Nutan Kumar And Anr. vs Rajesh Arora And Ors.
2014 Latest Caselaw 2823 Del

A-1
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                     Judgment reserved on : 28.03.2014
                     Judgment delivered on : 30.05.2014
               REVIEW PET. 315/2013
NUTAN KUMAR AND ANR.     ......Appellants/ Review Petitioner
            Through: Mr.V.S.Chauhan and Mr. N.Chaudhary,
                     Advocates.
            Versus

RAJESH ARORA AND ORS                      .......Respondents
              Through: Mr.Sumit Bansal and Mr.Ateev Mathur,
                       Advocates.
CORAM:
HON'BLE MR.JUSTICE S.RAVINDRA BHAT
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

C.M. No.9386/2013 (exemption) 1 Exemption is allowed subject to just exceptions. Application disposed of.

C.M. No.9385/2013 (for condonation of 92 day's delay in filing review petition) 2 This application seeks condonation of delay of 92 days in

preferring this review petition. Submission being that the petition is in

time if the period of limitation is counted from 22.4.2013 which was the

date of the order passed by the Supreme Court permitting the appellant

to file the review petition. Accordingly condonation of delay has been

sought. Reply has not been filed in spite of opportunity. There is also

no substantial opposition to this application. In view thereof, the delay

is condoned.

REV.PET. No.315/2013 3 Nutuan Kumar (hereinafter referred to as the "petitioner") seeks a

review of the order dated 11.01.2013 vide which the appeal filed by the

petitioner seeking setting aside of the order dated 25.3.2009 (wherein

the probate petition filed by Rajesh Arora-hereinafter referred to as the

"respondent"-seeking probate of the will (Ex.PW-4/3) dated 11.6.1995

of his father Tilak Raj had been decreed) was dismissed.

4 Petitioner aggrieved by the said order had filed a Special Leave

Petition. On 22.4.2013 the Supreme Court had passed the following

order.:

"Learned counsel for the petitioners states that he has raised many issues which have not been dealt with by the High Court particularly in respect of application of Section 91 of the Evidence Act. We do not see any reference to any of such submissions made by the High Court.

In view of above, learned counsel for the petitioners prays for and is permitted to withdraw the special leave petition with a liberty to file review petition. In case the learned counsel for the petitioners has argued anything which has not been dealt by the High Court, the High

Court may proceed and decide the review application in accordance with law.

It is made clear that we have not expressed any opinion on the merits of the case."

5 Accordingly, the present petition has been filed.

6 The grounds of review are contained in sub-paras (A) to (Q)

running into almost 20 pages. Most of these grounds relate to

arguments which had already been addressed at the time when the order

dated 11.01.2013 was passed. Written submissions have also been filed.

They are largely based on the version of PW-4. The following two-fold

vehement submission has been made by the learned counsel for the

petitioner, before this Court:

i. The evidence has not been correctly appreciated;

mandatory provisions of Section 63 (c) of the Indian

Succession Act and Section 68 of the Indian Evidence Act

have not been adverted to. Attention has been drawn to the

various portions of the testimony of PW-4. To support his

argument, learned counsel for the petitioner has placed

reliance upon (1994) 5 SCC 135 Bhagwan Kaur Vs. Kartar

Kaur & Ors. and (2003) 12 SCC 35 Bhagat Ram and

Another Vs. Suresh and Ors.; the submission being that a

will is required to be proved according to the provisions of

Section 63(c) of the Indian Succession Act and Section 68

of the Evidence Act; the attesting witness must have the

requisite animus testandi to attest the document at the time

when he attested it; the registration of the document will

not obviate these mandatory clauses.

ii. Section 91 of the Indian Evidence Act has been ignored,

the effect of which would be that oral evidence contrary to

a written document cannot be looked into; the submission

being that Balbir Singh was also an attesting witness as is

evident from Ex.PW-4/3.

7 Arguments have been refuted by the learned counsel for the

respondent. It is pointed out that on no count does the order under

challenge call for any review, the submission being unless and until

there is a patent perversity or an error manifest on the face of the record,

the parameters for review as contained under Section 114 of the Code of

Civil Procedure, 1908 (hereinafter referred to as the 'Code') read with

Order 47 of the said Code does not permit a review. To support this

submission, reliance has been placed upon a judgment of the Apex

Court reported as 2013 (10) Scale 113 Kamlesh Verma Vs. Mayawati &

Others.

8 Arguments have been heard. Record has been perused.

9 There is no doubt to the settled legal proposition that a prayer

seeking review of an order can be granted only if the parameters of

review as contained in Order 47 of the Code are satisfied. There must

be a material irregularity or an error apparent on the face of the record or

it must be shown that the evidence has been appreciated illegally.

10 The facts have been recorded in the order dated 11.01.2013 and

for the sake of brevity we do not think it necessary to repeat them.

Record shows that the deceased Tilak Raj was the father of both the

petitioner and the respondent. He had died leaving behind a will

(Ex.PW-4/3) dated 01.6.1995 bequeathing his property in favour of the

respondent. Tilak Raj's other legal heirs comprised of a third son and

two daughters. His wife had pre-deceased him. The petitioner had been

disinherited. This is his grievance.

