Neelam Gupta vs State & Ors
2012 Latest Caselaw 3572 Del

*    IN THE HIGH COURT OF DELHI AT NEW DELHI


+     FAO 509/2011


%                                             Date of Decision: 29.05.2012


NEELAM GUPTA                                               ..... Appellant
                           Through :   Mr. Naresh Thanai, Adv.


                  versus

STATE & ORS                                                 ..... Respondents
                           Through :   None

CORAM:
HON'BLE MS. JUSTICE VEENA BIRBAL


VEENA BIRBAL, J. (ORAL)

*

FAO 509/2011 & CM 21565/2011 (u/O XLI Rule 27 CPC)

1. Present is an appeal under Section 299 of the Indian Succession Act, whereby the appellant has assailed the order dated 04.08.2011 passed by the learned ADJ, Delhi, whereby the probate petition filed by the appellant has been dismissed.

2. Briefly, the facts relevant for the disposal of present appeal are as under:-

The appellant had filed a probate petition under the provisions of Indian Succession Act, for grant of probate with respect to the estate/properties left by Smt. Uma Rani, wife of late Sh. Mohan Lal, resident of J&K-70-A, Laxmi Nagar, Delhi-92. She had alleged that deceased Uma Rani had married twice in her life time. The name of her first husband was Bhola Nath and from the said wedlock one son Hari Om Gupta was born. After the death of Bhola Nath Gupta, Uma Rani married again and from the said wedlock no issue was born. It was further alleged that Sh. Hari Om Gupta had three sons, namely, Sanjay Gupta, Rajesh Gupta and Pramod Gupta. Sh. Pramod Gupta had already died before filing the probate petition. It was further stated in the petition that appellant is the wife of Sh.Sanjay Gupta. During her life time late Smt. Uma Rani had executed a Will dated 07.12.2007 in favour of appellant i.e. wife of Sanjay Gupta bequeathing her property in her favour. Accordingly, after her death she had filed the petition for grant of probate in respect of the aforesaid Will and in the said petition she had impleaded her husband i.e. Sanjay Gupta and other legal heirs of late Uma Rani as respondents.

3. The publication/citation was made in the newspaper "Statesman". Respondent nos.1 to 3 had appeared before the concerned trial court and made a statement on 13.07.2009 that they had no objection if the probate of the Will executed by late Uma Rani @ Uma Sharma be granted in favour of the appellant. Thereafter, the appellant led the evidence and examined herself as PW-1. The learned ADJ after recording the evidence had heard the arguments and dismissed the probate petition vide impugned order dated

04.08.2011. The relevant portion of the impugned judgment is reproduced as under:-

"8. From this will it is not clear as to whether the attesting witnesses have put their signatures in the presence of the executrix of the will i.e. Late Smt. Uma Rani or not. Therefore, the will appears to have not been executed and attested properly. Further, the petitioner has not examined any of the attesting witness to prove the will as required. The petitioner was supposed to file the affidavit of at least one of the witness in support of the petition and that witness was to be examined by the petitioner so as to grant the probate of the said will. The petitioner has examined only one witness i.e. she herself. She has been unable to prove the facts as stated by her in the petition with respect to the will as the said will has not been proved on account of two reasons i.e. none of the attesting witnesses have been examined by the petitioner and the will even otherwise has been not attested by the witnesses in the presence of the deceased Smt. Uma Rani. Therefore, for want of non examination even of one of the witnesses, the court is of the opinion that the petitioner has not been able to prove her case and accordingly, the petition of the petitioner is liable to be dismissed and the same is dismissed. File be consigned to the record room."

4. The main ground on which the probate of the Will in question has not been granted to the appellant is that she has not examined any of the attesting witnesses to prove the Will. The ld. ADJ has held that the appellant was supposed to file the affidavit of at least one of the attesting witnesses in support of the petition whereas she has examined only herself, accordingly, the petition is dismissed for non-examination of one of the witnesses to the Will.

5. Aggrieved with the same, present appeal is filed. Along with the appeal an application under Order XLI Rule 27 of CPC is filed for leading additional evidence by examining one of the attesting witnesses to the Will dated 07.12.2007.

