JUDGMENT Shiv Charan, J.
1. The present second appeal has been instituted against the judgement and decree dated 5.2.2008 passed by Addl. District Judge, Khurja District Buland Shahar in Civil Appeal No. 10/84 Smt. Bhagwan Dei and Ors. v. Kanchhi Lal and Ors. By the impugned judgement and decree learned Addl. District Judge, Khurja allowed the appeal of the appellants and set asided the judgement and decree of the trial court.
2. From perusal of the judgement of the court's below it is evident that Kanchhi Lal and after his death his sons instituted and maintained original suit No. 76 of 1980 in the court of Civil Judge(JD) Khurja Bulandshahar for cancellation of the will dated 27.12.76 executed by Godha in favour of Bhagwan Dei and others of his 1/2 share in plot No. 805 measuring three bighas one biswa and 9 dhoor situate at village Kamauna Pargana Pahasu District Bulandshahar. Prayer was also made for permanent prohibitory injunction not to interfere in the possession of the plaintiffs. It has been alleged in the plaint that Godha deceased was real brother of plaintiff Kanchhi Lal and he died on 19.1.80. That defendant No. 1 to 3 are the married daughters of Godha. Godha during his lifetime lived with Kanchhi Lal. Kanchhi Lal and his sons looked after the welfare of Ghodha and they had also been cultivating the land of Godha. At the time of his death Godha never executed any will in favour of the defendants No. 1 to 3. And hence after the death of Godha his property was inherited by the plaintiff Kanchhi Lal as his sole legal heirs and the property in dispute is Khata No. 61 plot No. 728 measuring 4 bigha 14 biswa and 13 dhoor and Khata No. 212 plot No. 805 measuring three blgha one biswa and nine dhoor to the extent of half share. After his death Kanchhi Lal occupied the property in dispute as his legal heirs and at present the property in dispute is in the possession of the plaintiff. That due to enmity certain persons of the village wanted to occupy the land of the share of Ghodha with the collusion of defendants No. 1 to 3. In the mutation proceedings before Tahsildar Khurja objections were filed by the plaintiffs and it was specifically alleged that no will was executed by Ghodha during his life time and no right and title shall accrue in favour of the defendant on the basis of the will. But even then defendants No. 1 to 3 and others continued to interfere in the possession of the plaintiffs even after the order of Tahsildar regarding mutation in favour of the plaintiffs, The defendants respondents contested the suit filed written statement and denied the allegations of the plaint. It has further been alleged that the defendant respondents are the daughters of Godha. And during his life time Godha executed a will in favour of his three daughters. It has further been alleged that Smt. Mahadei along with her husband lived in the village of Godha and rendered all source of services to him and that they were also looking after the agriculture of Godha. That Godha in his full sense and by his free will executed a will in favour of the defendants and it is wrong to alleged that the will is a forged document. That Godha died in suspicious circumstance and there may be possibility of murder.
3. On the pleadings of the parties learned Addl. Civil Judge(JD) framed as many as seven issues for the decisions of the suit. Both the parties adduced oral as well as documentary evidence in favour of their contentions. On the basis of the evidence learned Addl. Civil Judge(JD) judgement and decree dated 30.5.2003 decreed the suit of the plaintiffs appellants and the will dated 27.12.76 executed by Godha in favour of the respondent was declared as null and void and the same was cancelled. Relief of injunction was also granted. On being aggrieved from the judgement and decree of the trial court the defendant respondents instituted Civil Appeal No. 10 of 2002 and the Civil appeal was decided by Addl. District judge Khurja vide judgement and decree dated 5.2.2008 and by the judgement and decree the appellate court allowed the appeal and set asided the judgement and decree of the trial court. And on being aggrieved from the judgement and decree of the appellate court the second appeal has been instituted.
4. I have heard learned Counsel for the appellants on the point of admission of the second appeal for hearing and also perused the judgement of the courts below as well as other documents filed by the appellant on record.
