JUDGMENT [ENTITY], J.
1. This is plaintiffs second appeal against the judgment and decree passed by Shri [ENTITY], Additional District Judge-I, Kangra at Dharamsala. By means of impugned judgment and decree passed on 20-4-1996 in [CASE NUMBER] the appeal has been allowed and consequently the judgment and decree passed by the Sub-Judge 1st Class (I), Nurpur, in [CASE NUMBER], dated 16-5-1995 has been reversed by allowing the appeal of defendant No. 1 and consequently the suit of the plaintiff has been dismissed.
2. Material facts of this case, are short and are not in dispute. [ENTITY] was the predecessor-in-interest of the parties to the suit. Smt. [ENTITY]-defendant No. 1 is the widow, whereas [ENTITY], plaintiff and defendants Nos. 2 to 4, [ENTITY], [ENTITY] and [ENTITY] are sons and [ENTITY], [ENTITY] and [ENTITY] are the daughters of late Shri [ENTITY]. Deceased-[ENTITY], who owned sufficient immovable property in two villages situated in Tikka and [ENTITY] Khasa, as well as [ENTITY], [ENTITY] Raja Khasa, Tehsil Indora, District Kangra. Plaintiff filed a suit for declaration to the effec that he is in joint ownership and possession in equal shares along with defendants and is entitled to remain in joint possession in ownership in future also with the defendants and the Will dated 24-12-1987 set up by defendant No. 1-Smt. [ENTITY] in his favour is invalid, wrong, illegal and against the facts and is fictitious document not binding on his rights and the defendants have no right, title or interest in the suit property beyond their shares as per [ACT] and are not entitled to interfere in any manner in the share of the ownership and possession of the plaintiff. Permanent injunction was also prayed for by the plaintiff against defendants restraining them from interfering in any manner in the joint ownership and possession of the plaintiff to the extent of his share in the suit land or from taking forcible possession, alternative prayer for possession was also prayed for.
3. This suit was resisted and contested by the defendants. Defendant No. 1 filed her written statement and propounded the Will dated 24-12-1987 (Ex. D-1) purported to have been executed by her husband late Shri [ENTITY], whereas defendants Nos. 2 to 7 filed separate written statement, who admitted the execution of the Will by their deceased-father in favour of their mother i .e. defendant No. 1. Parties went to trial on the aforesaid pleading on me following issues framed by the trial Court:
1. Whether the parties to the suit are joint owners in possession of the suit land in equal share, as alleged ? OPP
2. Whether deceased-[ENTITY] executed a valid Will dated 24-12-1987 in favour of defendant No. 1 qua the suit land, if so, its effect? OPD
3. Whether the plaintiff has no cause of action and locus standi to file the suit? OPD
4. Relief.
4. After conclusion of the trial, suit of the plaintiff was decreed and Will (Ex.D-1) propounded by the defendant No. 1 was not accepted by the trial Court. The judgment and decree passed by the trial Court was questioned in appeal by defendant No. 1, the beneficiary of the said Will before the lower appellate Court, who by means of impugned judgment and decree has set aside the decree passed by the trial Court and consequently dismissed the suit of the plaintiff, hence this second appeal.
5. I have heard learned counsel for the parties and also gone through the record of this case.
6. Shri [ENTITY], learned counsel for the appellant, has submitted that there is lack of proof of Will (Ex. D-1), as required under [SECTION] of the [ACT] read with [SECTION] of the [ACT]. Besides this, the said Will is surrounded by suspicious circumstances and further no reasons whatsoever, have been given therein to exclude other natural heirs. According to him the Will (Ex. D-1) was never the testamentary document executed by deceased-[ENTITY] and is the creation of defendant No. 1. In order to further advance his aforesaid submissions Shri [ENTITY] urged that in the present case scribe of the Will, DW-2 [ENTITY] cannot be said to be an attesting witness so as to prove the due execution of the Will in question. It was further urged that the house of the appellant is standing on a portion of the land which earlier belonged to his deceased-father, [ENTITY]. Now if the entire . land goes to defendant No. 1 on the basis of the Will propounded by her, then his client would be rendered homeless, this can never be said to be intention of his deceased-father as it has come on record that the plaintiff was living separate in his house which stands on the land in question since the time of his father. Presence of [ENTITY], brother of the deceased, the other marginal witness at the time of execution of Ex. D-1 was stated to be highly improbable as, according to him, it has come on record that the deceased was not happily placed with his brother [ENTITY] at the time of execution of the Will in question. While referring to the statements of DWs, it was pointed out that the Will (Ex. D-1) is in ink, whereas DW-1 scribe has specifically stated it to be executed with a ball pen and the other DW-3 has stated it to be written in pencil while appearing in Court. Besides this, it was pointed out that defendants Nos. 2 to 7 have colluded with defendant No. 1 i.e. the beneficiary of the Will and in these circumstances these defendants conceded the claim of defendant No. 1 and have thus, admitted the execution of the Will (Ex. D-1) in her favour. On these basis, it was urged that the decree of the trial Court may be restored by allowing this appeal and setting aside the judgment and decree passed by the trial Court.
