Jai Bhagwan Rawat vs State & Ors
2010 Latest Caselaw 603 Del

                                                   UNREPORTABLE


*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                          FAO No.388/2009


                              Date of Decision: February 03, 2010


       JAI BHAGWAN RAWAT               ..... Appellant
                    Through Mr. C.S.Panda, Advocate with
                    Mr. R.K.Sharma & Mr. Sushil Kumar Singh,
                    Advocates

                     versus


       STATE & ORS                           ..... Respondents
                          Through None


       CORAM:
       HON'BLE MISS JUSTICE REKHA SHARMA

1.     Whether the reporters of local papers may be allowed to see the
       judgment? No
2.     To be referred to the reporter or not? No
3.     Whether the judgment should be reported in the 'Digest'? No

REKHA SHARMA, J. (ORAL)

This appeal has been preferred by the appellant against the

order of an Additional District Judge, dated May 25, 2009 dismissing a

probate petition filed by him on the ground that he has failed to prove

execution of the Will dated January 25, 1984 as the last Will and

testament of deceased Smt. Hukma Devi.

It is not disputed by the appellant that no attesting witness to

the Will was examined during the trial of the case. The only grievance

of learned counsel for the appellant against the impugned order is

that the learned trial Judge had not granted time to the appellant to

adduce secondary evidence, as the attesting witnesses to the Will

were not available.

A perusal of the impugned judgment goes to show that the

evidence of the appellant/plaintiff was closed on August 04, 2006.

The appellant moved an application on December 09, 2006 for

recalling of order dated August 04, 2006 which was dismissed on

March 30, 2007. Admittedly, the appellant/plaintiff preferred no

appeal, revision or a Civil Miscellaneous (Main) in this Court either

against the order dated August 04, 2006 closing his evidence or

against the order dated March 30, 2007 dismissing the application for

recalling of order dated August 04, 2006. It is only now after the trial

Court has finally decided the probate petition, that the appellant is

finding fault with the orders dated August 04, 2006 and

March 30, 2007. The time for doing so has long passed. It is too late

in the day to protest. It is well settled that one of the attesting

witnesses in terms of Section 68 of the Evidence Act is required to be

examined to prove the execution of the Will of which the probate is

sought. This having not been done, I find no merit in the appeal. The

same is dismissed.

REKHA SHARMA, J.

FEBRUARY 03, 2010 ka