Full Text
HIGH COURT OF DELHI
JUDGMENT
57289/2023 ANIL KHANNA & ANR ..... Appellants
Through: Mr. Samar Singh Kachwaha & Mr. Agnish Aditya, Advocates.
Through: Mr. Anupam Srivastava & Mr. Vasuh Misra, Advocates for R-2
SI Narasi Prasad Meena, PS New Friends Colony
1. The aforesaid applications have come up for decisions in the pending appeal preferred by the appellant No.1/Anil Khanna supported by his son appellant No.2/Rajat Khanna challenging the common judgment dated 09.04.2014 passed by learned Additional District Judge-12, Central District, Delhi, whereby the learned Trial Court decided the three probate petitions, viz.
(i) Probate case NO. 57/13/97 titled Anju Kapoor v. State (NCT Delhi & Ors), (ii) Probate case No. 22/98/13 titled Anju Kapoor v. State, (iii) Probate case No. 98/13/99 titled Geeta Khanna v State, which were clubbed together vide order dated 13.05.2008.
2. Shorn of unnecessary details, whereas the probate case bearing No. 57/13/97 titled Anju Kapoor vs. State was decided in favour of the petitioner/daughter Anju Kapoor, who propounded that the holographic Will dated 07.11.1996(Ex. PW 2/2), purportedly executed by late Shri Atam Swarup Khanna (hereinafter referred as the testator), vide the impugned judgment, the other two probate cases of her brothers Anil Khanna as well as second brother Ajay Khanna, (since deceased, represented through his wife Geeta Khanna and children) who propounded Will dated 06.03.1997 of the testator were dismissed.
3. It is pertinent to mention that the learned Trial Court framed the following issues for consideration: - “(i)Whether the Will dated 07.11.1996, propounded by the petitioner is duly executed last and final Will of the testator in a sound disposing mind? OPP. (ii)Whether the petition is liable to be dismissed in view of the objections taken by the objectors? Onus placed on objectors.
(iii) Relief.”
4. The petitioner/Anju Kapoor in order to substantiate that the Will dated 07.11.1996 was in fact the last and final Will of her father bequeathing certain properties in her favour, examined PW-1 Mr. Suresh Kumar, who claimed himself to be a family friend of the deceased testator besides PW-2 Radha Tayde, who was claimed to be the maid/servant of the deceased.
5. On the other hand, objector Anil Khanna, who is the appellant No.1, examined not only himself but also RW-2 Dr. Bharat Inder Singh. On the conclusion of evidence in the long and protracted trial that remained pending in the Court, eventually vide impugned judgment dated 09.04.2014, the learned Trial Court held that petitioner Anju Kapoor, who is respondent No.1 in the present appeal, has been able to substantiate that the testator had executed the Will dated 07.11.1996 in a sound disposing state of mind. Accordingly, the probate petition No. 57/13/97 was allowed, which is assailed in the first appeal before this Court.
6. On the filing of the present appeal, this Court, on finding that the issues raised in the appeal require serious consideration, directed status quo to be maintained with respect to the properties encompassed in the Will dated 07.11.1996 viz. property No. C-4/140, Safdarjung Development Area, New Delhi and Ground floor of D- 837, New Friends Colony, New Delhi.
7. In the said backdrop, the appellants/applicants have moved CM APPL. 57289/2023 filed under Order XLI Rule 27 read with Section 151 of the Civil Procedure Code, 1908[1] seeking to adduce additional evidence, examine witnesses and appoint a Local Commissioner, while also subsuming CM APPL. 26049/2017 & CM APPL. 872/2018. Reply to the application has already been filed on behalf of respondent No.1, who is the main contesting party.
8. The applicants/appellants reiterating that there were serious challenges to the legality and validity of the impugned Will dated 07.11.1996 of the testator, state that the property at Safdarjung Development Area had been purchased in the name of his mother, who later on relinquished her share in the property and the applicant constructed a house over the same out of his own funds; and that sometime in 1973, his father entered into a family settlement whereby applicant/appellant No. 1 relinquished his 2/3rd share in the said property in favour of his late father A.S. Khanna as well as his brother Ajay Khanna (since deceased); and that later on, his father, out of the profits earned by their company, bought a plot of land measuring 500 square yards in New Friends Colony.
