Rajinder Kumar Gupta vs State & Ors.
2012 Latest Caselaw 4333 Del

*    IN THE HIGH COURT OF DELHI AT NEW DELHI


+      RA.No.244/2011 in FAO 430/2008

%                                   Date of Decision: July 23 , 2012


Rajinder Kumar Gupta                                     ..... Appellant
                               Through :   Mr.V.P.Singh, Sr.Adv. with
                                           Mr.Shivesh P Singh &
                                           Mr.M.I.Chaudhary, Advocates

                      versus

State & Ors.                                            ..... Respondent
                               Through :   Mr.Ravi Gupta, Sr. Adv. with
                                           Mr.Lalit Gupta, Adv. for R-2
                                           Mr.Nikhil Singla, Adv. for R-3
                                           &4

CORAM:
HON'BLE MS. JUSTICE VEENA BIRBAL

VEENA BIRBAL, J.

*

1. A petition under Section 276 of the Indian Succession Act (hereinafter referred to as `the Act‟) was filed by the respondent no.2 herein i.e., Rameshwar Prasad Gupta stating that his mother Smt.Janaki Devi died intestate on 3rd March, 1995 and left behind estate i.e. house no.92, Banarsi Dass Estate, Delhi and he is one of the co-owners of the said property, as such, had prayed that Letter of Administration qua his share or in the alternative along with other co- owners be granted. The objections to the said petition were filed by

RA.No.244/2011 in FAO 430/2008 Page 1 of page 13 Shri Rajinder Kumar Gupta i.e., appellant herein alleging that his mother had executed a Will Ex.PW 1/RB(Mark `A‟) dated 18th August, 1984 which was acted upon and the parties occupied their respective portion in the aforesaid property as per wishes of deceased. Respondent nos. 3 and 4 who are also the son and daughter of the deceased supported the case of the respondent no.2 i.e., Rameshwar Prasad Gupta. On the basis of pleadings of the parties, issues were framed. After recording the evidence and hearing the parties, the learned ADJ vide order dated 13th October, 2008 has held that Will Ex.PW 1/RB((Mark `A‟) alleged to have been executed by Smt.Janki Devi on 18th August, 1984 as alleged by appellant was not proved as legal and valid. It was further held that no legal and admissible evidence on behalf of respondent no.2 was also produced by him, as such, prayer for grant of Letter of Administration was also rejected and the petition in this regard was dismissed.

2. Aggrieved with the same, appellant herein i.e., respondent no.2 before the trial court had challenged the order dated 13.10.2008 by filing an appeal contending therein that the learned trial court while passing the impugned order has succinctly discountenanced one of the attesting witnesses to the Will Ex.PW 1/RB(Mark `A)‟ i.e., Rameshwar Das Gupta O2W2. It was contended that the said witness was a credible witness and the trial court had wrongly ignored his evidence on the basis of alleged discrepancy with the testimony of other witness and had disbelieved the Will Ex.PW 1/RB(Mark `A‟). The said appeal was dismissed by this court vide judgment dated 7 th March, 2011.

RA.No.244/2011 in FAO 430/2008 Page 2 of page 13

3. Against the said judgment, a review petition was filed before this court which was also dismissed by this court vide order dated 28th April, 2011. Against the said order, appellant had filed the Special Leave Petition i.e. 16460-16461 of 2011 before the Supreme Court wherein leave was granted and vide order dated 18.7.2011, the appeals were disposed of which is as under:-

"Leave granted.

We have heard learned counsel appearing for the parties.

Learned counsel appearing for both the parties agree for re-hearing of the review petition. Accordingly, we set aside the impugned order dated 28.4.2011 passed by the High Court in C.M. No.8295 of 2011 and remit this matter to the High Court with a request to decide the Review Petition No.244 of 2011 afresh on merits. All the contentions including the question of tenability of the review petition are left open.

The appeal stands disposed of accordingly."

4. Ld. counsel for the appellant has contended that the judgment of this court dated 7th March, 2011 is contrary to section 63(c) of the Indian Succession Act. It is submitted that in judgment dated 7th March, 2011, this court has examined the solitary aspect i.e., signing of one attesting witness in the presence of another witness in the context of judgment delivered in the case of Janaki Narayan Bhoir

RA.No.244/2011 in FAO 430/2008 Page 3 of page 13 Vs Naraya Namdeo Kadam: AIR 2003 SC 761 leaving aside the other methods as provided under section 63(c) of the Act.

