Chuhar Singh And Others vs Gurdev Singh And Others on 20 July, 2009

RSA No. 2035 of 1984                   1

            IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                         CHANDIGARH

                               RSA No. 2035 of 1984

                               Date of Decision: July 20, 2009


Chuhar Singh and others                                 ...... Appellants


      Versus


Gurdev Singh and others                                 ...... Respondents


Coram:      Hon'ble Mr. Justice Ajay Tewari


Present:    None for the appellants.

            Mr. Parveen Chauhan, Advocate
            for Mr.J.S.Wasu, Sr. Advocate
            for the respondents.

                  ****

1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?

Ajay Tewari, J.

This appeal has been filed against the concurrent judgments of

the Courts below primarily on the question regarding the validity of the will

alleged to have been executed in favour of the appellants.

The learned trial Court held against the appellants on the

ground that only one attesting witness of the will namely appellant (who

was also a beneficiary) had appeared in the Court who had omitted to make

any statement regarding the capacity of Inder Singh to make the will or that

the witnesses signed in front of each other or that the will had been

explained to the testator. Before the learned lower Appellate Court an
RSA No. 2035 of 1984 2

application was filed to recall the appellant on the ground that the complete

statement was not made by the appellant. Reliance was placed on the case

of Om Parkash v. Sarupa reported as AIR 1981 Pb. & Hry. 157.

However, the learned lower Appellate Court rightly distinguished that

judgment by holding that firstly in that case application had been made

before the trial court itself while here the same had been made four years

after the filing of the appeal only to meet the objection in this regard by the

trial Court. Even in this Court an application under Order 41 Rule 27 CPC

for producing the Sub Registrar as well as for recalling Chuhar Singh was

made. In my opinion both these prayers having been rejected by the learned

lower Appellate Court they could have been challenged only in grounds of

appeal and a separate application could not have been filed. The only

question of law which has been raised is whether the endorsement of the

Sub Registrar can be taken to be evidence in favour of the will even without

the Sub Registrar having appeared as a witness. In the grounds of appeal

learned counsel has relied upon a decision of this Court in Niranjan Singh

etc. v. Parsa Singh alias Parsu reported as 1971 Current Law Journal 195

wherein this Court held as follows:-

“Section 68 of the Evidence Act requires that before a

document, which requires registration, can be admitted

in evidence, one of its attesting witnesses should be

examined. In the present case, not only one, but two

attesting witnesses have been examined and scribe of the

will too has been examined. It is not necessary that more

than one attesting witness must be examined to prove the

due execution of the will. In the present case, after
RSA No. 2035 of 1984 3

considering the totality of the circumstances and the

evidence adduced on the record, both the Courts below

have come to the conclusion that the will is valid as

having been duly attested…………………………………………….

…………………………………………………………………………………

………………………………………………………………”

However, it is noticeable that in that case both the attesting witnesses

had appeared and one had made the statement regarding the testator and the

witnesses having signed in each other’s presence while the other had not

made the statement. It was in those circumstances that this Court held that

the endorsement of the Sub Registrar raises a presumption of validity. As

noticed above in the present case only one attesting witness has appeared-

the beneficiary himself and he too has made an incomplete statement as

shown above.

In this view of the matter I decide the question of law by

holding that an endorsement by Sub Registrar only raises a presumption

which can be pressed into use in an appropriate case and that the present

case is not such a matter.

Consequently this appeal is dismissed. No costs.

Since the main case has been decided, all the CMs stand

disposed of.

(AJAY TEWARI)
JUDGE

July 20, 2009
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