Full Text
HIGH COURT OF DELHI
Date of Decision: 10th November, 2016
ANITA BHARGAVA..... Appellant
Through Mr P.K. Srivastava and Mr S.P.
Dao, Advs.
Through Mr Pradeep Kumar Kar, Adv. for R2&3
JUDGMENT
1. The challenge in this appeal is to the impugned judgment dated 28.02.2013 passed by learned Additional District Judge, Saket Courts, New Delhi vide which the petition under Section 276 of the Indian Succession Act filed by the appellant herein for grant of probate of Will dated 25.03.2003 of the Testator was dismissed.
2. The factual matrix of the case leading to filing of the present appeal broadly stated is as follows.
3. The deceased Testator Smt Sushila Rani Khosla widow of late Sh. Bhagwant Rai Khosla died on 04.03.2010. Husband of Smt. Sushila Rani Khosla already pre-deceased her in the year 1950. Smt Sushila Rani Khosla died leaving behind 3 legal heirs i.e. petitioner (appellant) herein and the respondent nos.[2] and
3. The respondent no.3 – Ashit Khosla S/o Smt. Sushila Rani Khosla died on 26.12.09 leaving behind his widow and daughter namely Shobha Khosla and Ms. Gitika Godara. Vide Will dated 25.03.2003 the deceased has bequeathed her entire movable and immovable properties in favour of petitioner as well as 2016:DHC:7441 respondents as such the petition was filed seeking probate of the Will. Notice to general public was issued through newspaper. No objections were filed on behalf of the respondent no.2 and legal heir of respondent no.3. Besides that, separate statement of Smt. Shobha Khosla W/o Sh. Ashit Khosla was also recorded. Affidavit of Vinit Kholsa and Gitika Khosla giving no objection to the grant of probate of Will were also filed. The petitioner/appellant led evidence by way of affidavit and filed documents viz. original Will dated 25.03.2003 of late Smt. Sushila Rani Khosla, her death certificate, death certificate of Ashit Khosla and share certificates. Besides that she also examined Shri Krishan Kumar, LDC from the office of Sub-Registrar who proved the original Will Ex.PW2/1 executed by Smt. Sushila Rani Khosla as per Reg. No.12023, Additional Book No.3, Vol. No.5845 on page 128 – 132. However, the petition was dismissed on the ground that as per the provisions of Indian Succession Act, 1945 and the Indian Evidence Act, in order to prove the Will at least one of the attesting witnesses must be examined in order to prove due execution of the Will. However, in the instant case, the appellant did not examine any of the attesting witnesses. That being so, the petitioner was not entitled for grant of probate in respect of the Will dated 25.03.2003.
4. Thereafter, an application under Section 114 of the Civil Procedure Code seeking review of the judgment was filed on the ground that immediately after the pronouncement of the judgment, the petitioner / appellant could find the attesting witnesses and also enclosed the statement of the attesting witnesses, therefore, an opportunity was sought to examine the attesting witnesses. However, this application did not find favour with the learned Additional District Judge, who vide order dated 07.07.2014 dismissed the application on the ground that no ground for review of the order was made out.
5. Thereafter, the present appeal was filed. During pendency of appeal, an application under Order 41 Rule 27 CPC has been filed seeking an opportunity to lead additional evidence by examining the attesting witnesses to prove execution of the Will. It is stated that there was no fault or negligence on the part of the appellant since the attesting witnesses despite efforts were not traceable and now they have been traced, their affiaviits have also been filed as such in case opportunity is not granted to lead additional evidence that will cause grave and irreparable damage to the appellant.
6. Learned counsel for the respondents submits that he has no objection to the allowing of the application inasmuch as when the probate petition was filed these respondents had given their ‘no objection’ to the grant of probate of the Will executed by late Smt. Sushila Rani Khosla.
7. It goes without saying that execution of a Will is required to be proved in terms of Section 68 of the Evidence Act read with Section 63 of the Indian Succession Act. Section 68 of the Evidence Act reads as under:
It is evident that in cases where the document sought to be proved is required by law to be attested, the same cannot let be in evidence unless at least one of the attesting witnesses has been called for the purpose of proving the attestation, if any such attesting witness is alive and capable of giving evidence and is subject to the process of the Court. Section 63 of the Indian Succession Act deals with execution of unprivileged Wills and, inter alia, provides that every Testator except those mentioned in the said provision shall execute his Will according to the rules stipulated therein. It reads:
10. A bare reading of this Rule goes to show that under normal circumstances at the appellate stage, the parties to the appeal are not entitled to adduce additional evidence, however sub-clause (aa) has been inserted by the Act 104 of 1976 which came into effect with effect from 01.02.1977 which permits parties to lead additional evidence if party seeking to produce additional evidence establishes that notwithstanding the exercise of due diligence, such evidence could not not be produced by him at the time when the decree /judgment was passed.
11. It is the case of the appellant that despite her best efforts, the attesting witnesses were not tracable during the pendency of the probate petition. However, afer the judgment was pronounced, the attesting witnesses were traced and immediately thereafter an application for review of the judgment was filed seeking an opportunity to lead additional evidence which, hwoever, was not allowed. Since there is no contest to this plea raised by the appellant and in fact there is no objection on behalf of the respondents to lead additional evidence, in the interest of justice, the application under Order 41 Rule 27 CPC is allowed granting opportunity to the appellant to lead additional evidence.
12. Resultantly, the impugned judgment dated 28.02.2013 is set aside. Learned Additional District Judge is directed to afford opportunity to the appellant to lead additional evidence and decide the matter afresh. In order to avoid any further delay, the parties are directed to appear before the concerned Additional District Judge for leading additional evidence on 28.11.2016 where the appellant will be granted two opportunities to lead her evidence.
13. The appeal as well as the application is disposed of in the aforesaid terms.
JUDGE NOVEMBER 10, 2016