5. It is submitted that there is no requirement under law of signing of both the attesting witnesses on the Will Ex.PW 1/RB(Mark `A)‟ in the presence of each other or .signing of testatrix in the presence of both the attesting witnesses. It is submitted that while deciding the FAO, this court has ignored the vital evidence of O2W2 Shri Rameshwar Das Gupta, the second attesting witness to the Will Ex.PW 1/RB(Mark `A‟), wherein the said witness has admitted the acknowledgement being given to him by the testatrix in regard to her signatures on the Will Ex.PW 1/RB(Mark `A‟). It is submitted that O2W2 in his evidence has admitted the acknowledgement given to him by the testatrix of having signed the Will Ex.PW 1/RB(Mark `A‟) by her as well as by other witness and thereafter he had signed the Will Ex.PW 1/RB(Mark `A‟) in the presence of testatrix, as such requirement under section 63(c) of the Act is fulfilled. It is submitted that if said piece of evidence is taken into consideration, the Will Ex.PW 1/RB(Mark `A‟) stands proved. It is submitted that the order dated 7th March, 2011 dismissing the appeal is contrary to law , as such there is sufficient ground for review.

6. On the other hand, learned senior counsel for the respondent has submitted that no case for review is made out. It is submitted that the submission that this court has ignored the vital piece of cross- examination of O2W2 wherein there is deposition of acknowledgement by testatrix while passing the judgment dated

RA.No.244/2011 in FAO 430/2008 Page 4 of page 13 7.3.2011 is wrong. It is submitted that the said piece of evidence has also been considered in the judgment dated 7.3.2011, as such no case for review is made out. It is further submitted that there is total contradiction in the deposition of Sumer Singh O2W1, the writer of the Will Ex.PW 1/RB(Mark `A‟) and Shri Rameshwar Dass Gupta O2W2, the attesting witness. By reading their evidence, the proper execution of the Will Ex.PW 1/RB(Mark `A‟) is not established. It is contended that even attestation of Will Ex.PW 1/RB(Mark `A‟) in question by two attesting witnesses in the manner provided under the law is not proved.

7. Assuming that the review application is maintainable, the evidence pointed out by the learned Senior counsel for the appellant and submissions made on behalf of both the parties are considered .

8. The relevant provisions in the present context are Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. The same are reproduced as under:-

"Section 63 of The Indian Succession Act, 1925

63. Execution of unprivileged Will:- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, 1[ or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following provisions:--

(a)xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

(b)xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or

RA.No.244/2011 in FAO 430/2008 Page 5 of page 13 affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.

Section 68 of the Indian Evidence Act:-

68. Proof of execution of document required by law to be attested -

If a document is required by law to be attested it shall not be sued as evidence until one attesting witness at least has been called for the purpose of proving its execution if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:

Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act,1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specially denied.

9. As regards attestation, clause (c) of Section 63 of the Indian Succession Act, 1925 requires that Will shall be attested by two or more witnesses. It is not necessary that both of them be present simultaneously at the time of putting their signatures but the requirement is that each of the attesting witness must have been the

RA.No.244/2011 in FAO 430/2008 Page 6 of page 13 testator sign or affix his mark to the Will or has received from the testator a personal acknowledgement of his signatures or mark on the Will and each of the witnesses shall sign the Will in the presence of testator..

10. Relying on the aforesaid clause (c), the learned senior counsel for the appellant has contended that O2W2 Shri Rameshwar Das Gupta in his evidence has admitted the acknowledgement given to him by the testatrix in regard to her signature on the Will Ex.PW 1/RB(Mark `A)‟. It is submitted that O2W2 Shri Rameshwar Das Gupta clearly stated in the cross examination that testatrix had personally acknowledged before him her signature as well as signature of the first attesting witness (R.C. Gupta), as such there is due compliance of Section 63(c) of the Indian Succession Act. In support of his contention, learned counsel for the appellant has relied upon judgment of Division Bench of Calcutta High Court in Pratap Bhattacharya Vs. Asoke Bhattacharya (2007(2) CHN). The relevant paras pointed out are as under:-

"25. In this case, the attesting witness P.W. 3 is very truthful and he has said that he has not seen.