9. It is further stated that since the applicant/appellant No.1 had relinquished 2/3rd of the share in the property at Safdarjung Development Area, his late father was left with 1/3rd share in the same property in 1973, and therefore, such property could not have been the subject matter of the Will. It is stated that his father was an astute businessman, having strong understanding of legal affairs, therefore, it was very unlikely that he could have executed the impugned Will dated 07.11.1996, and he was, in all likelihood, being coerced by his sister Anju Kapoor when their father was hospitalized, into scribbling these lines into a notebook and later on forging his signatures.
10. In the said background, the applicants/appellants state that they need to produce additional evidence on the record so as to bring to the fore the fact that they had filed a complaint dated 07.10.1999 before the concerned MM, which led to the lodging of FIR No. 688/99 at PS New Friends Colony for the forgery committed by his sister Anju Kapoor. However, the Investigating Officer filed an incomplete charge-sheet on 04.12.1999 without proper investigation during the pendency of the probate proceedings. It is further the case of the applicant/appellant that the Investigating Officer had been directed to seize the original Will, affording him the liberty to obtain it from the Probate Court so as to verify the signatures of his late father Sh. A.S. Khanna, besides veracity of voice recording of Ms. Neena Kapoor, a purported witness to the impugned Will dated 07.11.1996, who was not examined during the probate proceedings. It is stated that Ms. Neena Kapoor, in such recordings acknowledged that the impugned Will was never executed by late Shri A.S. Khanna. It is pointed out that because of the failure of the Investigating Officer to conduct a fair investigation, eventually the accused came to be discharged by the learned ACMM, Saket Courts vide order dated 08.07.2017, which order has been assailed before the High Court in W.P.(C) NO. 1651/2018, which is still pending for a final decision. It is stated that there is a compelling legal necessity to get the holographic Will dated 07.11.1996 examined forensically so as to bring out the true and correct facts before this Court. It is further stated that even Rupender Kapoor, brother of Ms. Neena Kapoor gave an affidavit that he was an eyewitness to the process of execution of the alleged Will dated 07.11.1996, which was fabricated after the demise of the testator and the signatures of attesting witness Suresh Kumar were forged on the last page of the Will.
11. The applicants/appellants seek permission to allow them to produce additional evidence on the record in the nature of recording of testimony of Rupender Kapoor besides Ms. Neena Kapoor, and examine the recorded transcripts of Ms. Neena Kapoor apart from the evidence consequent to forensic examination of the impugned Will in question.
12. Learned counsel for the applicant/appellant has vehemently urged that the additional evidence, which is now sought to be produced, has a material bearing on the outcome of the entire matter as that would demonstrate that the impugned Will dated 07.11.1996 was forged and fabricated and heavy reliance is placed on decision in Union of India v. Ibrahim Uddin.[2]
13. This brings us to CM APPL. 6107/2019, which has been moved on behalf of the applicant/Investigating Officer in FIR No.688/99 lodged at PS New Friends Colony based on complaint of the appellant and it is prayed that the impugned original holographic Will dated 07.11.1996 be handed over to him as per law so as to get it forensically examined. Learned counsel for the applicants/appellants in this regard has relied heavily on decision in Rajendra Prasad Gupta v. Prakash Chandra Mishra[3]. Needless to state that the aforesaid applications are opposed tooth and nail by respondent No.1, Anju Kapoor, who is the main contesting party and beneficiary of the impugned Will dated 07.11.1996.
ANALYSIS AND DECISION:
14. Having heard learned counsel for the parties and on perusal of the entire record besides the written submissions filed on the record on 19.12.2023 & 20.12.2023 by the parties, I find that both the aforesaid applications are misconceived and ill-conceived, and thereby not
15. Without commenting on the merits of the matter, since it has been vociferously canvassed by the learned counsel for the applicants/appellants that this Court should first take up and decide the aforesaid applications in view of decision in the case of Ibrahim Uddin (supra), it would be expedient to reproduce provisions of Order XLI Rule 27 of the CPC which provides as under: -
16. A careful perusal of the aforesaid provision would show that the Appellate Court may allow production of additional evidence provided the Court below refused to admit evidence, which ought to have been admitted; or if it is established by the party seeking to produce additional evidence that such evidence was not available or not known despite exercising due diligence and of course, a third requirement is that the Appellate Court requires such documents to be produced or any witness to be examined to enable it to pronounce a judgment or for any other substantial cause.
