Mohd. Bashi vs State & Ors.
2013 Latest Caselaw 5060 Del

*                    HIGH COURT OF DELHI AT NEW DELHI

+           F.A.O. No.141 of 2012 & C.M. No.5828/2012 (for stay)

                                    Decided on : 6th November, 2013


MOHD. BASHI                                        ...... Appellant
                       Through:   Mr. Ajay Bahl, Advocate.

                         Versus

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

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. This is an appeal filed by the appellant under Section 299 of the

Indian Succession Act against the order dated 8.2.2012 by virtue of which

the learned District Judge, North, dismissed the probate petition bearing

No.115/2008 filed by the appellant for lack of evidence to have proved

the Will dated 24.5.2001 to be last and final Will of the deceased/testatrix

Akhtari Begum.

2. I have heard the learned counsel for the appellant. The only

contention of the learned counsel for the appellant for entertaining this

appeal has been that the appellant be given one opportunity to produce

the attesting witnesses.

3. Briefly stated the facts of the case are that the present appellant

filed a petition under Section 276 of the Indian Succession Act seeking

probate/Letters of Administration in respect of the Will dated 24.5.2001

purported to have been made by one Mst. Akhtari Begum (since

deceased/testatrix). In the Will it was allegedly stated that the land

measuring 39 bighas 13 biswas bearing khasra Nos.487/439/53/1,

487/439/1/1 and 487/439/53/1/2 situated in the area of village Sheikh

Sarai, Tehsil Mehrauli, New Delhi was bequeathed by her in favour of the

appellant. The appellant had claimed to have purchased the said land on

the basis of the agreement to sell, receipt, affidavit, general power of

attorney, etc. and further got the Will in question executed in his favour.

It was alleged in the probate petition that in the month of June, 2008, the

appellant had applied before the Tehsildar, Sub-Division Mehrauli for

mutation of his name in the revenue record on the basis of the said

documents along with 'no objection' whereas the mutation was resisted

by respondent No.2, the son of the testatrix. It was also alleged that

respondent No.2, the son of the testatrix had also entered into an

agreement to sell with the appellant herein on 28.12.2006. The case of

the appellant was that the testatrix had died after making the Will which

was objected to by the sons of the testatrix.

4. On the pleadings of the parties, following issues were framed :-

"(i) Whether the Will dated 24.5.2001 propounded by the petitioner is the last Will and testament of deceased Smt. Akhtari Begum and was executed by her in sound disposing state of mind? OPP

(ii) Whether the petitioner is entitled to the grant of probate/letters of Administration to the Will dated 25.5.2011? OPP

(iii) Relief."

5. The appellant in support of his case, examined PW-1, Vijay Kumar

Rawat, UDC, Sub-Registrar IV, Seelampur, Nand Nagri. Despite

sufficient opportunities having been given, the appellant did not produce

any other evidence. No attesting witness has been examined which is one

of the essential requirements of proving a Will in case the attesting

witnesses are alive. The learned trial court after giving sufficient number

of opportunities closed the evidence and decided all the issues against the

appellant and dismissed the probate petition (PC-115/2008) on 8.2.2012.

6. As stated above, the learned counsel for the appellant had only

contended before this court that one more opportunity be given for the

purpose of proving the Will. Along with the appeal, the appellant has

filed copies of the order sheets which were passed by the trial court from

time to time. A perusal of the order sheets shows that issues were framed

on 28.7.2009 and the matter was adjourned to 29.9.2009 for the purpose

of recording of evidence when statement of one witness PW-1, Vijay

Kumar Rawat, was recorded. The matter was further adjourned to

20.11.2009 when no witness was present. Adjournment was sought by

the counsel for the appellant on the ground that the appellant, Mohd.

Bashi, is not well. The matter was again adjourned to 19.1.2010. On the

said date also, no witness was present and adjournment was prayed for.

The matter was further adjourned to 9.3.2010 and the appellant was

directed to supply a copy of evidence by way of affidavit in advance at

least seven days before the next date of hearing to the learned counsel for

the objector/respondent. On 9.3.2010, no witness was present, no

affidavit was filed and once again adjournment was requested and the

matter was adjourned to 5.5.2010. Finally on 21.1.2011 on which date

the matter was listed, it did not proceed further as no witness was present

again and the trial court, in the interest of justice, gave one more

opportunity for adducing appellant's evidence for 21.3.2011 but this was

subject to his payment of cost of `2,000/-.

7. On 21.3.2011, although the cost of `2,000/- was paid but there was

again no witness despite keeping the matter pending till 3 p.m. No steps

were taken to summon any witness as process fee was not filed. In the

larger interest of justice, the court was over-indulgent and granted one

more opportunity to complete his evidence after imposing a cost of

`5,000/-. The matter was adjourned to 24.5.2011. On 24.5.2011, the

matter was called. The nephew of the appellant had appeared who

wanted the matter to be passed over and the matter was fixed at 12:30

p.m. At 12:30 p.m., no body appeared and finally at 2:40 p.m., the court

was constrained to pass an order for closure of evidence as no witness

was either produced or summoned. The probate petition was thereafter

dismissed by the impugned order.

8. A perusal of the aforesaid order sheets clearly show that sufficient

number of opportunities had been granted to the appellant to adduce

evidence. One of the requirement of proving the Will as is envisaged

under Section 63 of the Indian Succession Act read with Section 68 of the

Evidence Act clearly lays down that if both the attesting witnesses are

alive at least one of the attesting witness has to testify.

9. In the instant case, no effort ever seems to have been made by the

appellant to produce any attesting witness in order to discharge the onus

of proving the Will. The appellant seems to be taking it too casually and

the court also being over indulgent had given undue latitude to the

appellant to adduce evidence when it ought to have been closed after

giving one or two opportunities at best.

10. I am not at all convinced by the justification of non-production of

evidence given by the appellant before the trial court despite sufficient

number of opportunities having been given. As a matter of fact by this

over indulgent attitude of the courts below in granting adjournments

liberally, the courts are today inundated with cases which ought to be

dealt with expeditiously. This is one such case where the probate petition

has been pending since 2009 till middle of 2012 when it was dismissed

for want of evidence. I am not at all inclined to condone such negligent

behaviour on the part of the litigant. I do not find any merit in the appeal

and the same is dismissed.

V.K. SHALI, J.

NOVEMBER 06, 2013 'AA'