Mira Hemrajani vs State
2012 Latest Caselaw 7003 Del

*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+     FAO 271/2012 & CM No. 12769/2012

%                                            Date of Decision: 06.12.2012

MIRA HEMRAJANI                                           ..... Appellant
                            Through: Mr Arvind Kumar Gupta along with
                                   Mr Sandeep Gupta & Mr Nitin Sharma,
                                   Advs.
                   versus

STATE                                                    ..... Respondent
                            Through: None.
CORAM:
HON'BLE MS. JUSTICE VEENA BIRBAL

VEENA BIRBAL, J. (ORAL)

*

1. By way of this appeal, the appellant has challenged the impugned judgment dated 14.05.2012 by which the probate petition of the appellant has been dismissed.

2. It is stated that the appellant is wife of late Shri Kanayo Hemrajani who died on 24.06.2011 at C-50, Mayfair Gardens, New Delhi-110016. They were having no child from their wedlock. Apart from the appellant/wife, the deceased has no other legal heir. The deceased has left behind a registered will dated 19.12.1995 which is registered with the office of Sub-Registrar Kashmiri Gate, New Delhi. The particulars of the registration are given in the impugned judgment. It is alleged that the said will was duly executed in the presence of attesting witnesses Sh. Sunil Kumar, Advocate and Shri S.K. Mathur, Advocate. However,

when the probate petition was filed, the aforesaid witnesses could not be produced and the learned ADJ dismissed the probate petition by observing as under:-

"Original Will dated 19.12.1995 of Late Shri Kanayo Hemrajani, S/o Late Shri Vishan Dass Hemrajani is placed on record. The Will is drafted by Shri S.K. Mathur, Advocate and the Will is witnessed by 2 (two) Advocates namely Shri Sunil Kumar, Advocate and Shri S.K. Mathur, Advocate. As per the provisions of Indian Succession Act, 1925 as well as per the provisions of section 63 of Indian Evidence Act, a Will cannot be read in evidence unless and until one of the attesting witness to the Will is examined before the court of law who makes deposition before this court that the deceased testator was hale and hearty and was in the sound disposing mind at the time of execution of the Will in question and has signed before the witnesses. However in the present case none of the attesting witness has been produced by the petitioner rather an additional fact has been mentioned that one Shri S.P. Aggarwal was present at the time of execution of the Will and registration of the Will and saw the testator signing on the Will. However, no endorsement to this effect has been mentioned on the Will. In the absence of such endorsement and in the absence of any of the attesting witness these are the mere averments. No explanation has been made by the petitioner as to why the attesting witnesses (the main requirement to prove the Will) are not produced before the court."

3. Ld. counsel for the appellant has submitted that when the probate petition was pending before the ld. ADJ, Shri S.K. Mathur, Advocate one

of the attesting witnesses of the Will, was residing at London and appellant/petitioner was unable to produce him from there. Now the appellant has come to know through `Times of India' Newspaper dated 25.11.2012 that Sh. S.K. Mathur, Advocate has died on 17.11.2012 at London. It is stated that the other attesting witnesses, namely, Shri Sunil Kumar Advocate could not be produced earlier as his whereabouts were not known. It is stated that now with the efforts made by the appellant/petitioner from Delhi Bar Association Office and with the help from there, his address is revealed and the appellant is in a position to produce him. It is stated that Sh. Sunil Kumar, Advocate being an attesting witness to the Will in question be allowed to be produced so that appellant/petitioner can prove her case in accordance with law.

4. It is also stated that the probate petition was unopposed before the ld. Additional District Judge as the deceased had no other legal heirs apart from the appellant/wife. It is submitted that the will is also a registered one, as such, the concerned witness from the Sub-Registrar's office be also permitted to be produced so that the registration of the will can also be proved. It is submitted that appellant was not advised by her earlier lawyer for proving the registration of will in accordance with law. Ld. counsel submits that the aforesaid additional evidence is necessary for proving the will in question and if the same is not allowed, great prejudice shall be caused to the appellant.

5. In view of above submissions made as well as keeping in view the facts and circumstances of the case and for effective disposal of the probate petition, the application for leading additional evidence is

allowed. Accordingly, the impugned judgment is set aside. The matter is remanded back to the lower court. The appellant shall appear before the concerned District Judge on 07.01.2013 at 2.00 PM and the learned District Judge shall assign the case to the concerned court. The said court will allow the appellant/petitioner to produce the aforesaid two witnesses and thereafter, shall dispose of the matter in accordance with law. The appeal stands disposed of accordingly.

VEENA BIRBAL, J DECEMBER 06, 2012 srb