JAI BHAGWAN RAWAT v. STATE & ORS

1. Whether the reporters of local papers may be allowed to see the judgment? No

2. To be referred to the reporter or not? No

3. Whether the judgment should be reported in the ‘Digest’? No REKHA SHARMA, J. (ORAL) This appeal has been preferred by the appellant against the order of an Additional District Judge, dated May 25, 2009 dismissing a probate petition filed by him on the ground that he has failed to prove execution of the Will dated January 25, 1984 as the last Will and testament of deceased Smt. Hukma Devi. It is not disputed by the appellant that no attesting witness to the Will was examined during the trial of the case. The only grievance of learned counsel for the appellant against the impugned order is 2010:DHC:648 that the learned trial Judge had not granted time to the appellant to adduce secondary evidence, as the attesting witnesses to the Will were not available. A perusal of the impugned judgment goes to show that the evidence of the appellant/plaintiff was closed on August 04, 2006. The appellant moved an application on December 09, 2006 for recalling of order dated August 04, 2006 which was dismissed on March 30, 2007. Admittedly, the appellant/plaintiff preferred no appeal, revision or a Civil Miscellaneous (Main) in this Court either against the order dated August 04, 2006 closing his evidence or against the order dated March 30, 2007 dismissing the application for recalling of order dated August 04, 2006. It is only now after the trial Court has finally decided the probate petition, that the appellant is finding fault with the orders dated August 04, 2006 and March 30, 2007. The time for doing so has long passed. It is too late in the day to protest. It is well settled that one of the attesting witnesses in terms of Section 68 of the Evidence Act is required to be examined to prove the execution of the Will of which the probate is sought. This having not been done, I find no merit in the appeal. The same is dismissed.

REKHA SHARMA, J. FEBRUARY 03, 2010 ka