Virender Singh vs Shyam Devi
2010 Latest Caselaw 4133 Del

*IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            Date of Judgment : 07th September, 2010

+              R.S.A.No.128/2010 & C.M.Appl.11693/2010

VIRENDER SINGH                                     ...........Appellant
            Through:              Mr.Sanjeev Soni, Advocate.

                     Versus

SHYAM DEVI                                           ..........Respondent
                     Through:     Nemo.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?                     Yes

     3. Whether the judgment should be reported in the Digest?
                                                                   Yes

INDERMEET KAUR, J.(Oral)

1.     This second appeal has impugned the judgment and decree

dated 3.3.2010 which had endorsed the finding of the trial judge

dated 11.8.2009 decreeing the suit of the plaintiff.

2.     The plaintiff had filed a suit for possession of property

bearing no.102-A, Mohalla Kesari, Circular Road, Shahdara, Delhi-

110032 (hereinafter referred to as „the suit property‟). She

claimed herself to be the owner of the suit property by virtue of a

will   dated      3.9.1986    executed    by   her   deceased     husband

Raghuvansh Lal.       It was on the basis of this will that she had

claimed ownership to the suit property. Consequently, the present

suit was filed.

3.     The trial judge had framed five issues. Issue no.1 was the

crucial issue which inter alia reads as follows:

       "Whether the plaintiff is entitled for the relief of possession as
       prayed for? OPP"

RSA No.128/2010                                           Page 1 of 4
 4.      Onus to discharge this issue was on the plaintiff. The trial

court     had     examined   the   will   Ex.PW-1/1   dated     3.9.1986

propounded by the plaintiff. The defendant who is the brother of

the deceased had also set up a counter will i.e. will dated 3.7.1984

Ex.DW1/A.         This was also examined by the trial judge. The

contention of the appellant before this court is that the will Ex.PW-

1/1 has been recorded in suspicious circumstances and this is

evident from a reading of the will which has contradictory clauses;

the last paragraph of Ex.PW-1/1 had made a reference to his wife

as having no right in the property whereas in the first para of the

will he had bequeathed his property in favour of his wife were

inconsistent readings which were irreconcilable and had raised a

suspicion on this document. Contention of the learned counsel for

the appellant that these versions of the testator as aforenoted are

inconsistent and if such an inconsistency arises; under Section 88

of the Indian Succession Act, the last para of the two clauses shall

prevail and must be given effect to. For this proposition reliance

has been placed upon 2000 III AD SC 428 Balwant Kaur & Anr. vs.

Chanan Singh and Ors. The trial court has however relied upon

the first para of the will and this has raised a substantial question

of law.

5.      This contention was repelled by the Trial Judge. The

testimony of the attesting witness PW-1 had also been taken into

regard. The plaintiff was held to have established her title to the

suit property. Decree for possession was passed in her favour.

6.      The second contention of the learned counsel for the

appellant is that the provisions of Sections 59 and 60 of the

Evidence Act have not been conformed to. The testimony of the

RSA No.128/2010                                         Page 2 of 4
 plaintiff in his cross-examination is contrary to his version in his

examination in chief. In her cross-examination PW-2 (plaintiff) has

categorically stated that she does not know the contents of her

affidavit Ex.PW-2/A. This has thrown out her version in toto. This

again raises a substantial question of law.

7.    The substantial question of law have otherwise been

formulated on pages 5 to 7 of the memo of appeal.

8.    Arguments of the learned counsel for the appellant are

clearly devoid of any merit.    The document i.e. the will of the

testator Ex.PW-1/1 has been gone into in an indepth detail by the

trial judge as also by the first appellate court. The findings of the

trial judge have been discussed supra. The first appellate court

had dealt with these contentions in para 16 to para 24.             The

impugned judgment had noted that the appellant had taken no

objection in his written statement about the ambiguity/suspicious

circumstances in which the will had been executed. It was held

that if this was a defence of the defendant, he should have got a

specific issue framed in this regard. The suspicious circumstances

had otherwise been adequately dealt with by the trial court. The

purported will raised by the defendant/brother of the testator

dated 3.7.1984 had also been examined; the contrary defences set

up by the defendant that his brother had suffered a paralytic

attack in 1983 and as such the will executed in 1986 is sham was

balanced with the will purported to have been executed by the

testator in 1984 as set up by the defendant and it was held that

there was nothing on record to show that the mental condition of

the testator was not good at the time when he had executed his

last testament dated 3.9.1986 Ex.PW-1/1 in favour of his wife.

RSA No.128/2010                                       Page 3 of 4
 There was no ambiguity in the said document.

9.      The submission of the learned counsel for the appellant

which has been propounded before this court that the original will

had not been produced was also repelled. Certified copy of the

document had been proved on record. The will stands proved if an

attesting witness is produced; there is also a presumption under

Section 79 of the Evidence Act about the genuineness of a

certified copy of a document.

10.     It is a settled proposition of law that no one sentence of a

witness can be extracted and be read in exclusion to suit or non-

suit a party. Testimony of the witness has to be read as a whole.

Testimony of PW-2 (plaintiff) was held to be trustworthy, clear and

cogent, establishing her case in her favour which had led the

decree in her favour. Provisions of Sections 59 & 60 of the

Evidence Act do not come to the aid of the appellant in any

manner.

11.     No question of law much less any substantial question of law

has been raised in this second appeal.           Arguments addressed

before this court are all fact based submissions which have

already been gone into by the two fact finding courts below. This

is not a third fact finding court.    The will Ex.PW-1/1 had been

adequately proved. Attesting witness of the document had come

into the witness box as PW-1. There was no ambiguity in the said

document. This finding has been affirmed by the first appellate

court     corroborating     the   finding   of     the    trial        court.

There is no merit in this appeal.      Appeal as also the pending

application is dismissed.

                                            INDERMEET KAUR, J.

SEPTEMBER 07, 2010/rb