Full Text
HIGH COURT OF DELHI
JUDGMENT
NITIN VIG ..... Petitioner
Through: Mr. Rohit Oberoi, Adv.
Through: Mr. Anand Verdhan Maitreya, Adv. Mr. Rakesh Mehra, Adv.
1. By way of the present petition filed under Article 227 of the Constitution of India, the petitioner challenges the order dated 11.11.2022 passed by the learned Additional District Judge (“Trial Court”) in Probate Case No. 42142/2016 titled as “Nitin Vig v. Chander Prakash Mehra & Ors.” whereby the application of the petitioner filed under Section 151 of the Code of Civil Procedure, 1908 (in short “CPC”) for summoning the official records from DDA for verifying the signatures of the deceased Suraj Prakash Mehra has been dismissed with a cost of RS. 10,000/-.
2. The brief facts that arise from the present petition are that the respondent herein is the brother of deceased Suraj Prakash Mehra who expired on 16.12.2006. He was married to Smt. Vijay and out of their wedlock no issue was born. He had separated from his wife during his lifetime and her whereabouts were not known to the deceased Suraj Prakash Mehra and his family.
3. Respondent no. 1/Chander Prakash Mehra filed a probate petition bearing No.42327/2016 on 07.02.2007 before the Learned Additional District Judge, Tis Hazari Courts, Delhi titled as “Chander Prakash Mehra Vs. State & Ors.” for the grant of Probate on the basis of the alleged Will dated 15.03.1977 of the deceased Suraj Prakash Mehra. In response, the petitioner and Respondents No. 2 to 6 had filed detailed objections to the said probate petition wherein, they stated that the Will is fabricated and forged by respondent no. 1 to claim the property i.e. flat bearing No. 7B, First Floor, G-8 Area, Rajouri Garden, New Delhi (in short “subject property’) of late Suraj Prakash Mehra for himself.
4. The petitioner claimed that the Will dated 13.6.1990 is the last will & testament of the deceased Suraj Prakash Mehra, based on which he filed a separate Probate Petition bearing no. 42142/2016 (earlier Probate Case No.155/2007) titled as “Nitin Vig Vs. State & Ors.” for the grant of Probate before the learned District Judge, Tis Hazari Courts, Delhi on 07.08.2007. The issues were framed in both the matters vide order dated 11.04.2008, as the parties to the petitions are contesting the validity of two different Wills of the deceased Suraj Parkash Mehra and both the matters were clubbed for the purpose of recording of evidence. The probate case no. 42142/2016 in respect of Will dated 13.06.1990 of deceased Suraj Prakash Mehra was taken up as the leading case by the learned Trial Court and the petitioner was directed to lead his evidence first. During the pendency of trial in probate case bearing no. 42142/2016, the petitioner Chander Prakash Mehra died on 28.09.2017 leaving behind two sons and a daughter who have been impleaded as legal heirs of deceased Chander Prakash Mehra. In the meanwhile, some more legal heirs of other deceased respondents were also brought on record.
5. The evidence of the petitioner commenced on 11.08.2009 and was closed at his behest on 03.10.2013. Respondent no. 1’s evidence commenced on 09.09.2008 and was closed vide order dated 19.10.2022 and on the very same day, the petitioner filed an application U/S 151 CPC to summon the record of the DDA to prove the signatures of the deceased Suraj Parkash Mehra in the records submitted by him to the DDA. The same was dismissed by the learned Trial Court vide the impugned order dated l[1].11.2022. Aggrieved by the said order, the petitioner has invoked the jurisdiction vested in this Court by Article 227 of the Constitution of India. Submissions of the Parties
6. The learned counsel for the petitioner submits that the production of the aforesaid documents is absolutely essential for effective adjudication of the real question in controversy between the parties in as much as, the respondent no. 1 herein has relied upon the Will dated 15.03.1977 purportedly executed by late Suraj Prakash Mehra and a comparison of the signatures of testator on the documents to be produced by the DDA with the alleged signatures of the testator on the Will dated 15.03.1977 would help in determining the issue.
7. He submits that the learned Trial Court failed to acknowledge that the case was fixed for the evidence of the respondent no. 1 in the Probate case for several years. Hence, the learned Trial Court ought to have been liberal in allowing the application of the petitioner for summoning the record from the DDA rather than adopting a technical approach.
8. Learned counsel further submits that the learned Trial Court has failed to appreciate that the petitioner has no access to bring the record pertaining to allotment of the subject property directly before it and hence, he moved an application on 19.10.2022. Moreover, no prejudice would have been caused to the respondents in case the said witness is summoned and examined by the petitioner in support of its case.