5. It has been argued by learned Counsel for the appellant that the will in question dated 27.12.76 is a forged and fraudulent document. Godha during his life time executed no will in favour of the respondents-defendants. He also argued that will was not duly proved by the respondent as provided in the Evidence Act and the appellate court wrongly held that the respondents proved the will properly. He also argued that during mutation proceedings before Tahsildar the will in question was produced and the appellants filed objection in the mutation proceedings. The evidence was produced by both the parties in support of their contentions besides other evidence hand writing and finger print expert was also produced by the appellants and after considering the evidence present on the file the Tahsildar allowed the objection of the appellants and it was also held that will in question is a forged document and no mutation can be affected on the basis of this will. Mutation was ordered as provided in Section 171 U.P.ZALR Act. Inspite of the fact that mutation was allowed in favour of the appellant the suit for cancellation of the will was filed before the trial court as inspite of order of Tahsildar the defendant continued to interfere in the possession of the appellants over the property in dispute of the share of Godha. He also argued that substantial question of law is involved in this second appeal and he framed certain substantial question of law to the effect that whether the certified copy of the statement of attesting witnesses of will recorded in mutation proceedings were admissible under the evidence Act in Suit No. 76 of 1980 as has been relied by the appellate court and whether the appellate court is justified in holding that the will was proved by the defendants respondents even in the absence of attesting witnesses and a question was framed to the effect that the report of handwriting and finger print expert verifying the thumb impression of Godha on the will with the admitted thumb impression of Godha on register No. 8 maintained in the Sub-Registrar Office which is a public document is admissible and whether the appellate court is justified in ignoring the report of the handwriting expert. It has also been alleged that the finding of the appellate court is perverse.
6. I have considered the entire facts of the case as well as the submissions of the learned Counsel for the appellant. It is undisputed fact that defendants respondent 1 to 3 are the real daughters of Godha deceased. It is also undisputed fact that all these respondents are the married daughters. In view of Section 171 of UPZALR Act the married daughters shall inherit the property of a tenure holder only in the circumstance when there is no brother of the deceased and if there is brother of the deceased tenure holder then according to the provision as provided Under Section 171 of the Act the brother shall inherit the property. If it may be presumed that Godha executed no will then the property of the share of Godha shall be inherited by Kanchhi Lal brother of Godha. But in the present circumstance the respondent specifically alleged that Godha during his life time executed a will on 27.12.1976 in favour of the respondents. It has also been alleged that in view of this will the respondent inherited the property. In these circumstances it is the main controversial point to be decided that whether a will executed by Godha dated 27.12.76 was duly proved. According to the will Munshi Lal son of Bheem Sen and Babu Ram son of Uma Shankar were the attesting witnesses of the will. It is also undisputed fact that both these witnesses were examined by the respondents in the mutation proceedings before the Tahsildar. But both these witnesses Babu Ram and Munshi Lal were not examined before the trial court and only the certified copy of the statement of both these witnesses were filed before the trial court and the appellate court placed reliance on the statement of these two witnesses. It is also a fact that at the time of recording the evidence before the trial court both these witnesses were not alive. Hence in this circumstances it is a material question whether the statement of these witness are relevant and admissible in evidence. It has been argued by learned Counsel for the appellant that these witnesses were examined in the mutation proceedings before Tahsildar but inspite of the fact that they were alive at the time of the filing the suit, they were not examined by the respondents. But this fact has not been disputed by learned Counsel for the appellant that these two attesting witnesses were not alive at the time of recording the evidence before the trial court. Under these circumstances it was not possible to examine Munshi Lal and Babu Ram as attesting witnesses. Learned Counsel for the appellants argued that mutation proceedings Under Section 34 of the Revenue Act are summary proceedings and the statement recorded during the proceedings of mutation the statements of such witnesses cannot be relevant and cannot be admissible. But he has not stated that what will be the position if such attesting witnesses were not alive at the time when the evidence was recorded before the trial court. However, he produced the following judgement in support of his argument. He cited AWC 1999 page 1931 Narayan Singh v. Addl. Commissioner, Meerut and Ors.(High Court Allahabad single Judge it has been held in this judgement that"
Present petition arises out of proceedings under Section 34 of the U.P. Land Revenue Act. The said proceedings are summary in nature. In these proceedings, rights and titles of parties to the property in dispute are not decided. The orders passed in the said proceedings are not binding upon the parties or upon the courts in regular Suits or Proceedings....
7. In the same context learned Counsel for the appellants also cited 2002(2)(2) AWC page 1311 Madhav Pandey and Ors. v. Board of Revenue and Ors. (Hiqh Court, Allahabad) and in this judgement also the same principle has been reiterated. I agree with the judgement of this Court to the effect that the proceedings Under Section 34 of the Land Revenue Act is summary proceedings and right title of the parties cannot be decided finally in this proceedings and that the judgement in this proceedings cannot be binding on the civil court in regular case. But in the present case it is not the controversial point that whether the order passed by Tahsildar in mutation proceedings is binding or not. Because the order was passed by Tahsildar in mutation proceedings in favour of the appellant. The controversy in the present case is that whether the statement of attesting witnesses recorded in the mutation proceedings are admissible in regular suit in the circumstances when the attesting witnesses had died. This position was most material to be considered in the case. This fact has not been challenged by the appellant counsel that Munshi Lal and Babu Ram were not alive at the time of recording the evidence. Under these circumstances certified copies of the statement could have been filed in the regular suit and no such judgement of this Court and Hon'ble Apex Court has been filed that such a statement are not admissible. In this context Section 33 of the Evidence Act is most relevant. It has been provided in the Section ;
Evidence given by a witness in a judicial proceedings, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case, the court considers unreasonable:
Provided-
that the proceeding was between the same parties or their representatives In Interest;
that the adverse party In the first proceeding had the right and opportunity to cross examine;
that the questions in issue were substantially the same In the first as in that second proceeding.