Monmotha, being another attesting witness, signing in his presence but testator told him that this was signed by Monmotha before he put his signature. Now the question is how far the statement of testator is admissible and/or relevant under the provisions of the law as the requirement of Section 63 Clause (c) is that the signature of both the attesting witnesses have to be proved. This piece of evidence to prove the signature of Monmotha is undoubtedly hearsay. Ordinarily hearsay evidence is not admissible. But there are

RA.No.244/2011 in FAO 430/2008 Page 7 of page 13 exceptions. The exceptions have been provided on the facts and circumstances as mentioned in Sections 32, 33 and also Section 6 of Indian Evidence Act. Though it is argued by learned Counsel for the respondents that the provisions of Sections 32 and 33 of the said Act are applicable but we are of the view that those are applicable in a limited situation as mentioned in the sections. However, we find relevancy in the submission of learned Counsel for the respondent that the statement made by Purna regarding proof of signature of Monmotha to Ajit is admissible. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

29. In this case, the testator who is dead, immediately after having got the signature of Monmotha said before Ajit that Monmotha had signed already, meaning thereby that he acknowledged the signature of Monmotha. The language of section 63(c) is very clear that it is not necessary that signatures by the attesting witnesses have to be made simultaneously in the presence of each other. Requirement of the law is that one attesting witness has already signed or accepted and acknowledged the signature of other person by the testator and thereafter another attesting witness has signed and seen the testator to sign and/or heard to have acknowledged the signature of other person,

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

32. Hence the signature of another attesting witness has been proved as the testator himself personally acknowledged the signature of another attesting witness."

RA.No.244/2011 in FAO 430/2008 Page 8 of page 13

11. The deposition of Sh. Rameshwar Gupta O2W2, the second attesting witness about the acknowledgment is considered. The said witness in examination-in-chief has stated that parties are known to him. The testatrix was his aunt (Bua). The parties are sons of his aunt. He has seen the original Will Ex.PW 1/RB(Mark `A‟). As per him, the testatrix had come to his house and told him that she had signed the Will Ex.PW 1/RB(Mark `A‟) and he should sign the same. On her asking, he had signed at point `c‟. He has further deposed that he does not identify the signature of the other attesting witness on the Will Ex.PW 1/RB(Mark `A‟).

12. Shri Rameshwar Dass Gupta O2W2 in his cross-examination has stated that testatrix „s son i.e., appellant had accompanied her to his house and the typed document mark „A‟ was brought to his residence. The same was not read over in his presence to the testatrix. When it was brought to him for signing as a witness, it was already signed by the testatrix as well as other witness. Thereafter he has made a voluntary statement that testatrix had told him so. He has further deposed that the other witness was not present nor he had signed in the presence of other witness. The relevant portion of his cross-examination is as under:-

"xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx It is correct that this typed document mark A was brought to me at my residence. It is correct that it (document mark A) was not read out in my presence to Smt.Janki Devi. It is correct that this

RA.No.244/2011 in FAO 430/2008 Page 9 of page 13 document was signed by Smt.Janki Devi and the other witness when it was brought before me to sign as a witness. Vol. Smt.Janki Devi had told me so. It is correct that the Will only was brought before me and I had signed only those pages which had come before me. It is correct that the other witness was not present before me. It is also correct that he did not sign in my presence. I did not accompany Smt.Janki Devi to any other place on that day. It is correct I have not read the document mark A on that day. Again said I cannot remember whether I had read it or not. Vol.Smt.Janki Devi had also told me that she had executed her Will. The words encircled in red lines at points A to A are not reflecting as to what transpired on that day in as much as Shri R.C.Gupta did not sign in my presence Smt.Janki Devi also did not sign in my presence. It is incorrect to suggest that Smt.Janki Devi did not visit my residence on 18.8.1984 for purposes deposed by me."

13. The other attesting witness has not been produced in the present case. O2W1 Shri Sumer Singh has deposed that he is the deed writer and on the instructions of the testatrix, Will Ex.PW 1/RB(Mark `A‟) was got typed by him. The relevant portion of his deposition is as under:-

"This document was signed at my residence by Smt.Janki Devi who had also affixed her thumb impression on both the pages. The attesting witnesses namely Sh.R.C.Gupta & Smt.Rameshwar Dass Gupta were also present at that time and they had also signed in my presence on both the pages.

