Judgment:
Rajiv Sharma, J.
1. This Regular Second Appeal has been directed against the judgment and decree dated 18.11.1998 passed by the learned District Judge, Sirmaur District at Nahan in Civil Appeal No. 47-CA/13 of 1997.
2. Brief facts necessary for the adjudication of this Regular Second Appeal are that the respondent-plaintiff (hereinafter referred to as 'the plaintiff' for convenience sake) filed a suit for recovery of possession of land on the averment that the maternal grand-father (his Nana) late Sh. Munnu Ram was owner in possession of the land detailed in Khata Whether the reporters of Local Papers may be allowed to see the judgment? Yes. Khatauni No. 10 min/29, 35, 43, 50 and 12/57, Khasra Nos. 257/209 measuring 1-8 bighas, Khasra No. 258/209 measuring 1-8 bighas, Khasra No. 256/209 measuring 0-10 bighas, Khasra No. 261/209 measuring 1-6 bighas, Khasra No. 140 measuring 0-2 bighas and Khasra No. 260/209 measuring 6-14 bighas respectively situated in village Dhown, Tehsil and District Nahan. Sh. Munnu died in civil hospital at Nahan on 20.3.1982 leaving behind Smt. Kanta Devi and proforma defendants No. 2 and 3, namely Smt. Budho Devi and Smt. Mahanti Devi. On 27.2.1985, Smt. Kanta Devi, mother of the plaintiff, also died. The appellant-defendant (hereinafter referred to as 'the defendant' for convenience sake) set up a forged and fraudulent will of late Sh. Munnu and submitted the same before the Revenue Officer for attestation of mutation of the suit property. The mother of the plaintiff contested the validity and genuineness of the will before the Assistant Collector 2nd Grade, Nahan. He attested the mutation on 27.4.1989. Thereafter defendant illegally encroached upon the suit property in the month of February, 1985. According to the plaintiff, the will dated 17.2.1982 purported to have been executed by Sh. Munnu Ram was forged and fraudulent document. The suit was contested by the defendant. According to him, the will was executed by deceased Munnu Ram with his own free will. The trial court decreed the suit on 28.7.1997. The defendant preferred an appeal before the learned District Judge, Sirmaur District at Nahan. The learned District Judge dismissed the appeal on 18.11.1998. This Regular Second Appeal has been directed against the judgment and decree dated 18.11.1998. The same was admitted on the following substantial question of law:
Whether exhibit DA, which is Xerox copy of the will dated February 17, 1982, cannot be admitted by way of secondary evidence in view of Section 63 of the Indian Evidence Act and whether this plea is available to plaintiff who has not questioned the correctness of Exhibit DA being the true, exact copy of the original will dated February 17, 1982
3. Mr. K.S. Kanwar, Advocate has strenuously argued that the judgments and decrees passed by both the courts below are not sustainable. According to him, the will has been executed by Sh. Munnu on 17.2.1982 due to services rendered by the defendant. He then contended that both the courts below have misconstrued the provisions of Section 63 and 65 of the Indian Evidence Act. According to him, the will is genuine and is not shrouded by suspicious circumstances as recorded by both the courts below.
4. Mr. Sanjeev Kuthiala, Advocate has supported the judgments and decrees passed by both the learned courts below.
5. I have heard the learned Counsel for the parties and perused the record carefully.
6. The will in question was executed on 17.2.1982. It is not a registered document. The defendant moved an application before the trial court seeking permission for leading secondary evidence. It was allowed by the learned Sub Judge on 10.9.1996. It was averred in the application that the original will had been produced before the Assistant Collector, who had seen it and sanctioned the mutation of ownership on the basis of will and thereafter the same remained in the court of Assistant Collector from where it was lost. The document Ex. DA is a photocopy of the original will. It does not satisfy the requirement of secondary evidence as contemplated under Section 63 of the Indian Evidence Act. The defendant has led no evidence that Ex.DA was ever compared with the original or with other similar copies. Kaku Ram, Patwari was not examined by the defendant. The defendant has not even produced the original will before the Assistant Collector IInd Grade, Nahan on 5.10.1983. He has only produced the Photostat copy as per Ex.DW-1/A.