Explanation- A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of the section.
8. Hence under the above provision of law the statement recorded in a earlier proceedings is relevant in the subsequent proceedings between the same parties or in the representatives of the interest. It is also essential that in that proceedings right to cross examine was provided to the adverse party and the question in issue were directly and substantially the same as in this proceedings. In the present case all the requirements of law are present. The proceedings before the Tahsildar were quashi-judicial in connection of mutation proceedings and question in issue directly and substantially was regarding; the genuineness of the will and these witnesses were cross examined by the counsel for the appellant. Hence I agree with this contention of the appellate court that the statement of these attesting witnesses are admissible Under Section 33 of the Evidence Act, irrespective of the fact that the proceedings was summary but even then the statement is admissible Under Section 33 of Evidence Act as all the requirement have been fulfilled in that present case.
9. Moreover if it may be presumed that the statement of Munshi Lal and Babu Ram cannot be relevant and admitted in the evidence then it is also material to be seen whether even in the absence of the certified copy of the statement of these witnesses whether the respondents have been successful in proving the will as required by law. Ajit Kumar D.W.3 was examined on behalf of respondent in order to prove the will and this witness was a deed writer in the Civil court Khurja and he stated that he prepared the matter of the will dated 27.12.76 executed by Godha. He also stated that at that time Godha was in fit condition physically and mentally and that he executed the will voluntarily with his free will of his entire movable and immovable property in favour of the three daughters, namely, Bhagwan Dei, Mahadei and Smt. Vedwanti. This this will was prepared in the presence of witnesses Munshi Lal Baburam and at that time signatures/thumb impressions were obtained or the executant and witnesses. A deed writer is also an attesting witness of the will because in his presence the witnesses and executant put their signatures and thumb impression on the will. It was this witness who prepared the will. It has been provided in Section 68 of the Evidence Act:
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.
{Provided that it shall not be....
10. Hence in view of Section 68 in order to prove a document which is required to be attested at least one attesting witness must be produced. Although as I have stated above, that Munshi Lal and Babu Ram were the attesting witnesses of the will and they were examined as attesting witnesses during the proceeding of mutation and as they died at the time of recording the evidence in the trial court hence the certified copies of the statement of these witnesses were filed before the trial court. I have also decided above that in view of Section 33 the statement of these witnesses is admissible in evidence besides this evidence also there is statement of Ajit Kumar Singhal D.W.3 deed writer and he specifically stated that the executant and attesting witnesses put their thumb impression/signatures on the will in his presence and in my opinion this is sufficient compliance for the proof of the will as provided in Section 68 of the Evidence Act. How a document is to be proved if the attesting witnesses cannot be found is also material. But in the present case Ajit Kumar Singhal D.W.3 has been examined to prove the will. Hence I am of the opinion that the will has been properly proved by the respondents.
11. Learned Counsel for the appellants also cited N. Kamalam (dead) and Anr. v. Ayyaswamy and Anr. It has been held by Hon'ble apex Court:
The effect of subscribing a signature on the part of the scribe cannot in our view be identified to be of same status as that of the attesting witnesses. The signature of the attesting witness as noticed above on a document required attestation (admittedly in the case of a will the same is required), is a requirement of the statute thus cannot be equated with that of the scribe....
12. On the basis of the judgement of Hon'ble Apex Court the appellant's counsel argued that the statement of Ajit Kumar Singhal D.W.3 is not relevant for proving the will according to law. But in the peculiar circumstances of the case the statement of Ajit kumar Singhal is relevant because the two attesting witnesses Munshi Lal and Babu Ram had died. But they were examined in mutation proceedings before Tahsildar and the statement of these two witnesses were filed in trial court. But Ajit Kumar Singhal was alive and he has been produced. In view of Section 69 of the Evidence Act this statement is relevant. It has been provided in Section:
If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.
13. As the attesting witnesses died hence in this circumstances the will in question could have been proved only in view of Section 69 of the Evidence Act and Hon'ble Apex Court has not considered this circumstance that if the attesting witnesses are not alive and in my opinion In view of Section 69 the statement of Ajit Kumar Singhal is relevant.
