Chander v. Nihali

G.R. Majithia, J. - The defendant-appellant has impugned the judgment and decree of the First Appellate Court reversing on appeal those of the trial Age and decreeing the suit of the plaintiff-respondents for possession of the suit land in this Regular second Appeal. 2. The facts :- Sheo Nath has two sons - Dharma and Ran Singh. Dharma died in the year, 1928 leaving behind Smt. Maya Kaur widow, Nihali and Dhano, daughters, hereinafter, the plaintiffs). Maya Kaur after the Death of her husband married Ran Singh, real brother of her deceased husband. Ran Singh had a son from his first wife Chander, defendant-appellant (hereinafter, the defendant); Ran Singh dies on April 1, 1958. He was succeeded to by his widow Maya Kaur and defendant, in equal shares and the mutation of inheritance was sanctioned on October 6, 1958; that Maya Kaur died on October 17,1977; that the plaintiffs filed a suit claiming possession of her state on July 24, 1978; that the defendant claimed the estate of Maya Kaur on the basis of a registered Will, dated June 19, 1973 and the mutation was also sanctioned in his favour on the basis of the same on November 2, 1977; and that the plaintiffs impugned the correctness of the mutation and challenged the validity of the Will in the suit, 3. The defendant controverted the allegations made in the plaint and pleaded that the Will executed by Maya Kaur was valid. 4. The pleadings of the parties gave rise to the following issues :- 1. Whether the plaintiffs are the daughters of Maya Kaur ? OPP 2. Whether the Will No. 10, dated 19.6.1973 was validly executed by Maya Kaur ? OPD (Onus objected to) 3. Whether Smt. Maya Kaur was not in possession of sound disposing mind at the time of the execution of the Will ? OPP 4. Whether the suit land was ancestral, if so, to what effect ? OPP 5. Whether the suit is liable to be dismissed as per defects given in para No. 1 of the written statement ? OPD 6. Whether the court fee paid is less ? OPD 7. Whether the suit is not within limitation ? OPD 8. Relief. 5. Issue No. 1 was found in favour of the plaintiffs and it was held that they were daughters of Smt. Maya Kaur deceased; issues No. 2 and 3 were disposed of together and it was held that the deceased validly executed the Will in favour of the defendant; issue No. 4 was found against the plaintiffs since it was not pressed for want of evidence issues No. 5, 6 and 7 were disposed of together. These issues were not pressed by the defendant and were concluded against him. On ultimate analysis, the suit was dismissed. 6. On appeal by the plaintiffs, only the finding recorded by the trial Judge on issue No. 2 was challenged and the First Appellate Court found that the Will was invalid. The First Appellate Court after referring some case law concluded that due execution of the Will was not proved and discarded the evidence of the attesting witnesses on the ground that there were some discrepancies in these statements. 7. The First Appellate Court did not meet with the reasoning of the trial Judge holding that the Will was validly executed by the testator in favour of the legatee and that the Will was the result of free Will of the testator. 8. Indisputably, the legatee was an infant when his mother died and his father married by Chaddar Andazi his deceased brother's wife Maya Kaur. The legatee was brought up by the testator as a son. Maya Kaur resided with him till, her end. The last ceremonies of the deceased were also performed by the legatee. The Will dated June 19,1973 was scribed by Deed Writer Umrao Singh and attested by Girdhari Lambardar, Dalip Singh and Lal Singh, Sarpanches and it was registered on the same day. Its due execution is proved by DW3-Umrao Singh, scribe of the Will, DW2-Dalip Singh and DW4 Lal Singh, Sarpanches, attesting witnesses of the Will. DW3 - Umrao Singh, the scribe deposed that the Will, Ex. DI, was scribed by him at the instance of Smt. Maya Kaur, who thumb marked it in token of its correctness and the attesting witnesses attested the same in her presence. In cross-examination, only a suggestion was put to the witness that the Will was not executed at the instance of Maya Kaur and that she was not in sound disposing mind. DW4 is Lal Singh Sarpanch of village Lalit Khera, to which place the parties hail. He deposed that in the year, 1973, he was Sarpanch of the village and that the testator was known to him and he was called to Jind by the testator. The Will was scribed by the Deed Writer at the instance of the testator. It was read over to her and she thumb marked the Will in correctness of the same. The attesting witnesses put their thumb impressions on it and the Will was taken to the Sub Registrar, who read over the same to the testator and in acknowledgment of the same she put her thumb impression on the Will in the presence of the Sub Registrar and the Will is Ex. D1. Maya Kaur was in sound health. In cross-examination regarding due execution of the Will, only a suggestion was put to him that he was deposing falsely at the instance of the defendant. The statement of the witness regarding due execution of the Will was not assailed in the cross-examination. In cross-examination, the witness admitted that Ram Singh had celebrated the marriages of the plaintiffs. To the same effect is the statement of DW Dalip Singh, Sarpanch of village Nidana, who deposed that village Lalit Khera to which place the testator belonged was at a distance of 1 or 1-1/2 miles from his village; that he knew the testator and he was summoned by the defendant and Maya Kaur told him that she wanted to execute a Will and that she brought the attesting witnesses and the defendant to Jind. His statement is in unison with DW4 Lal Singh. In cross examination, no question was put to him regarding execution of the Will. Only a suggestion was put to him that Maya Kaur was a blind and deaf, which was denied. The evidence of the attesting witnesses is natural and straight-forward. It rings true. The alleged discrepancies pointed out by the Fist Appellate Court are not flowing from the evidence of these witnesses. There was no justification for discarding the statements of the attesting witnesses more particularly when their evidence regarding due execution of the Will was never assailed in cross-examination by the plaintiffs. Moreover, the certificate of the Registrar under Section 60 of the Registration Act is a relevant piece of evidence for proving due execution of the Will. The registration of a document is a solemn act to be performed in the presence of a competent official appointed to act as Registrar, whose duty is to attend to the parties during the registration and see that the proper persons are present, are competent to act, and are identified to his satisfaction; and all things done before him in his official capacity and verified by his signature will be presumed to be done duly and in order. (See in this connection -Piara v. Fattu, A.I.R. 1929 Lahore 711). The First Appellate Court was in error in holding that the Will was not validly executed. The findings arrived at by the First Appellate Court are reversed. For the reasons stated above, the appeal succeeds. The judgment and decree of the First Appellate Court are set aside and those of the trial judge are restored and the suit of the plaintiffs is dismissed, but the parties are left to bear their own costs.