7. On the other hand, learned counsel for the defendants has controverted all the submissions made on behalf of the plaintiff and has submitted that the Will in question stands duly proved as is evident from the statements of DW-2 the scribe and DW-3, one of the two marginal witnesses of the Will in question. According to her, the Will (Ex. D-1) shows the stale of mind of the deceased [ENTITY], who in his wisdom thought it fit to bestow the entire property in favour of his wife looking to the fact that some of his children were still to be married and his sons were all settled in life except the unmarried one. It was urged on behalf of the defendants that the onus of proving the Will by defendant No. 1 stands adequately discharged as the requirements of [SECTION] of the [ACT] have been duly met in the present case. So far the capacity of scribe DW-2 to be an attesting witness also is concerned, according to her, cumulative effect depending upon totality of the facts and circumstances of each case has to be examined and evidence cannot be taken out of the context in which it is given. Thus, according to the learned counsel on these considerations execution of the Will (Ex. D-1) stands duly proved and she has prayed for dismissing the appeal.
8. Both the learned counsel have made reference to decided cases in support of their respective contentions to which a reference will be made hereinafter.
9. In order to properly appreciate the respective submissions made on behalf of the parties, it is necessary to make a brief reference to the evidence adduced by the parties before the trial Court.
10. Ex. D-1 is the Will, whereas PW-1 has appeared as his own witness, PW-2 is [ENTITY], PW-3 is [ENTITY], Secretary Panchayat and PW- 4 is [ENTITY], Member Panchayat of the village. On the other hand, defendant No. 1 has appeared as DW-1, Scribe DW-2 [ENTITY] has been examined besides them, DW-3 [ENTITY] is one of the two marginal witnesses. Ex. D-6 is the copy of mutation No. 41 pertaining to [ENTITY] and Ex. D-5 is the copy of mutation No. 136 relating to [ENTITY] and [ENTITY], both in Tehsil Indora, District Kangra, [ENTITY]
11. PW-1 plaintiff while appearing as his own witness has stated that no Will was executed by his father and after his death parties i.e. plaintiff as well as defendants Nos. 1 to 7 are owners in possession of the suit land. He has gone on record to state that last rites and obsequies were performed by all the parties i.e. plaintiff and defendants and he had gone to Haridwar in connection therewith, According to him the Will in question propounded by the defendant is fictitious and has been prepared after the death of his father. He denied the suggestion of the defendants that defendant No. 1 is in exclusive possession of the land in question. However, he admitted that he was living separately from his father 5-6 years prior to his death. He admitted that at the time of death of his father, one sister and two brothers were unmarried whose marriages were performed by his mother but in the next breath he stated that he also contributed towards the expenses. PW-2 is [ENTITY], who stated that he is aware of the land in suit which is owned by plaintiff and defendants, who are in joint possession thereof. According to this witness last rites and obsequies were performed by the parties jointly and plaintiff as well as [ENTITY] went to Haridwar. This witness had never heard of execution of any Will by [ENTITY], who did not execute any Will in his presence in favour of any-one. He feigned ignorance regarding deceased-[ENTITY] having executed Will on 24-12-1987 in favour of his wife Smt. [ENTITY] while in full senses and in the same breath he volunteered that no Will was executed. He has stated that plaintiff might be paying expenses to his parents when living in one house.
12. On the otherhand, Smt. [ENTITY] has appeared as DW-1 , Who has stated that [ENTITY] was her husband, who had executed a Will in her favour, suit land is about 8 Killas which has been entered in her name in the revenue papers and she is in possession of the same. In her cross-examination, she has admitted that [ENTITY], one of the marginal witnesses was not happily placed with them and he did not participate in the marriage of [ENTITY]-defendant, although she has further gone on record to say that their relations with [ENTITY] are cordial for 7/8 years since the time Will was executed. She has denied the suggestion made on behalf of the plaintiff that [ENTITY] also used to serve the deceased. Existence of the house of plaintiff on the land in question was admitted which was prior to the Will in question. While stating her possession over the suit land, she had also shown ignorance regarding the possession of the plaintiff over the suit land.
