Delhi High Court
Jagdish Parshad vs State & Ors. on 15 April, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No. 109/2012
% 15th April, 2014
JAGDISH PARSHAD ......Appellant
Through: None.
VERSUS
STATE & ORS. ...... Respondents
Through: Mr. Nirmal Singh Berchhiwal,
Adv.R-4.
Mr. Vinod Wadhwa, Adv. for R-5.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This first appeal is filed under Section 299 of the Indian
Succession Act, 1925 against the judgment of the probate court dated
2.12.2011. The probate court below has dismissed the probate petition on
the ground that the Will has not been validly proved as per the deposition of
the attesting witness.
FAO 109/2012 Page 1 of 4
2. The relevant observations made by the court below are
contained in para 19 of the impugned judgment and the same reads as
under:-
"19. Coming to the present matter, PW2 Sh. R.D.Kashyap
was examined as one of the attesting witness. He has led
his evidence by way of affidavit Ex.P-2. Here it is
necessary to reproduce, the relevant portion of his
affidavit which is as under:-
3. That Smt. Shanti Devi made will dated
31.7.1991 which was last will and testament. The
testatorix was in sound state of disposing mind and was
in good physical health at the time of making Will, the
said Will was duly registered with the Sub Registrar,
Delhi, and the same is exhibited as PW2/1 and the
Testatorix put her thumb impression on each page of the
same at point A on each pages, in my presence and I also
signed the same in her presence on last page i.e page
no.4 at point B. The Will is true and correct and the
Testatorix bequeathed her property in favour of the
petitioner, as only the petitioner was looking after and
caring for her.
From mere reading of the said portion of utmost importance of
examination-in-chief of this witness clearly reflects that this
witness has not uttered even a single word on score of presence
of the second attesting witness on spot at the time when the
testator has put her thumb impression etc. The detailed cross
examination of this witness does not help the petitioner in
proving the fact that the testator has put her thumb impression
on the Will in presence of two witnesses. No doubt, the Will
could be proved by examining only one of the attesting witness
as per Section 68 of the Indian Evidence Act. But the
compliance of Section 63 of Indian Succession Act cannot be
ignored and it is mandatory that the presence of the second
attesting witness at the time of signing of the Will by testator
FAO 109/2012 Page 2 of 4
must come on record. In the absence of any such evidence the
Will cannot be termed to be fully proved or genuine. The
findings of the aforesaid judgment are fully applicable to the
facts of instant case and this Court has no hitch to reach at
conclusion that the Will has not been proved as per Law. The
issue stands decided in favour of the respondent and against the
plaintiff."
3. In my opinion, the present is a fit case for exercise of powers by
this Court under Section 165 of the Indian Evidence Act, 1872 read with
Order 41 Rule 27 CPC, more so because the failure on the part of the
appellant/petitioner is a technical defect. I may also note that mistakes do
take place in the conduct of the cases by Advocates and it is not right that
valuable rights are lost on account of formal inadequacy in deposition with
regard to proof of the Will.
4. In my opinion, the present case is also a fit case for this Court
to suo moto exercise powers under Order 41 Rule 27 CPC so as to do
complete justice in the facts of the present case.
5. In view of the above, the impugned judgment of the probate
court dated 2.12.2011 is set aside and the appellant is given liberty to lead
fresh evidence in support of proof of the registered Will dated 31.7.1991
executed by the deceased Smt. Shanti Devi and who was the owner of the
FAO 109/2012 Page 3 of 4
property bearing house no. 2726-A, Chhatta Girdhar Lal, Gali Arya Samaj,
Bazar Sita Ram, Delhi-110006.
6. Parties are directed to appear before the District and Sessions
Judge (West), Tis Hazari Courts, Delhi on 16.7.2014. District and Sessions
Judge will mark the probate petition to a competent court for disposal in
accordance with law and the observations made in the present order. Parties
are left to bear their own costs.
7. Since the appellant-petitioner is not represented at the disposal
of this appeal, the trial court will, before proceeding with the matter, issue
notices to the appellant/petitioner as also his counsel in this Court as well as
before the said court.
APRIL 15, 2014 VALMIKI J. MEHTA, J.
ib