17. At the outset, it was acknowledged by learned counsel for the applicants/appellants that during the course of the long trial, although the transcripts of the conversation of Neena Kapoor, who was a cousin sister of respondent No.1/Anju Kapoor, were placed on the record, the said witness was not examined in support of the case of the applicants/appellants and a lame plea was taken that the said key witness could not be examined due to wrong legal advice. Likewise, even Rupender Kapoor, who supposedly filed an affidavit before the learned MM in the criminal complaint, alleging that the impugned holographic Will dated 07.11.1996 was fabricated, was also not examined during the course of the trial in the probate matter to substantiate their case. It is pertinent to mention here that the probate case No. 57/13/97 was instituted on 10.10.1997 and upon framing of the issues, eventually the impugned order was passed on 09.04.2014. It is evident that such piece(s) of evidence, vital or not, were very much known and available to the applicants/appellants, and that being the case, none of the ingredients of Order XLI Rule 27 of the CPC are satisfied in the instant matter. Further, this Court finds no compelling legal necessity for production of such additional evidence since the evidence recorded during the trial would be required to be tested and re-appreciated in the instant appeal on the touchstone of relevant provisions of the Indian Succession Act, 1925[4] as well as the Indian Evidence Act, 18725.
18. Insofar as the decision in Ibrahim Uddin (supra) is concerned, it rather goes against the case espoused on behalf of the applicants/appellants. The factual narrative of the cited decision would show that it was a case where the suit was one for declaration of title under Section 34 of the Specific Relief Act,1963[6] inter alia seeking presumption of conclusiveness of a document which was an old document and under Section 90 of the IEA, it was in the nature of public document. It is in the said context when additional evidence was sought to be produced at the appellate stage thereby seeking to place on record an alleged Will in favour of the plaintiff, that it was held that the Appellate Court should not travel outside the record of the lower Court and the Appellate Court may permit additional evidence only and only if the conditions laid down in this rule are found to exist. It was observed as under: - “Order 41 Rule 27 CPC
36. The general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. The appellate court may permit additional evidence only and only if the conditions laid down in this Rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, the provision does not apply, when on the basis of the evidence on record, the appellate court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the Rule itself. (Vide K. Venkataramiah v.
37. The appellate court should not ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Similarly, where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. (Vide Haji Mohammed Ishaq v. Mohd. Iqbal and Mohd. Ali and Co. )
38. Under Order 41 Rule 27 CPC, the appellate court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the appellate court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate court is empowered to admit additional evidence. (Vide Lala Pancham.)
39. It is not the business of the appellate court to supplement the evidence adduced by one party or the other in the lower court. Hence, in the absence of satisfactory reasons for the nonproduction of the evidence in the trial court, additional evidence should not be admitted in appeal as a party guilty of remissness in the lower court is not entitled to the indulgence of being allowed to give further evidence under this Rule. So a party who had ample opportunity to produce certain evidence in the lower court but failed to do so or elected not to do so, cannot have it admitted in appeal. (Vide State of U.P. v. Manbodhan Lal Srivastava and S. Rajagopal v. C.M. Armugam.)
40. The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a “substantial cause” within the meaning of this Rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal.
41. The words “for any other substantial cause” must be read with the word “requires” in the beginning of the sentence, so that it is only where, for any other substantial cause, the appellate court requires additional evidence, that this Rule will apply e.g. when evidence has been taken by the lower court so imperfectly that the appellate court cannot pass a satisfactory judgment.
42. Whenever the appellate court admits additional evidence it should record its reasons for doing so (sub-rule (2)). It is a salutary provision which operates as a check against a too easy reception of evidence at a late stage of litigation and the statement of reasons may inspire confidence and disarm objection. Another reason of this requirement is that, where a further appeal lies from the decision, the record of reasons will be useful and necessary for the court of further appeal to see, if the discretion under this Rule has been properly exercised by the court below. The omission to record the reasons must, therefore, be treated as a serious defect. But this provision is only directory and not mandatory, if the reception of such evidence can be justified under the Rule.
