and Ors. v. Rukminibai Vishnu Vekhande and Ors. : AIR2003SC3109 . It is equally well settled that there is no need to examine both the attesting witnesses as long as the examination of one of the two attesting witnesses has proved the will according to the requirements of Section 68 of the Evidence Act and Section 63(c) of the Succession Act. The judgment of the Supreme Court in Ramabai Padmakar Patil's case (supra) has also dealt with the aforementioned legal position The same view has been taken by the Supreme Court in the case of Janki Narayan Bhoir v. Narayan Namdeo Kadam : [2002]SUPP5SCR175 . In paragraph 10 of the aforementioned judgment, the law has been discussed after making reference to the provisions of Section 68 of the Evidence Act and Section 63(c) of the Succession Act. The aforementioned observations of the Supreme Court read as under:-.On a combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act, it appears that a person propounding the will has got to prove that the will was duly and validly executed. That cannot be done by simply proving that the signature on the will was that of the testator but must also prove that attestations were also made properly as required by Clause (c) of Section 63 of the Succession Act. It is true that Section 68 of the Evidence Act does not say that both or all the attesting witnesses must be examined. But at least one attesting witness has to be called for proving due execution of the will as envisaged in Section 63. Although Section 63 of the Succession Act requires that a will has to be attested at least by two witnesses, Section 68 of the Evidence Act provides that a document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been examined for the purpose of proving its due execution if such witness is alive and capable of giving evidence and subject to the process of the court. In a way, Section 68 gives a concession to those who want to prove and establish a will in a court of law by examining at least one attesting witness even though the will has to be attested at least by two witnesses mandatorily under Section 63 of the Succession Act. But what is significant and to be noted is that one attesting witness examined should be in a position to prove the execution of a will. To put in other words if one attesting witness can prove execution of the will in terms of Clause (c) of Section 63 viz. Attestation by two attesting witnesses in the manner contemplated therein, the examination of the other attesting witness can be dispensed with. The one attesting witness examined, in his evidence has to satisfy the attestation of a will by him and the other attesting witness in order to prove there was due execution of the will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attestation of the will by the other witness also it falls short of attestation of will at least by two witnesses for the simple reason that the execution of the will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under Section 63 of the Succession Act....
Similar is the view expressed by the Supreme Court in paras 17, 19,20 arid 21 of the judgment in the case of Bhagat Ram and Anr. v. Suresh and Ors. : AIR2004SC436 ; in para 13 of the judgment of the Supreme Court in the case of P.S. Sairam and Anr. v. P.S. Rama Rao Pissey and Ors. 0085/2004 : AIR2004SC1619 and in para 18 of the judgment of the Supreme Court in the case of Sridevi and Ors. v. Jayaraja Shelly and Ors. 0065/2005 : AIR2005SC780 .
7. Thus, there is no ground to interfere with the findings recorded by both the courts below on the aforementioned issue. The general power of attorney Ex.P6 dated 8.10.1993 has also been proved on record by cogent evidence adduced by the defendant-respondents. Therefore, I do not find any substance in the arguments raised by the learned Counsel for the plaintiff-appellant.
8. The position is the same with regard to the judgment and decree dated 20.10.1993 Ex.P3 and P4 respectively. It has also been disputed that the defendant-respondents are in possession of the suit land on the basis of mutation dated 20.11.1993. The judgment of the Supreme Court Bhoop Singh v. Ram Singh Major and Ors. (1996-1)112 P.L.R. 559 (S.C.) would not be applicable to the facts of the present case because the defendant-respondents have pre-existing rights in the property left by Harbhajan Singh, their uncle. In the case of absence of any pre-existing right registration of any document worth more than Rs. 100/- would become necessary. Therefore, the decree would not require registration under Section 17 of the Registration Act. The aforementioned observation has been made after close analysis of the earlier two judgments of the Supreme Court passed in Maturi Pullaiah and Anr. v. Maturi Narasimham and Ors. A.I.R. 1966 S.C. 1836 and in Tek Bahadur Bhujil v. Debt Singh Bhujil : AIR1966SC292 .
9. For the reasons aforementioned, this appeal fails and the same is dismissed. R.M.S. Appeal dismissed.