IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR SWGLE BENCH SECQND APPEAL N0.^fc-> OF 2005 APPELLANT PLKW -TJ:FF <^ /.i^^ o^l^ .•€^rr «9':^A ^ Shyam' Bai W/o Late Mangaluram Panika, Through L.R's Arjun Das S/o Hari Das Panika, aged about 31 years, R/o Village Ponda, Tahsil Gariyaband, Distt- Raipur C.G. ,w" VERSUS RESPONDENTS fD^EN-Dftf^TS ^> 1. Balduram, S/o Guharam Panika, aged about 55 years, R/o Village Chaandapara, Gadhbehra, Pithaura, Tehsil and Distt - Mahasamund. C.G. 2. State of Chhattisgarh, Through the Collector Dhamtari, C.G. ^-»-" MEMO OF SEeONDAPPEAL UNDER SECTIONIOO OF THE CODE OF CIVIL PROCEDURE. 1908. "•?»'?-l-5'E5'Tra"<fcliBfiJff State of Chhattisnarh [Passed ono.2412/05] Mi' The appellant has preferred this second appeai as the suit filed by appellanyplalntiff for declaration of title, possession and damages has been rejected bythe learned l!nd Civil Judge, Class-1, Dhamtari vide order dated 04.10.2002 passed in Civtl Suit No. 04-A'99 and the Civil Appeal No. 157-A/04 has also been dismissed by the learned Additionai District Judge, Dhamtari vide impugned order dated 13.04.2005. (Parties hereinafter shal! be referred to as per their description before the trial Couft.) The claitn of the plaintiffi is based on the Wi!l of Ex.P/6 executed by the orig'nai p!aintiff-Shyam Bai on 22.06.1985 i.e. three days after institution of the suit. The learned trial court has held the Wil! of Ex.P/6 susplcious on the ground that though the Will is written on two leaves, the first page of the Wil! does not bear the thumb impression of the testatrix and there is manipuiation over the alleged thumb impression of Shyam Bai. The Will was executed in the presence of the plaintiff-beneficiary of the Wii! and there is discrepancy in the statements of the plaintiff and P.W.2 who has attestedtheWi!!. _—— 2. - 7. The learnsd !ower appellate Court has also heid the Will of Ex.P/S suspicious and as not proved on the ground that only one attestin< witness Bharafat has been examined by the piaintiff as P.W. 2 and this witness has not stated that the Will was executed by the testatrix in the presence of other attesting witness and that the other witness has signed the same in his presence as attesting witness. As psr Section 68 of the Evidence Act and Section 63 (c) ofths Succession Act, 1925, the Will is requirsd to be attested by two attesting witness and accordingiy, the Wil! has not been proved as per iaw. Learned counsel for the appeliant reiying upon the judgment reported in AiR 1981 H.Q.C. 29 (A!l.) in the matter of Bala Prasad and etc. Vs. Shola Nath and others submits that where attestation of the Will by one witness is proved and the presence of other witness was atso provsd but his signature was not proved, the requirements of Section 68 and 69 of the Evidence Act is satisfied and the document becomes admissible in evidence. However, further relying upon the judgment of the M.P. High Court delivered in the matter of Chatra Pratap Sinah Vs. Tulsi Prasad and 2the£s_reported in 2003 M.P.L.J. 293 iearned counsel for the appellant/plaintiff submits that where the attesting witnesses are dead and the original document is not traceable, in that case proof of attestation and execution of the original documents can be done by leading secondary evidence. ! have heard learned counsel for the appeliant/plaintiff. Both the Courts below after marshallina the evidence avaiiable on record have arrlved at the conclusion that the Will in question is a suspicious document and the plaintiff has not proved the execution of the Will as P.W. 2 Bharatial has not stated th.at the Will was attested by another witness who was present at the time of execution. From perusai of the above cited judgment In the matter Baia Prasad and etc. (supra) it appears that it reiates to a Wi!! which was duly reglstered by the Sub- Registrar in the house of the executant. i-ic'wever, in the instant case the —-3 Wii! is unregistered and ths the Wil! does not contain thum pointed out towards certain impression of the executant •arned trial Court has found thaf first page of ib Impression of the executant and has also suspicious circumstances regarding thumb ,'ertheWiH. Thus on the basis of aforesaid analysis, the concurrent findings of both the Courts below that the Will in question is a susplcious document is a findin< of fact and the same has been amved at on the basis of proper appreclation of evidence available on record and therefore, ! am of the opinion that no substantia! question of law arises for adjudlcation of this appea!. Accordingiy, the appeal is dismissed. However, there shai! be no order as to costs. __— -———— Sd/- Dhirendra Mishra Judge \<aW^