13. In the light of the aforesaid facts and submissions, the question which requires consideration is whether the Will (Ext. D-1) has been duly proved or not and whether it is shrouded by suspicious circumstances and what is the effect of non-mentioning of reasons to exclude the other natural heirs. So far execution and proof of the Will is concerned, [SECTION] of [ACT] deals with the same and for ready reference the same is reproduced hereinbelow :
"63. Execution of unprivileged Wills -
(a) and (b)
(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 necesssary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
14. Similarly, [SECTION] of the [ACT] mentions about the proof of the execution of a document required by law to be attested which is to the following effect:
"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."
15. According to the learned counsel for the plaintiff, [ENTITY] (DW-2), scribe of the Will cannot be termed as a marginal witness because according to him, he is merely a scribe and nothing more and in support of his this submission, he has placed reliance on a judgment of this Court reported in [PRECEDENT]. On the facts of that case, the learned Judge was of the view that unless it was shown by sufficient evidence that the person putting his signatures signed it for the purpose of attesting it or certifying that he has received from the executant a personal acknowledgment of his signatures, he cannot be regarded as an attesting witness. Besides this, there were other suspicious circumstances viz. non-examination of the witness of the Will who was alive. Besides this, the Clerk of the Advocate who scribed the Will having stated that the t estator was not present on the date when the Will was scribed. Further he also stated that the thumb impression of the testator was on the blank paper and it was at the instance of the Advocate that he scribed the Will and as such in those circumstances the counsel who scribed the Will was held not to be an attesting witness thereof. In the present case DW-2 scribe of the Will has stated that the Will (Ext. D-1) is in two pages and is in his hand and he has signed it as a scribe thereof. He has further stated that Ext. D-1 was scribed by him at the instance of [ENTITY], husband of defendant No. 1, who was in fit state of health and in sound disposing mind. After his having been read over the Will (Ext. D-1) to [ENTITY] the same was signed by him in Urdu and then the marginal witnesses had also signed it. Statement of this witness when read in conjunction with the statement of marginal witness, [ENTITY] (DW 3), it is evident that DW 3 is one of the attesting witnesses of Ext. D-1, the Will in question. This witness has stated that Ext. D-1 at page 2 thereof contains his signatures in Hindi which are on a Will that had been got scribed by [ENTITY] from [ENTITY] (DW 2). [ENTITY] had been read over and explained the contents of the Will and he had admitted the same to be correct. He was also in a fit slate of health and sound disposing mind. Thereafter, [ENTITY] had signed in Urdu in the presence of this witness. Although lengthy cross-examinatit,n was directed against this witness, but nothing material has come out so as to dislodge him. In the instant case, there is no dispute betweeen the parties that at the time of execution of the Will (Ext. D-1), one daughter and two sons of the deceased were unmarried, whereas his other sons were fending for themselves independently. The possibility of the deceased feeling that in case the property goes to all his natural heirs, the holding would be very negligible and thus, his unmarried sons and daughters would not be looked after and, therefore, the possibility of the entire property having been bequeathed in these circumstances in favour of defendant No. 1 cannot be completely ruled out, although there is no mention of this fact in the Will (Ext. D-1). Besides this, no suspicious circumstances have been spelt out by the plaintiff either in the plaint or in his statement. Explanation of the deceased having got the Will executed in favour of his wife, defendant No. 1 finds mention in the statement of DW 3, [ENTITY] and there is nothing either to discard or disbelieve this witness. Nothing has been attributed much less proved on record against this witness to show that he has some axe to grind with the defendants or has any enmity with the plaintiff to depose against him.
16. Besides this, looking to the tenor of the statement of DW 2, it would be safe to held that besides being scribe, his statement can be as an attesting witness and submissions to the contrary made on behalf of the plaintiff do not hold the field and are accordingly rejected.
17. So far the plea that [ENTITY] the other marginal witness being not happily placed with [ENTITY], is concerned, the same is rejected.
18. Another argument raised was that DW 2 is stated to have scribed the Will in question by means of a ball pen, whereas DW 3 has stated that the same was scribed with pencil. When a minute scrutiny of Ext. D-1 is made, it can be seen that the same is written with ink. This, according to Mr. [ENTITY], shows that DW 2 and DW 3 were not present at the time of execution of the Will and their statements are not worthy of any credence. Suffice to say that the plaintiff cannot make any capital out of this submission. It may be appropriate to mention here that the statements of these two witnesses were recorded after a gap of about more than six years. Human memory fades with the passage of time. However, their statements corroborate with each other so far those relate to material particulars. Simply because there is no mention of the natural heirs or no reasons have been assigned for exclusion of the natural heirs in the Will (Ext. D-1), this will not make the Will suspicious if it is otherwise proved from cogent and reliable evidence. Simply becuse DW 3 has not stated that he signed the Will in the presence of [ENTITY], executant, it cannot be laid as an absolute proposition that the same was not duly attested.
