* HIGH COURT OF DELHI : NEW DELHI
+ I.A. No. 7377/2007 and I.A. No. 15312/2008
in Test Case No.17/2001
% Reserved on : 27th April, 2009
Pronounced on : 6th July, 2009
Yuv Raj Narain Gorwaney ...Petitioner
Through : Mr. Pramod Ahuja, Adv.
Versus
State ....Respondent
Through : Ms. Akanksha Sharma with Ms.
Ruchi Sindhwani, Advs. for R-1/State
Mr. Rajesh Malhotra, Adv. for R-4
Mr. J.N. Aggarwal with Mr. J.B.
Prakash, Advs. for beneficiary No.1
Maharaj Jagat Singh Medical Society
Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH
1. Whether the Reporters of local papers may
be allowed to see the judgment? No
2. To be referred to Reporter or not? No
3. Whether the judgment should be reported No
in the Digest?
MANMOHAN SINGH, J.
1. The present applications have been filed by the respondent No.4. I.A No. 7377/2007 has been filed for recalling of witnesses, namely Sh. R.D. Saxena and Smt. J.K. Grewal for the purpose of further cross examination by respondent No.4 and I.A No. 15312/2008 has been filed praying that the complete record of deceased's bank accounts i.e. her accounts in State Bank of India and Standard Chartered Bank be Test Case No.17/2001 Page 1 of 7 summoned.
2. The brief facts of the case are that the petitioner has filed the present petition on 25th March, 2001 for grant of probate in respect of Will dated 13th February, 2001 of deceased Smt. Avinash Pandit who expired issueless on 17th March, 2001. The respondent No.4 is one of the legal heirs of the deceased (son of the brother of Pandit Gian Chand who is the husband of Smt. Avinash Pandit). At the time of filing of the petition, the respondent No.4 was not impleaded as a party and he came to know about the pendency of the present petition some time in the year 2005. On filing of the application under Order I Rule 10 of the Code of Civil Procedure being I.A. No.78/2005 the respondent No.4 was made party to the present petition by order dated 18th November, 2005 by which this court directed the respondent No.4 to participate in the cross examination of Sh. R.D. Saxena and Smt. J.K. Grewal. Smt. Grewal had already been cross examined in part before 18 th November, 2005 by the objector No.3. The contention of respondent No.4 is that as per the above-mentioned order, the two attesting witnesses of the alleged Will were examined on commission and a Local Commissioner was appointed to record their evidence and their affidavits were already filed before the respondent No.4 was impleaded as party.
3. The respondent No.4 submitted that objection to the grant of probate was also filed in terms of order dated 18 th November, 2005 passed by this court. The objection is that the executor/deceased Smt. Avinash Pandit was not in a sound state of mind at the time of execution of the alleged Will and in fact the Will is a forged and fabricated Test Case No.17/2001 Page 2 of 7 document.
4. In the rejoinder of his objection, respondent No.4 also alleged that on account of a hip fracture, the deceased Smt. Avinash Pandit was kept on painkillers and at the relevant time at which the alleged Will was executed, the deceased/ executor was not of sound mind and she was also under sedatives and therefore she might not be aware of what she was doing at the time of the execution of the Will.
5. Issues in the above said matter were framed on 13 th February, 2007. The burden of proof of issue No.3 & 4 is upon the respondent No.4. The respondent No.4 submits that at the time of cross examination of both the attesting witnesses the pleadings pertaining to respondent No.4 were not complete as the reply to the objections as well as rejoinder were filed subsequent to the cross examination. Some of the facts as mentioned above have, therefore, come to the knowledge of the respondent No.4 subsequent to the filing of the reply by the petitioner and cross examination of the witnesses. In view thereof the respondent No.4 submits that further cross-examination which goes to the root of the matter relating to valid execution and state of mental health of testator is required to be conducted. Therefore, a prayer is made for recalling the two above mentioned attesting witnesses for further cross examination. It is submitted that otherwise the case of the respondent No.4 would be prejudiced.
6. The non-applicant/petitioner, however, contends that the two attesting witnesses have been cross-examined at length. Further, both the witnesses are above the age of 70 years and will be harassed by such Test Case No.17/2001 Page 3 of 7 re-calling of witnesses already examined. It is averred that the respondent no. 4 had to lead evidence on the basis of his objections and not on the petitioner's reply. Also, at the stage when cross-examination is over, allowing the respondent no. 4's application would only delay the process of the court.
