Gulshan Kumar Chawla v. Vijay Kumar Chawla & Ors.

1. By the present petition, the petitioner challenges the order dated 20.03.2021 passed by the learned Trial Court dismissing three applications, whereby the petitioner sought summoning of three different witnesses in support of his defence.

TUSHAR RAO GEDELA, J. (ORAL)

2. With the consent of parties, the present petition is taken up for final disposal.

3. So far as the first summoning application is concerned, learned counsel submits that the witness namely, Sh. Darshan Lal Chadha was relevant to support his defence inasmuch as the stand taken by the CM(M) 719/2021 2 petitioner in the Trial Court was that the said Sh. Darshan Lal Chadha was a witness and present at the time when the Settlement Deed dated 07.09.1993 was executed and, therefore the necessity to examine the said Shr. Darshan Lal Chadha.

4. In respect of the second application, the petitioner sought to summon witness, namely Smt. Usha Chawla to support his contention that she was a witness to a declaration dated 18.05.1979 as also that the execution of the Settlement Deed dated 07.09.1993 was in her knowledge, thus, the learned counsel submits that her evidence was required to go through both the aforesaid documents, which were relevant for the purpose of his defence.

5. The petitioner also sought to summon an official from the Railway Clearing Accounts Office, Delhi along with the service record of late Sh. Tek Chand Chawla (late father of the parties), who had retired on 28.02.1983 in order to prove that at the time of construction of the property, late father did not have the sufficient funds to construct the property and that the petitioner had infused funds out of his own income. Learned counsel submits that to that extent, the examination or the scrutiny of the accounts of late father would be relevant to his defence.

6. Learned counsel also sought summoning of one Sh. O.P. Malhotra, who is stated to be one of the attesting witnesses to the Will, which is the subject matter of the probate petition. Learned counsel submits that the said Sh. O.P. Malhotra was already part of the list of witnesses filed by the respondent before the learned Trial Court, however, was not examined by the respondents. Learned counsel submits that examination of Sh. O.P. CM(M) 719/2021 3 Malhotra was relevant to show or contradict or prove inconsistency in the evidence as brought by the respondents and to contradict his stand.

7. On the other hand, learned counsel appearing for the respondents submits that the petitioner is seeking to examine these witnesses only to delay the adjudication of the matter and the witnesses as sought to be summoned by the petitioner, are otherwise irrelevant to the issue of proving or disproving the Will, which is the subject matter of the probate petition. So far as summoning the witness Sh. O.P. Malhotra is concerned, learned counsel for the respondents submits that the learned Trial Court has given appropriate directions, which have not been followed by the petitioner. In any case, he objects to the summoning of Sh. O.P. Malhotra on the ground that the role of Sh. O.P. Malhotra would be restricted only to proving or disproving the Will, which the respondents have already done by examining Ms. S.C. Chawla, who also was the attesting witness to the Will.

8. Mr. V.V. Singh, learned counsel for the respondents informs the Court that the witness Smt. Usha Chawla is no more and, therefore, to that extent, the Court need not pass any orders thereon.

9. At the outset, this Court need not detain itself on the witness, namely, Smt. Usha Chawla, as she is informed to have expired.

10. Insofar as, the witness Sh. Darshan Lal Chadha is concerned, the petitioner in para (h) of his preliminary submissions, has specifically referred to the Settlement Deed dated 07.09.1993 and also indicated the name of Sh. Darshan Lal Chadha as a witness to the said settlement. CM(M) 719/2021 4 Considering the role of Sh. Darshan Lal and the fact that he is specifically being named in filing the written statement, the learned Trial Court ought to have seen that the witness named in the said summoning application was relevant to prove a particular document, which may or may not have affected the credibility of the Will. However, an opportunity to establish the defence by way of examining witnesses cannot be taken away from the petitioner in this case.

11. Insofar as the summoning of the record as well as the witness from the Railway Clearing Accounts Office, Delhi is concerned, on a perusal of the written statement as filed on record, especially Para b, it appears that the petitioner has categorically averred that the late father did not have sufficient funds to construct the property and that the respondent was working as a Marine Engineer and was financially sound and earning a sum of Rs. 40,000/- per month, as on that date. Therefore, in order to establish the fact that the funds towards the construction of the subject property were infused also by the petitioner, the examination of Clerk from the aforesaid office was relevant.

12. In view of the fact that there is a specific averment in support thereof, the petitioner seeks to examine the witness and that too from the former employee of the late father, in order to show his financial capacity to construct or otherwise the property which is covered by the Will, it would be relevant to examine the witness from this department.

13. Insofar as the witness Sh. O.P. Malhotra is concerned, by way of the impugned order the learned Trial Court has permitted the petitioner to summon/ produce the said witness on his own risk as the address was not CM(M) 719/2021 5 available with the petitioner at that point of time. This Court does not see any reason why it should interfere in this order inasmuch as the burden is upon the petitioner to produce the said witness on its own or take steps in accordance with law to ensure his presence before the learned Trial Court.

14. Learned Trial Court is requested to summon the witnesses in accordance with law and examine them after giving opportunity to the learned counsel for the respondents to cross-examine them and then list the matter for final hearing.