14. Learned Counsel for the appellants also cited AIR 2003 Supreme Court 761 Janki Narayan Bhoir v. Narayan Namdeo Kadam. But on the basis of this judgement of Hon'ble Apex Court no benefit can be given to the appellants. In the present case as attesting witnesses were not alive the will was proved in view of Section 69 of the Evidence Act.
15. It has also been argued by learned Counsel for the appellant that before Tahsildar in mutation proceedings handwriting/finger print expert, namely, P.S. Mumick was examined and expert report was called from this witness and he proved his report before the trial court also. That there is no circumstance to discard the statement of the report of handwriting and finger print expert, P.S. Mumick. That the appellate court committed gross illegality in not placing the reliance on the report of P.S. Mumick. That no report was called by the respondents of any expert for the proof of this fact that the will is bearing the thumb impression of Godha. I disagree with the argument of learned Counsel for the appellants. If at the instance of the respondents report was not called of the handwriting and finger print expert regarding T.I of Godha on the will in question then it cannot be presumed that the report of P.S. Mumick is a gospel truth and this report must be accepted in its entirety with any if and but. Learned appellate court has given cogent reason to discard the report and statement of expert. I agree with the reasoning of the learned appellate court. It is a known fact that the will come into operation after the death of the executant. When the will in question was put in operation at that time of Godha executant was not alive. If a report of handwriting/finger print expert is called regarding the genuineness of the disputed thumb impression/signatures of the dead person then it is also essential that disputed signatures or thumb impression must be compared with the admitted thumb impression and signatures of the dead person. In the present case the report of P.S. Mumick was called on the basis of comparison of the disputed signatures with the allegedly admitted thumb impression of Godha put in connection of some other documents put on register No. 8 of the Sub-Registrar office. It most also be proved that this is the thumb impression or signatures of the executant Godha. Evidence must be produced of this fact that the thumb Impression/signatures on Register No. 8 shown of Godha is of Godha and of no other person. Calling the report of expert on the basis of the alleged thumb impression/signatures on register No. 8 is not sufficient. The respondents must have also been called upon to admit or deny about the genuineness of the thumb impression/signature of register No. 8 of Godha and if it is admitted that on register No. 8 there is the thumb impression/signature of Godha report could have been called. But it has not been alleged by the appellants. Hence it is wrong to allege that the disputed thumb impression/signatures were compared by the expert with admitted thumb impression/signatures of Godha on register No. 8.... If the appellant got examined the disputed signatures with any other signature of Godha then it cannot be accepted as the thumb impression/signature of Godha unless it is proved. But there is nothing of this kind proved by the appellant. Hence there was no reason to accept the report of expert P.S. Mumick regarding the disputed signature of Godha. If in case the respondents has not invited any report of the expert than no adverse inference can be drawn against them. Because it must also be shown that admitted signature of Godha are in existence. The comparison can only be conducted with admitted T.V./signature. It is not at the whim of a particular party to allege that it is the admitted signature of a person and hence this may be accepted as specimen signature/thumb impression and can be compared with the disputed thumb impression/signatures. Otherwise also in view of several pronouncement of Hon'ble Apex Court the report of expert is not the gospel truth. The court is an expert of expert and the court may also compare and also consider the other circumstances and in the present case the appellate court considered all the circumstances and arrived at the conclusion that the disputed will was executed by Godha in favour of his daughters. Moreover, there was no male child of Godha and evidence has been produced that his daughter Ramadei had been living with Godha along with her husband looking after all his welfare and cultivating land hence this can be the reason for Godha to execute the will of movable and immovable property in favour of his daughters. If the will might have not been executed by Godha then the property might have been inherited by Kanchhi Lal his brothers in view of Section 171 of the Act and Godha wanted to deliver the property to his daughter hence he executed the will in favour of his daughters. And regarding mental and physical condition of Godha at the time of the execution of the will it is a undisputed fact. The witness of the appellant specifically admitted that Godha was in fit condition of mind.
16. For the reasons mentioned above I have arrived at the conclusion that the will was legally proved by the respondents and the appellate court recorded a finding of fact considering the evidence of the parties and in my opinion no substantial question of law is involved in the second appeal and substantial question of law framed by the appellant cannot be said the substantial question of law. In view of the judgement of Hon'ble Apex Court the substantial question of law must be of such nature which has not been decided by the Apex Court and by larger bench of the High Court on this point. In the present case the law Is very clear regarding the proof of the will and the will was proved according to the provisions of the Evidence Act. There appears no justification to interfere in the judgement and decree of the appellate court. The appellate court reappraised the evidence and recorded its own findings on the facts in issue. I do not think any justification to admit this second appeal for hearing and the same is liable to be dismissed summarily at this stage.
The second appeal is dismissed summarily at this stage.