11 Ex.PW-4/3 was admittedly signed by the testator. Perusal of this

document shows that in the column of the list of witnesses, there are two

persons mentioned. The first is R.R.Bhardwaj, Advocate; this column

does not contain the address of R.R.Bhardwaj. The second witness is

Yashpal Singh (PW-4); his address and particulars have been given.

The testator had signed above his name. The fact that the testator had

signed the document (as noted supra) is admitted.

12 The face of the document clearly shows that there were two

attesting witnesses namely R.R.Bhardwaj and PW-4. R.R.Bhardwaj did

not have an address mentioned in the column. The respondent (PW-1)

on oath had deposed that after the demise of his father, when he saw the

will, he read the name of R.R.Bhardwaj but he could not contact him as

no address was mentioned there; he did not know him earlier. On the

other hand the petitioner (RW-1) admitted that he had met

R.R.Bhardwaj about this case; he also admitted that an application under

Order 1 Rule 10 of the Code had been filed by R.R.Bhardwaj; although

he denied the suggestion that this application was filed at his behest.

The record substantiates that an application had been filed by

R.R.Bhardawj seeking impleadment in the present case; averment in the

application being that he had not attested Ex.PW-4/3. He had, however,

died before this application could be decided.

13 Thus, the only other attesting witness to the will was Yashpal

(PW-4). He has come into witness box on 27.02.2004. This was after

coercive proceedings had been ordered against him. Bailable warrants

had been issued and, pursuant to a bond executed by him, his presence

was secured in the court. On oath he had admitted his signatures at

point "Z" on Ex.PW-4/3.

14 After PW-4 had deposed in part on 27.02.2004, the respondent on

12.3.2004, had filed an application seeking permission of the Court to

declare PW-4 as hostile and to cross-examine him; in this application it

had been averred that PW-4 was demanding a sum of Rs.2 lakhs to

depose correctly or else he would not come to the Court. On 19.4.2004,

a Bench of this Court had allowed this prayer of the respondent,

permitting the Local Commissioner/Joint Registrar who was examining

the witness to consider this request of the respondent. The second

prayer urged in this application i.e. that a clerk officer from the office of

Sub-Registrar also be summoned to depose with regard to the procedure

for registration of wills, was also allowed subject to the rules available

in the office of the Registrar. On 16.9.2004, the Local Commissioner/

Joint Registrar has declared PW-4 as a hostile witness and permitted the

respondent to cross-examine him. PW-4 in this cross-examination

admitted that witness No.2 (R.R.Bhardwaj) had signed the document at

the point at which stamp had been affixed with his name. He, however,

continued to remain in conflict as to whether he had signed this

document in the morning or in the evening. PW-4 had otherwise also

admitted that the document was registered and whenever a document is

registered it is presumed to be complete in all respects. Relevant would

it be to note that PW-4 was working as a clerk in an office at Kashmere

Gate dealing with registration of documents, which job he was doing for

the last one decade i.e. since 1995; he was obviously well versed with

this task.

15 It was in this background that the testimony of PW-4 was

appreciated. Trite it is to state that no single sentence can be extracted

from the testimony of a witness, to give it a meaning which may not be

given when the version is read in its entirety; this being against the

canons of appreciation of evidence. Para 9 of the order under challenge

had dealt with his testimony. It is reproduced as under:

"The testimony of PW-4 has to be tested on this touch stone. PW-4 in clear and categorical terms has admitted his signatures on Ex.PW-4/3.

PW-4 was working as a Clerk with the document writer at Kashmere Gate at the relevant time; he has admitted that he used to sign as a witness on documents 2-3 times in a month; there was a heavy rush hour in the office of the Sub-Registrar till 2-3 P.M and as such he could not notice as to at which place the second witness had signed near the stamp. He has also admitted the factum of the testator having signed the document as also the second witness Mr. R.R. Bhardwaj having attested it over the stamp affixed of R.R. Bhardwaj. This deposition clearly establishes that PW-4 had signed Ex.PW-4/3 knowing fully well that he was signing in his capacity as an attesting witness; he had in fact signed Ex.PW-4/3 after the testator had affixed his signatures on it; the second witness was also known to him by name and reference to R.R.Bhardwaj has been noted; PW-4 having admitted that R. R. Bhardwaj had signed over the stamp affixed of his name. It is also not in dispute that the testator was present for the registration of the document which is clear from the back page of Ex.PW-4/3 where the names of other two witnesses Yashpal Singh and R.R. Bhardwaj have also been noted. In fact no suggestion has been given to PW-4 on this count that the testator was not present at that time."

16 This court also notes that PW-3, UDC, from the office of the Sub-

Registrar had produced the summoned record relating to Ex.PW-4/3;

thus the admitted position being that the will in question was a

registered document.

17 Section 71 of the Indian Evidence Act deals with such a situation.

It is an exception to the general rule; it admits proof of the execution of

the document by other evidence where the attesting witness denies or

does not recollect the execution of the document.