19. Another argument raised by Mr. [ENTITY] was that the Will is unfair inasmuch as that his client has been excluded and the sole beneficiary under the Will is defendant No. 1. It may be pointed out here that it is the intention and wish of the testator which has to be given effect to. Of course, subject to meeting other requirements of law, as has been held in the preceding paragraphs of this judgment, the intention and wish of the testator is writ large in this case and, therefore, no benefit can be derived by Mr. [ENTITY] as submitted by him.
20. Similarly, the argument of Mr. [ENTITY] that no person was called for from the locality to witness the Will (Ext. D-1) carries no weight. It may be pointed out here that it is for the executant to decide as to who are the person whom he can trust. It has come in the statement of DW 3 that his village is 1/2.Kms. from the house of the testator and he had been summoned by the deceased [ENTITY] through his son [ENTITY], defendant No. 3. Similarly, DW 2, [ENTITY] scribe has also stated that he was summoned by [ENTITY] through his son [ENTITY], defendant. At rhe risk of repetition, it may be pointed out here that no reason has been attributed or otherwise brought out in the cross-examination of both these witnesses so as to show that their presence at the time of execution and attestation of the Will is either improbable or they were not present. In these circumstanes, plaintiff cannot take any benefit on this ground also.
21. Mr. [ENTITY] placed reliance on [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT].
22. So far the two judgments of the Hon'ble Apex Court are concerned, they do not advance the case of the plaintiff in any manner whatsoever and on the basis of the principles laid down therein, it would be seen, that when once it is held that Ext. D-1 has been duly executed and proved in accordance with law, both these judgments support the case of defendant No. 1. Similarly, the case of [PRECEDENT] (supra) does not advance the case of the plaintiff as the question dealt with therein has no bearing on the facts of this case. So far [PRECEDENT] is concerned, if a reference is made to the facts of that case, it is clear that the defendant in that case had failed to show that the testator was not in a sound disposing state of mind and memory at the time of execution of the Will. Moreover, the Will was executed on 4-10-1978 and the testator died on 5-10-1978 within few hours of the execution of the Will. In addition to this, there was evidence on record to show in that case that one day prior to his death, condition of the testator was critical. He was sent back by the doctor to his village, where he died in the early hours of the morning.
23. On the other hand, the case of defendant No. 1 is supported by the case reported in [PRECEDENT]. In the instant case, the attesting witness DW 3 has narrated the sequence of events from which it can be inferred that the Will in question was" attested by him in the presence of testator [ENTITY].
24. In [PRECEDENT], a Division Bench of Patna High Court observed as under (at Pp 215 and 216):
" A person may be a witness to the execution of a mortgage or a Will 'and' yet may not have written his name at the time by way of saying that he was a witness. It is quite clear that in India no formal attestation clause is necessary. Ordinarily a string of signatures towards the end of an instrument or somewhere on the instrument without any explanation will be quite sufficient to show that the persons put their signatures by way of saying that they had seen the documents executed or has received an acknowledgment."
"Both [SECTION] of the [ACT] and [SECTION] of the [ACT] say that no particular form of attestation is necessary. If I may say so with respect, [ENTITY], C.J. is right in observing that mere signatures towards the end of an instrument of somewhere on an instrument without any explanation are quite sufficient to show that the persons put their signatures by way of saying that they had seen the document being executed or had received an acknowledgment. Such signatures in my opinion are also sufficient to show that they were put in the presence of the testator. However, as required by [SECTION] of the [ACT], at least one of the attesting witnesses should be examined in proof of the execution of the Will. Whalis required is that in order to prove the due attestation of the Will, the propounder of the Will has to prove that two witnesses saw the testator signing the Will and they themselves signed the Will in presence of the testator. In the instant case, one of the attesting witnesses [ENTITY] has proved it."
25. In the face of this position, it is adequately proved that the Will (Ext. D-1) stands proved to have been duly executed by the testator [ENTITY] as well as attested by [ENTITY] (DW 3) and [ENTITY], the other attesting witness thereof. In [PRECEDENT], the Hon'ble Supreme Court has observed as under (at p. 367 of AIR):
"It cannot be laid down as a matter of law that because the witnesses did not state in examination-in-chief that they signed the Will in the presence of the testator, there was no due attestation. It will depend on the circumstances elicited in evidence whether the attesting witnesses signed in the presence of the testator. This is a pure question of fact depending on appreciation of evidence;"
26. Applying these tests to the facts of the present case, it is clear that defendant No. I has been successful in proving the dye execution and attestation of the Will in question (Ext. D-1). Thus, the suit of the plaintiff has been rightly dismissed by the lower appellate Court and the judgment and decree under appeal deserves to be upheld.
27. No other point was urged by the learned counsel for the parties.
28. As a result of the aforesaid discussion, there is no merit in this appeal and accordingly the same is dismissed. No costs.