Smt.Janki Devi had given me instructions 2-3days

RA.No.244/2011 in FAO 430/2008 Page 10 of page 13 before the date of execution of the document. I noted down the instructions and asked her to contact after 2-3 days along with two witnesses of her choice. She came to my office on 18.8.1984. I read out the documents to her thereafter, she as well as the attesting witnesses signed. She had also affixed her thumb impression on both the pages. At that time when she had signed she was in sound disposed mind. She was under no pressure from anybody at the time of execution of the document."

14. There are various contradictions in the evidence of Shri Sumer Singh O2W1 and the attesting witness O2W2 Rameshwar Dass Gupta. As per evidence of O2W1, the Will Ex.PW 1/RB(Mark `A‟) was signed by Smt.Janki Devi i.e. testatrix on 18.8.1984 at his residence/office i.e., 2599, Chatta Pratap Singh Kinari Bazar, Delhi-6 who had also affixed her thumb impression on both the pages. He has further deposed that the attesting witnesses Shri R.C. Gupta (not produced in evidence) and Shri Rameshwar Das Gupta O2W2 were also present at that time and they had signed in his presence on both the pages as attesting witnesses to the Will Ex.PW 1/RB(Mark `A‟).

On the other hand, Shri Rameshwar Dass Gupta, O2W2 , one of the attesting witnesses has deposed that testatrix who is her aunt (bua) had come to her house i.e., 93, Banarsi Das Estate, Timar Pur on 18.8.1984 for getting his signature on the Will. In cross-examination he had stated that the testatrix along with her son Rajinder Kumar Gupta i.e., appellant had come to his house where he had signed on the Will Ex.PW1/RB ((Mark `A‟). The other serious contradiction

RA.No.244/2011 in FAO 430/2008 Page 11 of page 13 pointed out is that Sumer Singh O2W1 has deposed that he had read out the document and she and attesting witnesses had signed on it. On the other hand, O2W2 has stated that when document was brought to him, the testatrix and other witness had already signed on it and the other witness had not come nor he had signed in his presence. Further Sh.Sumer Singh, O2W1 has deposed that he had brought the register showing entry of testatrix and the attesting witnesses having come to him on the day of execution of Will Ex.PW 1/RB(Mark `A‟). On the other hand, Shri Rameshwar Dass Gupta, O2W2 has deposed that he did not any where with the testatrix.

15. Further Shri Rameshwar Das Gupta O2W2 in examination-in- chief has stated that the has signed on the Will Ex.PW 1/RB(Mark `A)‟ on the asking of testatrix. In cross-examination he has stated that he cannot say if appellant herein had asked him to sign on Will Ex.PW 1/RB(Mark `A‟).

16. The aforesaid contradictions are serious in nature and go to the root of the matter and creates about the due execution of the Will Ex.PW 1/RB(Mark `A)‟. In these circumstances, the evidence of O2W2 to the effect that testatrix had acknowledged before him having signed the Will Ex.PW 1/RB(Mark `A‟) as well as by other witness is not worthy of credence. Further no deposition about testatrix having acknowledged before him is made in examination-in-chief. In cross- examination also he has made a voluntary statement.

17. The learned District Judge has also noted the contradictions and has observed as under:-

RA.No.244/2011 in FAO 430/2008 Page 12 of page 13 "Maximum from the evidence of O2W1, the preparation of Will Ex.PW 1/RB(Mark `A‟) is established but due execution in the manner as prescribed under section 63 of Indian Succession Act is not proved. The major contradictions in the statement of witnesses of the respondents create doubt about the due and proper execution of the Will Ex.PW 1/RB(Mark `A‟). Due to contradictory facts on certain aspects deposed by the witness of the respondent, it is also difficult for the court to find out which of the witnesses of the respondent is telling correct facts and who is telling lie."

18. Keeping in view the major contradictions in the evidence of witnesses Rameshwar Dass Gupta O2W2 and Sh. Sumer Singh O2W1, the evidence pointed out is of no help to the appellant and cannot be considered. Further the evidence is to be seen as a whole and not in pieces. The evidence of Shri Rameshwar Dass Gupta O2W2 also cannot be seen ignoring the evidence of Shri Sumer Singh, O2W1 as is contended. Reading the evidence on record, due execution of Will Ex.PW 1/RB(Mark `A‟) in the manner as prescribed under section 63(c) of Indian Succession Act, 1925 is not proved. Accordingly, the review application is dismissed.

VEENA BIRBAL, J July 23, 2012 ssb

RA.No.244/2011 in FAO 430/2008 Page 13 of page 13