Smt. Lachhi bai and Others vs Jamna Dass and Others

S.S. Sodhi, J.—The controversy is appeal here is with regard to the registered v. ill said to have been executed by Jiwan Das on September 1, 1958.

The parties to the suit are the sons and daughters of the said Jiwan Dass. Jiwan Dass died on January 19, 1960 leaving behind four sons, Jamna Dass, Gopi Ram, Atma Ram and Ram Krishan and two children Hem Raj and Uttam Devi of his predeceased son Nanak Ram besides six daughters, they being Lachhmi Bai, Daropati Bai, Bhagwani Bai, Ganga Devi, Chandrawal Lal and Har Devi. The Plaintiffs, who are daughters of Jiwan Dass, filed a suit for possession of 5/9th share of the land in suit by founding their claim on succession Defendants Nos 1 to 3, they being Jamna Dass and children of Nanak Ram deceased, namely ; Hem Raj and Uttam Devi set up the registered will in question of September 1, 1953, whereby all the property was left to the sons to the exclusion of the daughters.

A reference to the will exhibit D/1 would show that the scribe thereof was the petition writer Megh Raj and it was attested by three persons Satinder Dass, Advocate Gurmukh Singh Lambardar and Pala Singh None of these attesting witnesses came into the witness box to prove the will and there is also no material on record to suggest that any of them had died. Indeed Pala Singh, one of the attesting witnesses was cited and summoned as a witness but later not produced by either of the parties. The law is well settled that according to Section 63 of the Indian Succession Act, a will is required to be attested by at least two witnesses and it was held by the Supreme Court in Smt. Jaswant Kaur Vs. Smt. Amrit Kaur and Others, that at least one attesting witness must be called for proving the execution of the will if one such attesting witness is alive and capable of giving evidence In the earlier judgment of the High Court of Madras (Talluri) Pala Manikyam v. Vantabattina Periagadu A. I. R 1932 Mad. 148, it was held that an attesting witness must be produced even if he comes into the witness box and resiles. Non-examination of an attesting witness is thus a telling circumstance against due proof of execution of the will in question.

The other objection raised with regard to the proof of the will in the present case was the non-production of the original. Exhibit D/1 is, bat a copy of the original will. This will was no doubt registered, but there is no material on record to show that the necessary ingredients to warrant secondary evidence being led, stood established in this case.

In the circumstances the lower appellate court clearly fell in error in holding the will exhibit D/1 to be a valid will. The finding of the courts below on this matter cannot thus be sustained and is accordingly hereby set aside. It follows, therefore, that on the death of Jiwan Dass, the Plaintiffs were indeed entitled to possession of the land to the extent claimed. The judgment and decree of the lower appellate court is accordingly hereby set aside and the Plaintiffs are granted a decree for possession as prayed for. This appeal is thus accepted with costs.