Devi Saran vs Lok Raj and others

Pritpal Singh, J.—This appeal is directed against the judgment and decree of first appellate Court dated 21st August, 1975 whereby the decision of the trial Court was reversed and the plaintiff''s suit was decreed.

The relevant facts are that Hazara Singh husband of Smt. Taro, defendant No. 6, and father of the remaining defendants except Devi Sharan, defendant No. 1, was the owner of land bearing Khasra No. 184 measuring 1 kanal 8 marlas situated in Village Tibber in District Gurdaspur. The plaintiff Lok Raj alleged that out of this land Hazara Singh bequeathed a plot measuring 4 marlas in his favour vide a will dated 10th September, 1963. He also took possession of this plot and laid foundation thereon in order to construct a residential room for himself. On the allegation that Devi Sharan, defendant No. 1 alleging himself to be the purchaser of this land from the widow and children of Hazara Singh was trying to oust him from the plot, the plaintiff brought a suit for perpetual injunction restraining the defendants from interfering with his lawful possession on the plot in dispute. The suit was contested by the defendants. They denied that Hazara Singh had executed any valid will in plaintiff''s favour and pleaded that the successors-in-interest of Hazara Singh, defendant Nos. 2 to 7, had validly sold the land in dispute in favour of Devi Sharan, defendant No. 1.

The learned trial Court did not accept the validity of the will propounded by the plaintiff and dismissed his suit. The first appellate Court, however, reversed this finding and held that the execution and validity of the will in plaintiff''s favour are duly proved. On this finding the plaintiff''s appeal was allowed, the judgment and decree of the trial Court was set aside, and the plaintiff''s suit was decreed. It is against this judgment and decree of the first appellate Court that Devi Sharan, defendant No. 1, has preferred the instant second appeal.

The sole question for determination in this appeal is whether the will propounded by the plaintiff is a genuine document as held by the first appellate Court or a suspicious document as found by the trial Court. The validity of the will has been challenged before me by the learned appellant''s counsel on the only ground that the provisions of Section 63 of the Indian Succession Act have not been complied with. The same objection had been taken up before the first appellate Court which was rightly repelled. Section 63 of the Act envisages that the will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time. In the instant case the impugned will has been attested by two witnesses, one of whom namely Sadhu Ram has been examined. His unimpeachable testimony clearly establishes that the testator thumb marked the will in the presence of both the attesting witnesses and the latter attested the will in the presence of the testator. Compliance of section 63, is, therefore, well established and 1 find no merit in the plea taken up by the learned appellant''s counsel.

The impugned will is perfectly natural testamentary disposition of property. The plaintiff is a Brahman and Pujari of the village temple. Hazara Singh recited in the will that in order to discharge his pious obligation he wanted the Pujari to have a roof over his head and for this purpose he was bequeathing only a small portion of 4 Marlas of land in his favour. In other words, out of the land measuring 1 Kanal 8 Marlas only 4 Marlas were bequeathed and the remaining land was left for in favour of the widow and the children of the testator. The learned first appellate Court, in these circumstances, has rightly concluded that this will cannot be considered as an unnatural transaction. Apart from this it is proved from the record that more than one year after the execution of the will Hazara Singh executed a sale deed of some land adjoining the plot in dispute in favour of one Tirath Ram on 15th January, 1965. In the sale deed while describing the boundaries of the land which was sold to Tirath Ram the plot in dispute is mentioned as that of the plaintiff. It clearly shows that even in his life time Hazara Singh had recognised the plot in dispute to be the property of the plaintiff.

For the above reasons I find no infirmity in the impugned judgment and decree of the first appellate Court. As a result of this the instant appeal is dismissed with costs.