7. With regard to the second application, it is contended by respondent no. 4 that the deceased Smt. Avinash Pandit during her lifetime was maintaining two bank accounts; one SB A/c No. 579 with State Bank of India, Friends Colony, New Delhi and another SB A/c No. 27069155 with Standard Chartered Bank (erstwhile Grindlays Bank), New Friends Colony, New Delhi. Since respondent no. 4's objection is that the Will is a forged and fabricated document and that it does not bear the signature of the deceased, he intends to file the evidence of an expert witness who requires the original (undisputed) signature of the deceased for comparison with the disputed signature on the alleged Will. The respondent submits that in order to avoid any possibility of the relevant bank records being destroyed or tampered with, the same may be preserved in court. Otherwise it would cause serious prejudice to the case of the respondent No.4.
8. The application is opposed by the petitioner on various grounds. Firstly, the respondent No.4 has already conducted cross- examination of the attesting witnesses of the Will and this application ought to have been filed earlier as this objection was available to the respondent No.4 at that time. Secondly, the bank cannot be asked to part with official records and therefore the application is not Test Case No.17/2001 Page 4 of 7 maintainable.
9. It is not in dispute that the burden of proving issue Nos.2 and 3 is upon respondent no.4 for which respondent no. 4 wishes to examine the expert witness. It is also a matter of fact that respondent No.4 while filing objection to the probate has specifically taken the plea that the Will is a forged and fabricated document and the same does not bear the signature of the deceased.
10. I have heard the learned counsel for the parties and have also gone through the relevant records of the matter. Some relevant details are necessary to decide the present application. The date of Will in question is 13th February, 2001. The present petition for probate was filed on 25th March, 2001. The respondent No.4/applicant was impleaded as respondent No.4 by order dated 18 th November, 2005 and 10 days time was given to respondent No.4/applicant to file the objections. Objections were filed on 30 th November, 2005. It appears from the objections that the respondent No.4/applicant has taken various objections including the objection of forged and fabricated Will as well as with regard to the mental health of late Smt. Avinash Pandit. Issues were framed on 13th February, 2007 in the presence of learned counsel for respondent No.4. The respondent No.4 also cross examined two witnesses i.e. Mr. R.D. Saxena and Mrs. Jaswant Grewal.
11. The power of the court to recall a witness is a discretionary one and must be exercised with due caution and only in exceptional cases. It seems that the respondent no. 4 had knowledge of the facts regarding the medical unfitness of the deceased even at the time of Test Case No.17/2001 Page 5 of 7 prior cross-examination as the same has been stated in his objections. If a party has effectively participated in cross-examination of witnesses, recall of those witnesses is not possible as such recall would only result in undue delay of the process of the court. Keeping the above-stated deliberations in mind, I am of the considered opinion that the two attesting witnesses, namely Sh. R.D. Saxena and Smt. J.K. Grewal cannot be recalled for further cross-examination by the respondent no. 4.
12. As regards the second application, I am of the considered view that summoning of the original (undisputed) signature of the deceased for comparison with the disputed signature on the alleged Will is necessary for the purpose of determination of the objection filed by the respondent No.4. No prejudice would be caused to the petitioner if the said record is summoned before this court as the same can be returned back to the bank after obtaining the original (undisputed) signature from the said bank account of the deceased and by maintaining the copies thereof along with the present file. Under these circumstances, the present application is allowed and the Manager, State Bank of India, Friends Colony, New Delhi is directed to produce the records of SB A/C No. 579 maintained in the name of Smt. Avinash Pandit, more particularly (i) the statement of account from 1st January, 2000 till date (ii) cheques encashed from the account of Smt. Avinash Pandit for the period 01.04.2000 to 30.04.2001 (iii) the original account opening form with specimen signature card of Smt. Avinash Pandit. Similarly the Manager, Standard Chartered Bank, New Friends Colony, New Delhi is directed to produce the record of SB A/c No. 27069155 Test Case No.17/2001 Page 6 of 7 maintained in the name of Smt. Avinash Pandit, more particularly (i) the statement of account from 1st January, 2000 till date (ii) cheques encashed from the account of Smt. Avinash Pandit for the period 01.04.2000 to 30.04.2001 (iii) the original account opening form with specimen signature card of Smt. Avinash Pandit.
Both applications are disposed of.
Test Case No.17/2001 List the matter before the Court on 5th October, 2009.
MANMOHAN SINGH, J JULY 06, 2008 SD Test Case No.17/2001 Page 7 of 7