Bhim Singh vs Summon Singh
2010 Latest Caselaw 1508 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI


+                                RSA NO. 56/2010

                                     Date of Decision: 18th March, 2010

       BHIM SINGH                                        ..... Appellant
                                 Through:   Mr. Vijay Kumar Singh
                                            and Mr. Jitender Singh,
                                            Advocates.
                        versus

       SUMMON SINGH                                    ..... Respondent
                                 Through:   Mr. Rohit Kumar,
                                            Advocate.
       %
       CORAM:
       HON'BLE MS. JUSTICE ARUNA SURESH

     (1)         Whether reporters of local paper may be
                 allowed to see the judgment?
     (2)         To be referred to the reporter or not?
     (3)         Whether the judgment should be reported
                 in the Digest ?

                            JUDGMENT

ARUNA SURESH, J. (Oral)

CAVEAT NO.83/2010

1. Mr. Rohit Kumar, Caveator is present. He accepts

notice on behalf of the Respondent.

2. Hence, application stands disposed of.

CM 5002/2010 (delay)

3. There is delay of about a month in filing the appeal.

4. For reasons stated in the application, it is allowed and

delay in filing the appeal is hereby condoned.

CM APPL.5003/2010 (exemption)

5. Exemption allowed subject to all just exceptions.

6. Application stands disposed of.

RSA 56/2010

7. Appellant filed a suit for possession against the

respondent in respect of H. No.38, Village Jharia Maria, New Delhi.

Case of the appellant as set out in the plaint was that he was nephew

of deceased Bengali, who had two wives, namely, Smt. Rumali and

Smt. Simiriti. He had no issue from either of his wives. He died

issueless on 16th February, 1987. Bengali had brought up appellant

since the age of 10 years. Bengali executed a Will in his favour

bequeathing all his properties including suit property to him. Claim

of the appellant was disputed by the respondent on the grounds that

he was given in adoption to Bengali when he was about 2½ months

old and after adoption, he became member of the Joint Hindu Family

and acquired a right in all the properties of Bengali. After the death

of Bengali, properties devolved upon him and two widows of

Bengali in equal shares. Respondent also disputed genuineness of

the Will allegedly executed by deceased Bengali in favour of the

appellant.

8. Trial Court vide its judgment and decree dated 24th

January, 2006 dismissed the suit of the appellant. Appellant

preferred a Regular Civil Appeal being RCA No.32/09 challenging

the judgment and decree of the Trial Court. Appellate Court

agreeing with findings of the Trial Court found no merits in the

appeal and dismissed the same vide its impugned judgment and

decree dated 9th November, 2009.

9. Being aggrieved by the said judgment and decree of

the First Appellate Court, appellant has filed this appeal under

Section 100 CPC raising following substantial question of law:-

"A. Whether the Ld.Appellate Court as well as the trial court failed to consider the "Will" duly registered and attested by two witness under the circumstance when "Will" was proved by the plaintiff/appellant on record having produced the available evidence of clerk of the Sub-Registrar Office at Asaf Ali Road, New Delhi who verified the document i.e. "Will" in view of the death of both the attesting witnesses of the "Will" before filing of the instant case before the court."

10. Learned counsel for the appellant has submitted that

neither Trial Court nor Appellate Court appreciated evidence of the

appellant produced on record to prove the Will, which was duly

registered and attested by two witnesses. He has submitted that the

Will stood proved by PW4, a Clerk from the Sub-Registrar Office at

Asaf Ali Road, New Delhi, who verified the registration of the Will

and his statement became relevant in the absence of attesting

witnesses to the Will, who had died before filing of the suit, as

registration of the Will is a strong factor to prove the genuineness of

the Will.

11. Submissions, as made by counsel for the appellant, are

clearly a challenge to the finding on facts by the courts below. Even

substantial question as suggested involves appreciation of oral

evidence adduced on record by the parties. It is not the case of the

appellant that findings of the Trial Court as well as of the Appellate

Court are perverse findings on facts.

12. Be that as it may, admittedly, appellant did not

examine any of the two attesting witnesses to the Will because

according to him they had expired and could not have been produced

by him to prove attestation of the Will. Trial Court as well as the

Appellate Court examined oral evidence of the parties vis-à-vis the

impugned Will. It is pertinent that appellant himself never stepped

in the witness box to support his case. PW-1 who happened to be

son of the appellant had deposed that his father, the appellant was

never adopted by Bengali. Son of the appellant is not an attesting

witness to the Will. PW-2, UDC from MCD could only prove the

mutation of the property in the name of the appellant in 1987 when

he had moved an application before MCD for mutation of the

property in his name. His statement was rightly not accepted by the

Court for the simple reason that UDC from MCD, being official

witness, could not prove the genuineness of the Will, allegedly

executed by Bengali during his life time in favour of the appellant.

Similarly, Trial Court rightly did not give any importance to the

testimonies of Manohar Lal, a witness summoned from DESU and

PW-4 Sh. Bhagwan Sahay, a witness summoned from Sub-Registrar

office, as none of these two witnesses could depose anything on

execution of the Will by deceased Bengali during his life time. Trial

Court also took into consideration the fact that Sh. Bhagwan Sahay

from Sub-Registrar office only proved registration of the Will and its

certified copy Ex.PW4/1.

13. Appellate Court did record other suspicious

circumstances which shrouded genuineness of the Will. Appellate

Court observed that Attorney of the appellant who proved on record

the execution of the Will was a minor on the date of execution of the

Will and his statement was inconsistent about place of registration of

the Will, i.e. if it was at Bhadur Shah road or at Asaf Ali Road and

the presence of the witness was suspected. Admittedly, appellant

never filed any petition for probating the Will in question.

14. Under these circumstances when the Will was not

accepted by the courts below on appreciation of oral evidence

adduced on record, I am of the view that no substantial question of

law arises in this appeal.

15. Hence, appeal is dismissed being without any merits.

CM No.5001/2010 (for stay)

16. Since petition has been dismissed, this application has

become infructuous. It is accordingly disposed of.

ARUNA SURESH (JUDGE) MARCH 18, 2010 sb