Yuv Raj Narain Gorwaney vs State
2009 Latest Caselaw 2482 Del

*          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

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

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

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

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

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

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