JUDGMENT
P.K. Jaiswal, J.
1. This second appeal is filed by the defendant No. 1 against the judgment and decree dated 11-3-1998 passed by Third Additional District Judge Bhind in Civil Appeal No. 2-A/97, whereby learned Additional District Judge affirmed the judgment and decree of the Trial Court dated 7-1995 passed by the Civil Judge Class I Lahar in Civil Suit No. 27-A/93 by which suit of the respondent No. 1 was decreed.
2. Brief facts of the case are that the agriculture land of Survey No. 16 area 0.888 hectare, Survey No. 263 area 0.063 hectare and survey No. 429 area 0.261 hectare, situated in Village Asokhar, Tehsil Mehgaon, District Bhind was owned and possessed by Ramdin s/o Bhavsingh who died issueless on 29-5-1982. Ramdin Singh during his life time executed a will dated 24-5-1982 (Exh. P-1) in favour of the respondent No. 1 Mahesh Singh. The Will was got registered thereafter on 3-6-1982 before the Sub Registrar, Mehgaon. The respondent No. 1 filed a suit for declaration of title and permanent injunction on the ground that Ramdin Singh was uncle of his father Mahendra Singh and he was residing with them and it is he who was cultivating the land of Ramdin Singh. After his death on the basis of Will he being the only successor of Late Ramdin Singh is having title over the suit property. On 14-6-1982 the appellant tried to dispossess the respondent No. 1 from the suit land and therefore, he filed a suit for declaration to declare him as owner of the suit land and restrain the appellant from interfering with his possession.
3. The appellant-defendant No. 1 filed his written statements denied the averments made in the plaint and submitted that Ramdin was his paternal uncle and no Will was executed by him during his life time and the Will dated 24-5-1982 is a forged Will prepared with collusion with the relatives of the respondent No. 1 to grab the property of Ramdin Singh, after his death and further that at the time of execution of Will was not proved as required under Section 63 of the Indian Succession Act, 1925.
4. The Trial Court on the basis of the pleadings of the parties and documents on record framed seven issues. The appellant produced six witnesses and respondent No. 1 produced four witnesses in support of their respective stand before the Trial Court. According to the respondent No. 1 Will was attested by two attesting witnesses namely Ummed Singh s/o Chandan Singh (P.W. 4) and Ummed Singh s/o Chhotey Singh (P.W. 5) and scribed by Indra Singh (P.W. 3). The respondent No. 1 also examined Sub Registrar, Mehgaon who registered the Will on 3-6-1982. According to the respondent No. 1 the Will was executed on 24-5-1982 by Ramdeen in presence of Mahendra Singh (P.W. 2), Indra Singh (P.W. 3) [Ummed Singh s/o Chandan Singh (P.W. 4) and Ummed Singh s/o Chottey Singh (P.W. 5) at thatched roof hut of the house of Ramdin Singh]. Ramdin Singh had put his thumb impression on the Will by the pen ink. Indra Singh (P.W. 3) scriber of the Will deposed that the Will was scribed by him at the instance of Ramdin Singh. Ummed Singh s/o Chandan Singh (P.W. 4) and Mahendra Singh (P.W. 2) stated that they were present at the time of execution of Will and Ramdeen Singh put his thumb impression on the Will in their presence and they attested the Will in the presence of Ramdin Singh. The Trial Court after appreciating the evidence on record came to the conclusion that Will (Exh. P-1) was duly proved as required under Section 63 of the Indian Succession Act, 1952 and arrived at the conclusion that the deceased had executed a Will in favour of respondent No. 1 and decreed the suit of the respondent No. 1.
