HC - when witness does not know who were the other attestors the Will is said to have been not validly proved

IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH

AT HYDERABAD

THE HON’BLE SRI JUSTICE V.V.S.RAO

SECOND APPEAL No.616 OF 2010

Dated:05.08.2011

Between:

Surla Arjunamma                                         ..  Appellant

       And

Surla Demudu and another                           ..  Respondents

JUDGMENT:

The appellant herein instituted O.S.No.194 of 1994 on the file of the Court of the Junior Civil Judge, Tuni, for declaration of title and consequential relief of possession after evicting the first respondent.  By judgment and decree dated 13.12.2000, the trial Court dismissed the said suit.  The appellant was also unsuccessful in her appeal being A.S.No.35 of 2004 on the file of the Court of the Senior Civil Judge, Pithapuram.  Against the judgment and decree dated 24.08.2006 passed by the first appellate Court, the present second appeal is filed. 

The parties herein are referred to as they are arrayed in the suit.  The plaintiff is sister of the first defendant.  She is mentally challenged and remained spinster. She used to live with her parents.  Her father executed a registered Will dated 26.05.1988 bequeathing plaint schedule property - one room tiled house with appurtenant vacant site, in Velamakothuru Village in Tuni Mandal and other property.  The Will Deed was registered at the office of the Sub Registrar, Tuni.  After death of her father in September 1872, she has been enjoying the property.  The defendant filed the suit being O.S.No.179 of 1992 for permanent injunction.  After obtainingad interim injunction, he dispossessed the plaintiff and trespassed into the plaint schedule property.

The defendant denied the plaintiff’s case, though he admitted the blood relationship between them.  He also challenged the Will contending that his father suffered from ill health till his death; that he never executed any Will and that it is forged.  He asserted his possession contending that it is he who has been paying taxes on the house and when the plaintiff tried to evict him, he filed O.S.No.179 of 1992.

During trial, the plaintiff examined herself as PW.1 and attestor of Ex.A1- Will as PW.2.  The defendant examined two witnesses as DWs.1 and 2 and marked Exs.B1 to B13.

The entire case of the plaintiff rests on Ex.A1 - Will.  After appreciating the evidence of PW.2 - attestor, the trial Court recorded a finding that when PW.2 does not know who were the other attestors the Will is said to have been not validly proved and accordingly rejected the suit as noticed supra.  The first appellate Court confirmed judgment of the trial Court.

The counsel for appellant submits that the Courts below were in error in concluding that Ex.A1 - Will was not properly proved.  According to him, it is a registered Will and nothing prevented the trial Court to summon the Sub Registrar for proving the said document. 

There is no denial of the legal position that the burden of proving the Will is on the scribe of the Will.  The Will has to be proved in accordance with Section 68 of the Indian Evidence Act, 1872, by examining attesting witnesses.  The sole attesting
witness - PW.2 was not even able to say the names of the attestors and, therefore, much importance cannot be given to PW.2.  When the evidence of PW.2 is rejected, it cannot be said that Ex.A1 - Will is proved.  The Courts below have correctly appreciated the legal position and rejected the case of the plaintiff.  Mere observations made by this Court when the case was heard on 23.07.2010 are not at all relevant for admitting the second appeal.  The second appeal is to be entertained only when there is a substantial question of law.  This Court does not find any substantial question of law.

The Second Appeal is therefore dismissed.  There shall be no order as to costs.

________________

(V.V.S. RAO, J)

05.08.2011             

KH