Delhi High Court
Dr. Vijay Shankar Mishra vs The State & Ors. on 3 September, 2009
Author: V.B.Gupta
* HIGH COURT OF DELHI : NEW DELHI
FAO. No.248/2008 & CM No.10537/2008
% Judgment reserved on: 28th August, 2009
Judgment delivered on: 3rd September, 2009
Dr. Vijay Shankar Mishra
S/o. Late Dr. Ram Prasad Mishra
R/o. Flat No.14, Sahyog Apartments
Mayur Vihar, Phase-I, Pocket-IV
Delhi-110091 ....Appellant
Through: Mr. Anil Amrit, Adv.
Versus
1. The State
Govt. of NCT of Delhi
Delhi.
2. Smt. Surya Kumar Tripathi
W/o. Shri Raghvendra Tripathi
R/o. 1A, Navsheel DHam
Bithoor Road, Kalyanpur
Kanpur- 208017, U.P.
3. Dr. Pawan Kumar Mishra
S/o. Late Dr. Ram Prasad Mishra
R/o. H.No.7, Gayatri Society
Hadgur Road, Anand
Gujrat.
4. Shri Uday Shankar Mishra
S/o. Late Shri Ram Prasad Mishra
R/o. H-41, Vikar Puri
FAO No.248/2008 & CM No.10537/2008 Page 1 of 5
New Delhi. ....Respondents.
Through: None.
Coram:
HON'BLE MR. JUSTICE V.B. GUPTA
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? No
3. Whether the judgment should be reported
in the Digest? No
V.B.Gupta, J.
Appellant has filed this appeal against judgment
dated 16th April, 2008 of Additional District Judge,
Delhi, vide which appellant‟s petition, under Section
275 and 276 of the Indian Succession Act, 1925 for
grant of Probate of Will dated 30th December, 2004,
executed by his father, Late Ram Prasad Mishra, was
dismissed.
2. Along with this appeal, appellant has filed an
application for additional evidence, in which it is stated
that, despite due diligence by appellant, additional
evidence which is sought to be adduced in the form of
annexed affidavits of attesting witnesses, could not be
produced and he may be allowed to lead additional
evidence by placing on record, affidavits of attesting
witnesses.
3. Trial court in the impugned judgment observed;
"No doubt the will can be proved by
examining one attesting witness of the will
also if he is in a position to prove the
signature of the second attesting witness of
the will also. In this case the original will
was not shown to the witness and he has
not identified even his own signature and
the signature of the testator on the original
will. He simply deposed that the will was
signed by the testator in his presence but
he has not identified that signature on that
will which was executed in his presence.
The affidavit of this witness is totally silent
about the thumb impression and the
signature of the second attesting witness of
the will. So it is not proved by the
statement of PW2 Ajit Jha that the will was
executed by the testator in the presence of
two attesting witnesses or that anybody
else except the testator and PW2 Ajit Jha
was present at the time of execution of the
will. Even the petitioner has not proved
and identified the signature of the second
attesting witness of the will. Even the
name of the second attesting witness of the
will is not given by any of the witness
examined by the petitioner. The signature
of the second attesting witness of the will
remained unproved. It is a mandatory
requirement of law that a valid will can be
executed if it is witnessed by two attesting
witnesses who had seen the testator
affixing his thumb mark or signature on the
will. The petitioner has totally failed to
prove that the will dated 30.12.2004,
Ex.PW1/2 was executed by the testator in
the presence of two attesting witnesses.
Merely putting an exhibit mark on a
document does not prove its valid execution
as per the provisions of law. The petitioner
has failed to prove the execution of the will
dated 30.12.2004, Ex.PW1/2 as per law."
4. Other legal heirs, have already filed their „No
Objection‟ to the grant of probate of Will in favour of
appellant. So, in the interest of justice, present appeal
is allowed and impugned judgment is set aside. The
case is remanded to the trial court and permission is
granted to appellant to place on record, affidavits of
attesting witnesses of registered Will and to lead
additional evidence to this effect, subject to payment of
costs of Rs.5,000/-.
5. Costs be deposited with Delhi High Court Legal
Services Committee within four weeks from today and
receipt of the same be filed in the trial court.
6. Parties are directed to appear before trial court
on 6th October, 2009.
7. Trial court record and copy of this order, be sent
to trial court.
3rd September, 2009 V.B.GUPTA, J.
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