6. The learned counsel for appellant has contended that the appellant had examined only herself by filing an affidavit by way of Ex.PW1/A before the trial court as the counsel for the appellant did not advise her for examining the attesting witnesses to the Will. It is further contended that the impugned order has led to great miscarriage of justice and is not sustainable in the eyes of law. It is prayed that the appellant be given opportunity to lead additional evidence by examining Sh. Suresh Kumar Sharma, S/o late Sh. Shankar Lal, R/o A-12B, J-Block, Laxmi Nagar, Delhi -92, the attesting witness to the Will in question. It is contended that the petition for probate was not opposed by any of the respondents and they have also given no objection before the trial court. Even before this court the respondents have not appeared despite being served. It is further contended that in these circumstances there is no fault of the appellant in not examining one of the attesting witnesses to the Will. In support of his contention the counsel for appellant has relied upon the judgment of Wadi v. Amilal & Ors: JT 2002 (6) SC 16.

7. The relevant provisions of Order XLI Rule 27 of Code of Civil Procedure are reproduced as under:-

"27. Production of additional evidence in Appellate Court:- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if -

           (a)      xxxx        xxxx         xxxx        xxxx
          (aa)     xxxx        xxxx         xxxx        xxxx

          (b)     The Appellate Court requires any document to be

produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause,

the Appellate Court may allow such evidence or document to be produced, or witness to be examined."

(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."

8. The aforesaid Rule lays down that the parties to appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate court, but the appellate court may allow such evidence or document to be produced or witness to be examined if the court below has refused to admit evidence which ought to have been admitted or where the appellate court requires such additional evidence to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause. The second clause of the Rule requires that when additional evidence is required to be produced by the appellate court, the court shall record reasons for its admission.

9. The Supreme Court in Wadi v. Amilal & Ors (supra) has dealt with the provisions of Order XLI Rule 27 of CPC dealing with the production of additional evidence at appellate stage. The relevant portion of the judgment is reproduced below:-

"7. Now it is clear that rule 27 deals with production of additional evidence in the appellate court. The general principle incorporated in sub-rule(1) is that the parties to an appeal are not entitled to produce additional evidence (oral or documentary) in the appellate court to cure a lacuna or fill up a gap in a case. The exceptions to that principle are enumerated thereunder in clauses (a), (aa) and (b). We are concerned here with clause (b) which is an enabling provision. It says that if the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, it may allow such document to be produced or witness to be examined. The requirement or need is that of the appellate court bearing in mind that the interest of justice is paramount. If it feels that pronouncing a judgment in the absence of such evidence would result in a defective decision and to pronounce an effective judgment admission of such evidence is necessary, clause (b) enables it to adopt that course. Invocation of clause

(b) does not depend upon the vigilance or negligence of the parties for it is not meant for them. It is for the appellant to resort to it when on a consideration of material on record it feels that admission of additional evidence is necessary to pronounce a satisfactory judgment in the case.

10. In the present case, the probate of the Will in question has not been granted by the learned trial court as the appellant did not examine any of the attesting witnesses of the Will as per requirement of law. Order XLI Rule 27 Clause (b), provides that if the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce effective judgment, the appellate court may allow the same. The evidence of Sh. Suresh Kumar Sharma will be necessary for pronouncement of effective decision in this case as the evidence of the aforesaid witness would throw light on the validity of the Will in question. Keeping in mind that the

interest of justice is paramount, the prayer of the appellant to allow him to lead additional evidence by examining one of the attesting witness to the Will i.e. Sh. Suresh Kumar Sharma, s/o Shankar Lal is allowed. Accordingly, application under Order XLI Rule 27 CPC is allowed and the appellant is given liberty to examine Sh. Suresh Kumar Sharma, s/o Shankar Lal before the ld. trial court. The impugned judgment of learned trial court is set aside. The case is remanded back to the learned trial court for recording the evidence of Sh. Suresh Kumar Sharma, s/o Shankar Lal and to decide the matter afresh.

11. The trial court record be sent back along with a copy of judgment. The parties are directed to appear before the learned trial court on 16.07.2012.

The appeal stands disposed of accordingly.

VEENA BIRBAL, J MAY 29, 2012 srb