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RSA NO. 56/2010
Date of Decision: 18th March, 2010 BHIM SINGH ..... Appellant
Through: Mr. Vijay Kumar Singh and Mr. Jitender Singh, Advocates.
Through: Mr. Rohit Kumar, Advocate.
JUDGMENT
(1) Whether reporters of local paper may be allowed to see the judgment? (2) To be referred to the reporter or not? (3) Whether the judgment should be reported in the Digest ?
JUDGMENT
ARUNA SURESH, J. (Oral) CAVEAT NO.83/2010
1. Mr. Rohit Kumar, Caveator is present. He accepts notice on behalf of the Respondent.
2. Hence, application stands disposed of. CM 5002/2010 (delay)
3. There is delay of about a month in filing the appeal. 2010:DHC:1614
4. For reasons stated in the application, it is allowed and delay in filing the appeal is hereby condoned. CM APPL.5003/2010 (exemption)
5. Exemption allowed subject to all just exceptions.
6. Application stands disposed of. RSA 56/2010
7. Appellant filed a suit for possession against the respondent in respect of H. No.38, Village Jharia Maria, New Delhi. Case of the appellant as set out in the plaint was that he was nephew of deceased Bengali, who had two wives, namely, Smt. Rumali and Smt. Simiriti. He had no issue from either of his wives. He died issueless on 16th February, 1987. Bengali had brought up appellant since the age of 10 years. Bengali executed a Will in his favour bequeathing all his properties including suit property to him. Claim of the appellant was disputed by the respondent on the grounds that he was given in adoption to Bengali when he was about 2½ months old and after adoption, he became member of the Joint Hindu Family and acquired a right in all the properties of Bengali. After the death of Bengali, properties devolved upon him and two widows of Bengali in equal shares. Respondent also disputed genuineness of the Will allegedly executed by deceased Bengali in favour of the appellant.
8. Trial Court vide its judgment and decree dated 24th January, 2006 dismissed the suit of the appellant. Appellant preferred a Regular Civil Appeal being RCA No.32/09 challenging the judgment and decree of the Trial Court. Appellate Court agreeing with findings of the Trial Court found no merits in the appeal and dismissed the same vide its impugned judgment and decree dated 9th November, 2009.
9. Being aggrieved by the said judgment and decree of the First Appellate Court, appellant has filed this appeal under Section 100 CPC raising following substantial question of law:-
10. Learned counsel for the appellant has submitted that neither Trial Court nor Appellate Court appreciated evidence of the appellant produced on record to prove the Will, which was duly registered and attested by two witnesses. He has submitted that the Will stood proved by PW[4], a Clerk from the Sub-Registrar Office at Asaf Ali Road, New Delhi, who verified the registration of the Will and his statement became relevant in the absence of attesting witnesses to the Will, who had died before filing of the suit, as registration of the Will is a strong factor to prove the genuineness of the Will.
11. Submissions, as made by counsel for the appellant, are clearly a challenge to the finding on facts by the courts below. Even substantial question as suggested involves appreciation of oral evidence adduced on record by the parties. It is not the case of the appellant that findings of the Trial Court as well as of the Appellate Court are perverse findings on facts.
12. Be that as it may, admittedly, appellant did not examine any of the two attesting witnesses to the Will because according to him they had expired and could not have been produced by him to prove attestation of the Will. Trial Court as well as the Appellate Court examined oral evidence of the parties vis-à-vis the impugned Will. It is pertinent that appellant himself never stepped in the witness box to support his case. PW-1 who happened to be son of the appellant had deposed that his father, the appellant was never adopted by Bengali. Son of the appellant is not an attesting witness to the Will. PW-2, UDC from MCD could only prove the mutation of the property in the name of the appellant in 1987 when he had moved an application before MCD for mutation of the property in his name. His statement was rightly not accepted by the Court for the simple reason that UDC from MCD, being official witness, could not prove the genuineness of the Will, allegedly executed by Bengali during his life time in favour of the appellant. Similarly, Trial Court rightly did not give any importance to the testimonies of Manohar Lal, a witness summoned from DESU and PW-4 Sh. Bhagwan Sahay, a witness summoned from Sub-Registrar office, as none of these two witnesses could depose anything on execution of the Will by deceased Bengali during his life time. Trial Court also took into consideration the fact that Sh. Bhagwan Sahay from Sub-Registrar office only proved registration of the Will and its certified copy Ex.PW4/1.
13. Appellate Court did record other suspicious circumstances which shrouded genuineness of the Will. Appellate Court observed that Attorney of the appellant who proved on record the execution of the Will was a minor on the date of execution of the Will and his statement was inconsistent about place of registration of the Will, i.e. if it was at Bhadur Shah road or at Asaf Ali Road and the presence of the witness was suspected. Admittedly, appellant never filed any petition for probating the Will in question.
14. Under these circumstances when the Will was not accepted by the courts below on appreciation of oral evidence adduced on record, I am of the view that no substantial question of law arises in this appeal.
15. Hence, appeal is dismissed being without any merits. CM No.5001/2010 (for stay)
16. Since petition has been dismissed, this application has become infructuous. It is accordingly disposed of.
ARUNA SURESH (JUDGE) MARCH 18, 2010 sb