Dinesh Aggarwal & Ors. v. State & Ors.

1. This appeal has been filed by the appellants challenging the order of the learned Single Judge dated September 04, 2018 passed 2019:DHC:1268-DB in Test. Case No. 95/2014 whereby the learned Single Judge has dismissed a petition filed under Section 276 of the Indian Succession Act, 1925 in respect of Will dated February 19, 2009.

2. The appellants herein are the brothers of the deceased Late Bishan Chand Aggarwal and claimed to be the executors of the said Will. It is their case that as per the Will, the deceased has bequeathed 40% of his share to one of his brothers Dinesh Aggarwal and 15% each to his other brothers Mukesh Kumar Aggarwal, Rakesh Kumar Aggarwal, Umesh Aggarwal and Amit Aggarwal in the property bearing No.G-92, Preet Nagar Cooperative Housing Building Society, Colony knows as Preet Vihar, Delhi-92. The Will is stated to have been registered on February 19, 2009 and is stated to have been witnessed by Mahesh Chand Jain and Chandra Prakash Srivastava.

3. Respondent No.1 is the State, respondents No.2 to 6 are the wife, two sons and two daughters of the deceased, who have filed objections to the grant of probate. The learned Single Judge framed the following issues:-

(i) Whether the Will propounded by the petitioner dated

(ii) Whether the Will has not been attested by two witnesses as mandatorily required in law? If so, whether the alleged Will can be acted upon?

(iii) Whether late Shri Bishan Chand Aggarwal as not competent and empowered to execute the Will, as alleged in the objection petition? OPR.

(iv) Relief

4. The record keeper from the Sub Registrar’s Office appeared as PW-2 and Mahesh Chand-the attesting witness appeared as PW- 2(A) and appellant No.1 appeared as PW-1 whereas Deepak Aggarwal appeared as RW-1. The Death certificate was exhibited as Ex. PW-1/1 and certified copy of Will dated February 19, 2009 was exhibited as Ex.PW-1/2.

5. The first and foremost issue, which was decided by the learned Single Judge is the effect of non-production of the original Will. The learned Judge came to the conclusion that from a perusal of the affidavit in evidence and the cross-examination of the witnesses, it is seen that there is no mention whatsoever as to the circumstances under which the original is stated to have been lost or destroyed. She relied upon the judgment of the Supreme Court in the case of Benga Behera and Ors. v Braja Kishore Nanda and Ors. AIR 2007 SC 1975 to hold that it has to be established on record that the original Will could not be produced, as it was lost, misplaced or destroyed beyond reasonable doubt as the certified copy of a Will would constitute secondary evidence under Sections 63 and 65 of the Indian Evidence Act, 1872. Unless it is proved that the primary evidence is destroyed or lost, no secondary evidence can be accepted by the Court.

6. The learned Single Judge has held that the petitioner must fail on this sole ground. The learned Single Judge also proceeds to examine the merits of the matter as well. It is her conclusion that the Will has not been proved in accordance with law as the only attesting witness Mahesh Chand does not exhibit the Will. According to her, he neither identifies the signatures of the deceased on the Will, nor does he say that the second witness signed in his presence. According to her, he also does not state that the Will was read over to the deceased and was understood by him. According to her, the witness does not disclose, in what manner, he knew the testator and what was his mental condition to execute a Will. She also rejects the Will as the deceased did not mention the existence of his wife and his children. According to her, this is an extremely suspicious circumstance in the context of a Will. She also notes the litigation between the parties. In conclusion, she held that the loss of the original Will cannot be deduced by implication, by a Court. Loss or destruction of an original document, especially a Will has to be pleaded and proved in accordance with law. Even the certified copy of the Will could not be proved in accordance with law as the attesting witness who appeared did not identify the signature of the testator or the document itself. According to her, the Will is surrounded by suspicious circumstances.

7. The learned Counsel for the appellants concede to the position that the original Will was not produced. He concedes to the position that the appellants could not state or prove that the original Will has been lost or destroyed. If that be so, the fact remains that the original Will was not produced by the appellants before the learned Single Judge nor did they make out a case that the original Will was not available, having been lost or destroyed. In the absence of original Will, certified copy of the Will could not be relied upon. That apart, it is a finding of fact by the learned Single Judge that the attesting witness could not even prove the certified copy of the Will, as he could not identify the signatures of the testator. Even otherwise, it is not the case of the appellant that the finding is perverse.

8. We may note here that the Supreme Court has recently dealt with the effect of Sections 63 and 65 of the Evidence Act in the case of Rakesh Mohindra vs Anita Beri & Ors. (2016) 16 SCC 483, as follows:

17. The pre-conditions for leading secondary evidence are that such original documents could not be produced by the party relied upon such documents in spite of best efforts, unable to produce the same which is beyond their control. The party sought to produce secondary evidence must establish for the non-production of primary evidence. Unless, it is established that the original documents is lost or destroyed or is being deliberately withheld by the party in respect of that document sought to be used, secondary evidence in respect of that document cannot accepted.

22. It is well settled that if a party wishes to lead secondary evidence, the Court is obliged to examine the probative value of the document produced in the Court or their contents and decide the question of admissibility of a document in secondary evidence. At the same time, the party has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. It is equally well settled that neither mere admission of a document in evidence amounts to its proof nor mere making of an exhibit of a document dispense with its proof, which is otherwise required to be done in accordance with law. (emphasis supplied)

9. From a reading of the above, it becomes clear that for the appellant to have lead and relied upon secondary evidence (here, a certified copy of the original will), they should have clearly laid down and established the circumstances under which the original is said to have been lost. Without having done so, the right to lead secondary evidence thereon, would not arise.