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 sunita