7. There are suspicious circumstances surrounding the execution of the alleged will dated 17.2.1982. Sh. Mohammad Iqbal, who has scribed the will was not examined. Sh. Man Singh DW-2 was closely related to defendant. The statement of DW-3 Anant Ram does not inspire confidence. The will has been written in the Hospital. The presence of Sh. Anant Ram at that moment has not been explained. He has also admitted in his statement Ex.DW-2/A dated 5.10.1983 in his cross-examination that he wanted to get the will executed in his own favour because he was related to Munnu Ram. But Munnu Ram did not execute the will in his favour. The plaintiff is closely related to Munnu Ram. The defendant is a stranger. There is no explanation forthcoming why Munnu Ram had excluded his close relation and has given preference to the defendant. The dead body of Munnu Ram was cremated by the Municipal Committee officials as unclaimed body. In case the defendant was rendering services to Munnu Ram, he was supposed to perform the last rites. Sh. Munnu Ram was admitted in the Hospital about 10 days before his death. Tulsi Ram has admitted in his cross-examination that the deceased was suffering from T.B. and anemia and his mental state had weakened. The defendant has also tried to explain that earlier Munnu Ram had agreed to sell the suit land for consideration of Rs. 4,000/- - 5,000/-, but it could not be done due to legal hurdle. This circumstance also casts doubt about the validity of the will.
8. Mr. K.S. Kanwar has further argued that the original will was lodged in the office of Assistant Collector IInd Grade, Nahan. His client had moved application for carrying out inquiry in this behalf. It is evident from the statement (Ex.DW-1/A) of Tulsi Ram that he had only produced the photocopy of the will before the Assistant Collector IInd Grade. Since he had produced the photocopy of the will in question before the Assistant Collector, there was no question of ordering the inquiry by the courts below. He has not produced any witness from the office of Assistant Collector. The will was not a registered document. It has not come in the statements of DW-2 Man Singh and DW-3 Anant Ram that Munnu Ram had appended his thumb impression on the will in their presence after admitting its contents to be correct.
9. Their Lordships of the Hon'ble Supreme Court in Yumnam Ongi Tampha Ibema Devi v. Yumnam Joykumar Singh and Ors. : (2009) 4 SCC 780 have held as under:
11. As per provisions of Section 63 of the Succession Act, for the due execution of a will:
(1) the testator should sign or affix his mark to the will;
(2) the signature or the mark of the testator should be so placed that it should appear that it was intended thereby to give effect to the writing as a well;
(3) the will should be attested by two or more witnesses, and
(4) each of the said witnesses must have seen the testator signing or affixing his mark to the will and each of them should sign the will in the presence of the testator.
12. The attestation of the will in the manner stated above is not an empty formality. It means signing a document for the purpose of testifying of the signatures of the executant. The attested (sic attesting) witness should put his signature on the will animo attestandi. It is not necessary that more than one witness be present at the same time and no particular form of attestation is necessary. Since a will is required by law to be attested, its execution has to be proved in the manner laid down in the section and the Evidence Act which requires that at least one attesting witness has to be examined for the purpose of proving the execution of such a document.
13. Therefore, having regard to the provisions of Section 68 of the Evidence Act and Section 63 of the Succession Act, a will to be valid should be attested by two or more witnesses in the manner provided therein and the propounder thereof should examine one attesting witness to prove the will. The attesting witness should speak not only about the testator's signature or affixing his mark to the will but also that each of the witnesses had signed the will in the presence of the testator.
10. The defendant has failed to prove the will dated 17.2.1982 in accordance with law. He has failed to produce the scribe. DW-2 Man Singh was closely related to him. The statement of DW-3 Anant Ram does not inspire confidence. Accordingly, the will set up by the defendant is not a genuine document. The learned courts below have correctly appreciated the oral as well as documentary evidence. The courts below have correctly applied Sections 63 and 65 of the Indian Evidence Act while recording the findings against the appellant-defendant. Consequently, there is no merit in the Regular Second Appeal and the same is dismissed. There will, however, be no order as to costs. 4.8. 2009.