2008 (4) TMI 832 - SC - Indian Laws

Summary

Issues Involved:
1. Ownership of the suit property.
2. Entitlement to possession of the shop in question.
3. Validity of the Will dated 25.9.1981.
4. Entitlement of defendants to the counterclaim of ownership and co-sharership.

Summary:

1. Ownership of the Suit Property:
The appellants claimed ownership and possession of the suit property, a shop, as co-sharers to the extent of 6 marlas out of the land measuring 3 kanal and one marla. The Trial Court raised the issue of whether the plaintiff is the owner of the suit property (OPP).

2. Entitlement to Possession of the Shop:
The Trial Court also raised the issue of whether the plaintiffs are entitled to the possession of the shop in question (OPP).

3. Validity of the Will Dated 25.9.1981:
The core issue revolved around the interpretation of Section 69 of the Evidence Act, 1872, concerning the validity of a Will executed by Ram Bux in favor of the respondent. The Trial Court found the suit bad for non-impleading necessary parties but proceeded to consider the validity of the Will to avoid remand. The Trial Judge opined that the Will was not proved according to Section 68 of the Indian Evidence Act, as the plaintiff failed to examine at least one attesting witness. The First Appellate Court held that the Will was attested by two witnesses, but one had died, and the other had allegedly joined hands with the opposite party and left the country. The High Court dismissed the Second Appeal, stating no substantial question of law arose for consideration.

4. Entitlement of Defendants to the Counterclaim:
The Trial Court also raised the issue of whether the defendants are entitled to the counterclaim that they are the owners of the shop and co-sharers to the extent of 0-6 marlas of the land detailed in the counterclaim (OPD).

Legal Analysis:
The Supreme Court emphasized that a Will must be attested by two witnesses as per Section 63(1)(c) of the Indian Succession Act and proved according to Section 68 of the Indian Evidence Act. The Court noted that Section 69 applies when no attesting witness can be found, allowing proof through handwriting evidence. The Court found that the plaintiff failed to exhaust all processes to compel the attendance of the attesting witness, Harnek Singh, and thus could not invoke Section 69. The Court cited precedents emphasizing the necessity of exhausting all legal processes to compel witness attendance before invoking Section 69.

Conclusion:
The Supreme Court set aside the judgments of the High Court and the First Court of Appeal, allowing the appeal with no order as to costs. The Court held that the plaintiff failed to prove the due execution of the Will as required by law, and the statements made by counsel or the respondent himself could not substitute for evidence warranting the invocation of Section 69 of the Evidence Act.