9. To strengthen his pleas, the learned counsel placed reliance on the following judgments:
(i) Y.S Manchanda v. Jitender Chopra FAO (OS) 45/2015
(ii) Surjit Singh & Ors. v. Jagtar Singh & Ors. AIR 2007 P&H 1
(iii) Doddabsamma v. Neelamma W.P 112464/2014
(iv) Punjab Steel Corporation v. M.S.T.C Ltd. Criminal Revision NO. 1427/2001
10. Per contra, learned counsel for the respondents opposed the submissions of the petitioner by submitting that the said application has been moved by the petitioner merely to delay the adjudication of the two probate petitions pending between the parties before the learned Trial Court.
11. He contends that the petitioner was given opportunities to lead evidence before the learned Trial Court and it was only after examination of all the witnesses that his evidence was closed vide order dated 03.10.2013. After almost 9 years, when the matter is listed for final arguments, the petitioner has filed the said application to derail the matter further, which should not be permitted. Reasons and Conclusions
12. This Court has considered the submissions of learned counsel for the parties and perused the record. To begin with, it is relevant to note the findings of the learned Trial Court vide the impugned order. The learned Trial Court has noted that the petitioner has exhausted the opportunity to prove his case in the present petition as well as in the connected case and has examined six witnesses in support of his case and thereafter himself closed his evidence vide statement dated 03.10.2013.
13. The learned Trial Court was not convinced to allow the application of the petitioner moved under Section 151 of the CPC as it found that the application was highly belated being moved almost 9 years after the petitioner’s evidence was closed, specifically when the name of the witness purported to be summoned from the DDA is not even mentioned in the list of witnesses. It also weighed heavily with the learned Trial Court to note that the petitioner had earlier moved an application on 17.11.2008 before the learned Trial Court seeking directions to produce certain documents lying in a sealed almirah for the purpose of cross examination of witnesses, which application was dismissed and the said order has attained finality. The documents to be produced from the office of the DDA also included the said documents. Therefore, the record sought by the petitioner, the learned Trial Court did not find it necessary to summon such record from the office of the DDA.
14. Before probing into the facts, it is pertinent to mention that a Will is an instrument of testamentary disposition of property executed by a testator/testatrix bequeathing a property during his/her lifetime to be acted upon his/her death. A Will has to be proved like any other document in accordance with Section 68 to 71 of the Indian Evidence Act, 1872 (in short “Act”). However, a Will has to be executed in terms of Section 63 of the Indian Succession Act, 1925 and execution of it is to be proved in terms of Section 68 of the Act.
15. The principles required to prove the validity and execution of a Will have been laid down in the decision of “Meena Pradhan and Ors. vs. Kamla Pradhan & Anr.” [(2023) 9 SCC 734], wherein by the Apex Court has observed as under:-
(b) It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary;
(c) Each of the attesting witnesses must have 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 such signatures;
(d) Each of the attesting witnesses shall sign the will in the presence of the testator, however, the presence of all witnesses at the same time is not required;
10.4. For the purpose of proving the execution of the will, at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined;
10.5. The attesting witness should speak not only about the testator's signatures but also that each of the witnesses had signed the will in the presence of the testator;
10.6. If one attesting witness can prove the execution of the will, the examination of other attesting witnesses can be dispensed with;”
16. Reverting to the facts of the present case, the petitioner is seeking to summon the official records from the office of the DDA on the contention that there will be signatures of the deceased in the records of the DDA which the petitioner wants to use for comparison of the signatures stated to be appearing in the Will. Notably, this is not the manner in which the signatures of the deceased are to be proved or disproved on a Will propounded by a party, however, it could be only one of the circumstances. At the stage of summoning of the record, the court is not called upon to examine the admissibility of a document. The court will form a judicial opinion about the admissibility, proof and relevance of the document may be at the time of recording of the evidence or at the time of disposal of the case. At that stage, not only the document but the statement of witnesses would be taken into consideration from the entire record of the case.
17. Having considered the aforesaid, the impugned order is set aside. The petitioner is permitted to summon official records from the DDA for which only one opportunity is granted and the said date of hearing shall be fixed by the learned Trial Court as per its convenience, subject to the petitioner paying the cost of Rs. 15,000/- to the respondents, due to the delay caused by the petitioner in not pursuing the case diligently. The aforesaid cost to be paid before the learned Trial Court on the next date of hearing. The judgments relied upon by the petitioner are decided on their own facts, which are distinguishable from the facts of the present case.
18. The petition is allowed accordingly. Pending application stands disposed of.
SHALINDER KAUR, J. AUGUST 02, 2024