5. Aggrieved by the judgment and decree of the Trial Court, the appellant has filed an appeal before the learned Additional District Judge, Bhind. After hearing the Counsel for the parties the learned Additional District Judge dismissed the appeal of the appellant and held that the Trial Court correctly came to a definite finding that the propounder of the Will proved that the testator was in mentally sound condition and disposing state of mind at the time of execution of Will. The Lower Appellate Court further held that the scriber Indra Singh (P.W. 3) attesting witnesses Ummed Singh s/o Chandan Singh (P.W. 4) and Ummed Singh s/o Chhotey Singh (P.W. 5) and Mahendra Singh (P.W. 2) have amply proved that Ramdin Singh was in sound disposing state of mind when he dictated the terms of the Will and after dictating its contents he affixed his thumb impression in the presence of attesting witnesses. Learned Additional District Judge disbelieved the contention of the appellant that Mahendra Singh (P.W. 2) in his examination in chief stated that the Will was executed in he house of Ramdin Singh where he was residing and he further in Para 13 of his cross-examination very specifically clarified that Will was executed by Ramdeen in the house in which he used to take rest,
i.e., thatched roof hut and similar evidence was given by Indra Singh (P.W. 3), Ummed Singh (P.W. 4) and Ummed Singh (P.W. 5). In respect of the contention of the appellant that at the time of execution of the Will Ramdin Singh was not well and he was suffering from Asthma and appellant had taken him for his treatment and he was treated by Dr. Narwariya in Piprai Village during the period of 1968 to 1982 is not correct because as per Exh. P-15 certificate issued by Dr. M.S. Bhadoriya who was posted at Govt. Ayurvedi Dispensary, Piprai very specifically stated that no doctor in the name of Dr. Narwariya was posted at Govt. Ayurvedic Dispensary during the said period. D.W. 3 also in his cross-examination stated that he had no knowledge about the treatment of Ramdin Singh. The Lower Appellate Court also observed that in view of the facts and circumstances of the case, the Trial Court was fully justified for upholding the Will as a genuine and valid document and affirmed the findings of the Trial Court and dismissed the appeal of the appellant with costs.
6. The appellant aggrieved by the judgment and decree of the Lower Appellate Court preferred this second appeal on 25-6-1998. The second appeal was admitted on 30-11-2005 on the following substantial question of law:
Whether the “Will” (Exh. P-1) executed by deceased Ramdin is proved in accordance with Section 63 of the Indian Succession Act ?
7. As per Section 63 of the Indian Succession Act, 1925. However, the testator 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 by him shall be so placed that it shall appear that it was handed 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 personally 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 for more than one witness be present at the same time and no particular form of attestation shall be necessary.
8. In Clause (a) of Section 63 the testator can sign or affix his mark in the Will. Clause (b) requires for signature or mark of the testator shall be so placed that it shall appear that it was handed thereby to give effect to the document of the Will. Indra Singh (P.W. 3) in his statement stated that testator orally dictated the Will and he scribed the Will in presence of the attesting witnesses and testator signed the Will in presence of attesting witnesses. Thereafter he signed the Will in the present of testator. Attesting witnesses P.W. 4 and P.W. 5 attested the signature of the testator, signed the Will in their presence and thereafter they signed the Will as an attesting witnesses in presence of the testator. All the three above witnesses unanimously stated that the Will was scribed by Indra Singh at the house of Ramdin Singh and when the Will was written Ramdin Singh was at thatched roof hut of his house and attesting witness as well as plaintiffs’ father Mahendra Singh was also present. There is no material discrepancy in the evidence of the above witnesses. It is also averred by the above plaintiff witnesses that testator was in sound state of mind while executing the Will P.W. 2, P.W. 3, P.W. 4, P.W. 5 and P.W. 6 categorically stated that testator was mentally sound condition and disposing state of mind at the time of execution of Will. He was physically and mentally fit. He was residing with Mahendra Singh and he was uncle of the Mahendra Singh and it is Mahendra Singh (P.W. 2) and his son plaintiff who were taking care of the testator during his life time. In respect of explanation regarding delay in registration of the Will the plaintiff and Mahendra Singh (P.W. 2) in their evidence stated that Will was executed on 24-5-1982 and on 28-5-1982 there was marriage of sister of plaintiff, and therefore, Will was not registered immediately after its execution and he got it registered on 3-6-1982. Exh. D-3 is marriage card which to prove that there was marriage in the family of the plaintiff and due to marriage on 28-5-1982 the Will was not registered. The Lower Appellate Court discussed this finding in Para 36 of the impugned judgment. Ramdas (D.W. 1) in his statement stated that the Ramdin Singh was suffering from Asthma and he was treated and during his life time he was treated by Dr. Narwariya of Piprai Village at Govt. Ayurvedic Dispensary Piprai. No documentary evidence was filed nor he examined any one to prove that Dr. Narwariya was posted at Piprai. On the contrary the respondent No. 1 filed Exh. P-15 certificate issued by Government Ayurvedic Hospital Piprai in which it is stated that Dr. M.S. Bhadoriya was posted at Govt. Ayurvedic Dispensary Piprai. Patiram (D.W. 3) and Surendra Singh (D.W. 4) in their cross-examination stated that he has no knowledge about the treatment of Ramdin Singh. The Lower Appellate Court by elaborate discussion of the evidence of the defendants witnesses held that story of the defendant that testator was not well at the time of execution of Will is incorrect and held that at the time of execution of Will he was in sound condition and disposing state of mind.
