Gurmeet Kaur v. Balvir Kaur & Ors.

CORAM : HON’BLE MR. JUSTICE L. N. MITTAL * * * * Present : Mr. Amandeep Singh Gill, Advocate for the appellant. * * * * L. N. MITTAL, J. (ORAL) CM No.13589-CII of 2012 Allowed as prayed for. Main Case Defendant No.1-Gurmeet Kaur having lost in both the Courts below has filed this second appeal. The dispute relates to inheritance of Darshan Singh. His one son Sukhbir Singh predeceased him. Respondents No.1 to 3 are widow and sons of Sukhbir Singh. Suit was filed by respondents No.1 and 2/plaintiffs impleading respondent No.3 as proforma defendant No.5. Darshan Singh also left behind widow, two daughters and a son (appellant and proforma respondents 4 to 6) impleaded as defendants No.1 to 4 in the suit. RSA NO.4869 OF 2012 (O&M) - 2 - The plaintiffs on the basis of natural inheritance claimed 1/5th share for plaintiffs and defendant No.5 in the suit property left by Darshan Singh. Defendants No.1 to 4, who contested the suit, set up registered Will dated 15.05.1996 allegedly executed by Darshan Singh in favour of defendant No.1-appellant alone, who is wife of Darshan Singh. Relationship between the parties was not disputed. Both the Courts below have decreed the suit of the plaintiffs. Feeling aggrieved, defendant No.1 has filed this second appeal. I have heard learned counsel for the appellant and perused the case file. It is undisputed that in view of natural succession, plaintiffs and defendant No.5 have 1/5th share in the suit property. The controversy is regarding the alleged Will set up by the contesting defendants. However, they have failed to prove the said Will because no attesting witness of the Will has been examined as witness although admittedly both attesting witnesses of the Will are alive. According to Section 63 of the Indian Succession Act, 1925, Will is required to be attested by at lease two witnesses. According to Section 68 of the Evidence Act, when a document is required by law to be attested by witnesses, it shall not be used as evidence unless at least one attesting witness, if alive and available, has been examined. This rule, of course, admits of certain exceptions. Combined effect of the aforesaid provisions is that at least one attesting witness of the Will was required to be examined as witness to prove the execution of the Will in accordance with law. However, no attesting RSA NO.4869 OF 2012 (O&M) - 3 - witness of the Will has been examined as witness to prove execution of the Will although both attesting witnesses are alive and available. Thus the Will has not been proved in accordance with law and has, therefore, been rightly discarded by the Courts below. As a necessary corollary thereof, the suit has been rightly decreed on the basis of natural inheritance. Counsel for the appellant contended that plaintiff No.1 Balbir Kaur and Sarpanch Gurmail Singh while appearing in the witness box admitted the execution of the Will by stating that Darshan Singh had no right to execute the Will. The contention is completely misconceived. Merely because the witnesses stated that Darshan Singh had no right to execute Will, it cannot be said that they have admitted the execution of the disputed Will which has been strongly controverted by them at every stage. Counsel for the appellant next contended that in the lower appellate Court, appellants (defendants No.1 to 4) had moved application to examine both witnesses of the Will by way of additional evidence but the said application has been dismissed by the lower appellate Court vide separate order of even date while dismissing the appeal. It was contended that due to wrong advice of counsel in the trial Court, attesting witnesses of the Will could not be examined and, therefore, permission should be granted for examining them by way of additional evidence. The contention cannot be accepted. If such kind of ground is accepted to allow additional evidence, then no application for additional evidence would be liable to dismissal. In fact, invariably such ground is pleaded for seeking amendment of pleadings or for additional evidence or for such other relief. However, it is very easy to plead such ground to seek such relief. However, RSA NO.4869 OF 2012 (O&M) - 4 - such relief can not be granted merely on the basis of such averment. It has to be emphasized at the risk of repetition that if such relief is granted merely on averment that it was fault of the counsel, then no such application can be dismissed. There was no ground for not examining the attesting witnesses of the Will in the trial Court. Application for additional evidence moved in the lower appellate Court has been rightly dismissed by the lower appellate Court by detailed order recording cogent reasons. The appellant cannot be permitted to lead proposed additional evidence. Counsel for the appellant also contended that scribe of the Will and Clerk from the office of Sub-Registrar have been examined to prove the Will. However, they cannot be said to be attesting witnesses of the Will. Their examination does not satisfy the mandatory requirement of Section 68 of the Evidence Act as noticed hereinbefore. For the reasons aforesaid, I find no merit in this second appeal. No question of law, much less substantial question of law, arises for determination in this second appeal. Accordingly the appeal is dismissed in limine. 21st November, 2012 ‘raj’ (L. N. MITTAL) JUDGE