S. N. BHARGAVA, J. - (1.) THIS is defendant's second appeal against the judgment & decree passed by the Civil Judge, Bundi, accepting the appeal and setting aside the judgment & decree passed by the Munsif, Bundi and decreeing the plaintiff's suit for declaration that the will executed by the deceased Jagannath on 21. 6. 66 in favour of Badrilal (defendant appellant) was invalid.
(2.) SMT. Suraj Kanwar (plaintiff) filed the present suit stating that she is the validly married wife of Jagannath who is alleged to have made a will on 21. 6. 1966 in favour of Badrilal depriving her from the ancestral property of the joint Hindu family. The suit was contested on several grounds and the trial court on the pleadings of the parties framed as many as 9 issues, and held that the 'will' was duly executed by Jagannath and is effective. On appeal, the learned Civil Judge, Bundi, set aside the judgment and decree of the trial court and held that the 'will' dt. 21. 6. 66 by Jagannath in favour of Badrilal is invalid and does not curtail rights of the plaintiff Suraj Kanwar, and decreed the suit. Hence this appeal. Shri B. P. Agrawal, the learned counsel for the appellant, has very vehemently argued that the judgment of the first appellate court is erroneous inasmuch as the defendant had examined Sheokaran as DW 2 who has proved the will (Ex. A 1) and it was not necessary to examine other attesting witness, Khushal Chand. It is also submitted that the defendant has also examined Durgashanker Das scribe of the 'will' and he has also proved the attestation. Shri Agrawal has placed reliance upon S. 68 of the Indian Evidence Act, and further submitted that since the plaintiff, herself, has admitted that the 'will' bear the signatures of Jagannath, it should be deemed to be sufficient proof of execution of the 'will' and in this connection, he placed reliance upon the provisions of S. 70 and S. 71 of the India Evidence Act. In support of this above submissions Shri Agrawal has placed reliance upon the decisions as mentioned below. Vishnu Vs. Nathu Krishan (I), Ghasilal Vs. Bhuridevi (2), Modilal Vs. Kanhalyalal (3), Smt. Naraini Vs. Pyare Mohan (4) Seth Benichand Vs. Kamla Kunwar (5), Sitaram Vs. R. D. Gupta (6) and Ujagarsingh Vs. Chanan Singh (7 ).
(3.) ON the other hand, Shri Ajeet Kumar Bhandari, the learned counsel for the respondent, has submitted that the requirement of S. 63 of the Indian Succession Act, 1925,. have not been fulfilled in this case. Shri Bhandari has further submitted that Sheokaran (DW 2) who has been examined as an attesting witness, has stated on oath in the court that Jagannath had executed the 'will' and he had signed in his presence but since he was an illiterate, he could not recognise the signatures of Jagannath. Sheokaran (Dw 2) has of course proved his own signatures on the 'will'. He has further stated that the 'will' was scribed by Namonarain. In cross examination, he has stated that Mangilal Patwari was another attesting witness, Sheokaran (Dw 2) does not say that Mangilal has also signed in his presence as attesting witness. ON further cross examination, Sheokaran (Dw 2) stated that he does not know Khushalchand, whereas. Durgashanker (Dw 3) has been examined by the defendant as scribe of the 'will', who has stated that Sheokaran and Khushal Chand had attested the 'will'. A look at the 'will' (Ex. A1) shows that it bears the signatures of Sheokaran and Khushalchand. It does not bear signature of either scribe, or Mangi Lal, the other attesting witness according to Sheokaran (Dw 2) and, therefore, Sri Bhandari has submitted that the defendant has miserably failed to prove that the will has been attested by the two witnesses and since the 'will' does not bear the signatures of the scribe, scribe cannot be treated as another attesting witness. In this connection, Shri Bhandari placed reliance upon the judgment in Rodu Framraze Vs. Kamta Varii (8), Girjadutt Vs. Gauridutt (9), Smt Umrao Vs. Buxi Gopal (10) and V. S. Rao Vs. T. Kamakashiama (11 ). I have given my thoughtful consideration to the whole matter and have also gone through the record of the case as well as the judgments of the courts below. ;