9. Learned Counsel for the appellant submitted that appellant was nephew of the deceased Ramdin Singh and there is no reason for him to disinherit his own nephew. Ramdas (D.W. 1) was in Government service since 1956 and working as a Teacher at Govt. Primary School Shepura, Village Asokhar, residing at Asokhar and he has no relation with the Ramdin Singh and he failed to prove his relationship by cogent evidence. It is lastly submitted by the learned Counsel for the appellant that Will is a forged and fabricated document and testator has not put his thumb impression on the Will. In support of the said contention he submitted that Exh. D-8 is a copy of Seva Sahakari Sanstha Nunhad dated 23-11-1966 in which thumb impression of Ramdin Singh is appended and the thumb impression in the Will is different than the thumb impression appended in Exh. D-8. From the evidence on record it is clear that no evidence was produced by the appellant before the Trial Court to prove that the thumb impression in Exh. D-8 is thumb impression of Ramdin Singh nor any evidence was produced to prove that Ramdin Singh signed the said register nor any attesting witnesses was produced to prove that in his presence. Ramdin Singh appended his thumb impression on the register. Both the Courts below after perusing the evidence held that in Exh. P-8 name of Ramdin Singh at S. No. 173 is of different ink and in the column No. 2 also date and name of Ramdin Singh is written on different ink.
10. From the above facts and findings, I do not find any merit on the arguments of the appellant. From the evidence of Indra Singh (P.W. 3), Ummed Singh (P.W. 4), Ummed Singh (P.W. 5), Mahendra Singh (P.W. 2), Pannalal (P.W. 6) and P.R. Chauhan (P.W. 1) the execution of Will was duly proved by cogent evidence as required under Section 63 of the Indian Succession Act, 1925. Both the Courts below after considering the evidence on record gave a finding which is a finding of fact based on evidence on record. The said concurrent finding of fact cannot be examined in the second appeal.
11. It is settled law that Will always disturb the inheritance and therefore, the decision of the Apex Court in the case of Ram Piprai v. Bhagwant and Ors. will not in any way held the appellant. The attestation of the Will was duly proved and the propounder of the Will proved that testator signed the Will and Ummed Singh s/o Chandan Singh (P.W. 4) and Ummed Singh s/o. Chhotey Singh (P.W. 5) signed the same in the presence of testator and scriber of the Will Indra Singh (P.W. 3). Therefore, the decision cited by the appellant in the case of Girja Datt Singh v. Gangotri Datt Singh , will not be applicable in the present facts and circumstances of the case because in the case in hand the Will was duly proved by the cogent evidence and both the Courts below gave a finding of fact to this effect. The findings arrived at by the Courts below is finding of fact. This Court does not substitute its own opinion for what was the testator’s will or intention as manifested from a reading of the written instrument. If a will appears on the face of it to have been duly executed and attested in accordance with the requirements of the statute, a presumption of due execution and attestation is drawn. See Gurdev Kaur and Ors. v. Kaki and Ors. (2007) 1 SCC 546.
12. Having considered the submissions made by the learned Counsel for the parties and looking to the reasons recorded by the Trial Court as well as by the First Appellate Court I am of the considered view that the Will Exh. P-1 executed by Ramdin Singh was duly proved as required under Section 63 of Indian Succession Act.
13. The substantial question of law is answered against the appellant and appeal is therefore, dismissed with costs. Counsel fee Rs. 1500/-, if pre certified.