Lakha Singh v. Joginder Kaur
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*! $ * !$ ! 8* $! ! 75! : ()&? 70! :@ (0>&A "63. Execution of unprivileged Wills.-Every testator, not being a soldier employed in an expedition or engaged in actual warfare, [or an airman so employed or engaged,] or a mariner at sea, shall execute his will according to the following rules: - (a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing
as a will.
(c) 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 or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; 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, and no particular form of attestation shall be necessary."
68. Proof of execution of document required by law to be attested.--If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.] 12.
However, out of the three witnesses who were stated to have witnessed the execution of the Will, two witnesses namely PW3 Malkeet Singh and PW4 Subegh Singh were examined. They did not support the case of the plaintiff and, on the contrary, stated that Raghbir Singh had not executed any Will on 20.09.2013. They went to the extent of stating that the plaintiff had obtained their signatures on the Will Ex.P1 after the death of
Raghbir Singh. No doubt, one hand-writing expert namely Karandeep Singh Arora was also examined by the plaintiff as PW6 who stated that the signatures on the Will were that of Raghbir Singh. However, the expert examined by the defendant namely DW3 Anil Kumar Gupta gave a contrary report. This report was found to be more trustworthy by the Courts. In any case, once the witnesses themselves did not support the case of the plaintiff and stated in so many words that their signatures had been obtained after the death of Raghbir Singh and further the third witness namely Angrej Singh, Nambardar was not examined, the reports of the hand-writing expert and the scribe would pale into insignificance. Both the Courts, therefore, rightly found that the execution of the Will Ex.P1 had not been proved. I do not find any illegality in the said findings of facts warranting interference in second appeal.
In view of the aforementioned facts and circumstances, I do not find any merit in the present appeal and the same is accordingly dismissed. Pending application(s), if any, stand(s) disposed of accordingly.
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Whether Reportable Yes/No