43. The reasons need not be recorded in a separate order provided they are embodied in the judgment of the appellate court. A mere reference to the peculiar circumstances of the case, or mere statement that the evidence is necessary to pronounce judgment, or that the additional evidence is required to be admitted in the interests of justice, or that there is no reason to reject the prayer for the admission of the additional evidence, is not enough compliance with the requirement as to recording of reasons.
44. It is a settled legal proposition that not only administrative order, but also judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the court to record reasons while disposing of the case. The hallmark of order and exercise of judicial power by a judicial forum is for the forum to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration of the justice delivery system, to make it known that there had been proper and due application of mind to the issue before the court and also as an essential requisite of the principles of natural justice. The reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity. The absence of reasons renders an order indefensible/unsustainable, particularly when the order is subject to further challenge before a higher forum. Recording of reasons is the principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision-making. The person who is adversely affected must know why his application has been rejected. (Vide State of Orissa v. Dhaniram Luhar, State of Uttaranchal v. Sunil Kumar Singh Negi, Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity and Sant Lal Gupta v. Modern Coop. Group Housing Society Ltd.) ***
47. Where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed.
48. To sum up on the issue, it may be held that an application for taking additional evidence on record at a belated stage cannot be filed as a matter of right. The court can consider such an application with circumspection, provided it is covered under either of the prerequisite conditions incorporated in the statutory provisions itself. The discretion is to be exercised by the court judicially taking into consideration the relevance of the document in respect of the issues involved in the case and the circumstances under which such an evidence could not be led in the court below and as to whether the applicant had prosecuted his case before the court below diligently and as to whether such evidence is required to pronounce the judgment by the appellate court. In case the court comes to the conclusion that the application filed comes within the four corners of the statutory provisions itself, the evidence may be taken on record, however, the court must record reasons as on what basis such an application has been allowed. However, the application should not be moved at a belated stage.”
19. Further, in the instant matter, the pleas which are being canvassed by the applicants/appellants at this appellate stage are not even found in the pleadings and it goes without saying that even the documents in the criminal complaint were available with the applicants/appellants and yet the same were not brought in evidence. It is in the said context that it would be relevant to refer to the following observations made in the case of Ibrahim Uddin (supra):
20. Therefore, unhesitatingly this Court finds that the present application has no legal foundation to be considered or to be allowed under Order XLI Rule 27 of the CPC. That brings us to CM APPL. 6107/2019,and at the cost of repetition, it is stated that the accused Suresh Kumar (PW-1),an eyewitness to the holographic Will dated 07.11.1996 and accused Anju Kapoor/respondent No.1 stood discharged in FIR No. 668/99 of PS New Friends Colony as per order dated 08.11.2017 passed by the then learned ACMM. Indeed, there was inaction on the part of the Investigating Officer who failed to seize the original Will in question by adopting appropriate legal measures but the said order on discharge is assailed in CM APPL.6107/2019and to my mind, it would not be appropriate to even consider this application when a final order is yet to be passed on the same. In any case, it is well ordained in law that a judgment in a probate matter is a judgment in rem which would be binding on the Criminal Court and it is never vice-versa.
21. In view of the foregoing discussion, I find that the aforesaid applications are bereft of any merits and the same are dismissed without prejudice but with costs of Rs. 25,000/- upon the applicants/appellants for wasting the precious time of this Court, which costs be deposited with Delhi High Court Legal Services Authority within thirty days from today.
22. It is clarified that nothing contained in these orders shall tantamount to an expression of opinion on the merits of the appeal case. Since arguments have not been advanced on merits of the appeal, the parties now should be afforded an opportunity to make submissions on the merits in the present appeal.
23. However, since the roster has changed and the present appeal arising out of the probate matters are now assigned to a different Bench, in order to be fair to the parties and to avoid any prejudice, it would be expedient that the present matter is assigned by Hon’ble the Acting Chief Justice, High Court of Delhi to the competent Bench dealing with such matters. The parties shall appear before Hon’ble the Acting Chief Justice, High Court of Delhi for further directions on 12th February, 2024.
DHARMESH SHARMA, J. FEBRUARY 09, 2024