18 In AIR 2008 SC 2485 Babu Singh & Ors. Vs. Ram Sahai @ Ram

Singh, the Supreme Court in dealing with this provision of law had cited

with approval, the judgment of a Bench of the Calcutta High Court

reported as AIR 1939 Cal 688 Hare Krishna Panigarhi Vs. Jogneswar

Panda and Ors. . The law on Section 71 of the Evidence Act had been

summed up as follows:

"This presupposes in my opinion that the witness is actually produced before the Court and then if he denies execution or his memory fails or if he refuses to prove or turns hostile, other evidence can be admitted to prove execution. In the case referred to above the witness was actually before the Court and afterwards turned hostile. In this case however, the witness was not before the court at all and no question of denying or failing to recollect the execution of the document did at all arise. The plaintiff simply took out a summons as against this witness and nothing further was done later on. In a case like this where the attesting witnesses are not before the Court, Section 71, Evidence Act, has in my opinion, got no application. In such cases it is the duty of

the plaintiff to exhaust all the processes of the Court in order to compel the attendance of any one of the attesting witnesses and when the production of such witnesses is not possible either legally or physically, the plaintiff can avail himself of the provisions of Section 69, Evidence Act.

19 The facts of the instant case are almost identical to the facts of the

case cited above. One attesting witness R.R.Bhardwaj had died. After

all efforts, including coercive efforts, to secure the presence of PW-4, he

finally appeared in the witness box. Although he had admitted his

signatures on Ex.PW-4/3, he was in conflict as regards the time when he

had signed the document; he was also silent as to whether the testator

was present at that time or not. He was clearly a hostile witness.

20 It was in this background that the order under challenge had noted

that the entire document (Ex.PW-4/3) is one which had to be looked

into. That PW-4 was well-versed with the registration of documents,

having admitted on oath that a document is registered only after all

formalities are completed; the endorsement on the back page of

Ex.PW-4/3 noting that the contents of the document had been read over

and explained to the testator; the signatures of the two attesting

witnesses in the column of witnesses at serial nos.1 and 2 i.e. of

R.R.Bhardwaj and PW-4 appearing therein were all adverted to in the

order.

21 The Supreme Court, in AIR 2007 SC 1975 Benga Behera and

Anr. Vs. Braja Kishore Nanda and Ors., while citing with approval a

judgment reported as AIR 1975 Ker 141 Ittoop Varghese Vs. Poulose

and Ors., had noted that Section 71 would be attracted when a witness

deliberately and falsely denies that he had not attested the will and in a

situation of that nature, the Court would be entitled to look into the

totality of the circumstances, so as to enable it to arrive at a conclusion

on the question of attestation. In this context, it had noted as follows:

"In Ittoop Varghese case (supra), the witnesses categorically stated that they had not seen the testator signing and did not gather any personal acknowledgment from the testator on his signature in the Will and further that they did not sign in the presence of the testator. It was a case where the statement of the witnesses was found to be wholly false. It was found having regard to the fact situation obtaining therein and in particular having been found that the testator knew about the formalities for the due execution of a valid Will and in fact wanted to assure himself that no quarrel should arise between his sons after his death regarding the Will or his signature and only for that purpose he got it registered. It was furthermore noticed that the Sub-Registrar who

had registered the document, on his examination, affirmed that the document was read over to the testator and the testator acknowledged his signature in the Will and also signed in token of presenting the Will before the Sub-Registrar. The Sub-Registrar had also signed it as one of the witnesses. When a Sub-Registrar had signed the document as a witness and after that DW-5 had signed as an attesting witness upon execution of the document by the testator, according to the High Court the circumstances of the case were sufficient to come to the conclusion that there was proof of the due compliance of the formalities required by Section 63 of the Succession Act in that case.

22 A Bench of the Calcutta High Court in AIR 1940 Cal 189

Jaikarandas Agarwalla and Anr. Vs. Protapsing Agarwalla & Anr. had

noted that the word "execution" appearing in Section 71 must be given

the same meaning as in Section 68 of the Evidence Act. The Court

noted that "in case of a document which is not valid without attestation,

execution not only means signing by the executant but it means and

includes attestation as well which is the last of the series of the acts

necessary to give completeness and a formal validity to the deed". The

Calcutta Bench relying upon (1937) 41 C.W.N.306 Hari Nath Ghose Vs.

Nepal Chandra Rai. had answered as follows:

"In this view it would be necessary to call an attesting witness under Section 68 not merely to prove the signature of the executants but to prove attestation as well and if such witness turns hostile or refuses to prove execution or attestation other witnesses may be called for the same purpose. If, on the other hand, we accept the view of Mr.Bagchi that execution does not include attestation the result, in my opinion, would be exactly the same. In that case Section 68 would not make it compulsory on the plaintiff to examine any attesting witness at all for the purpose of proving attestation and there would be no necessity to invoke Section 71 in case the attesting witness proves hostile. The first branch of Mr. Baghi's contention therefore must fail."

23 In fact the very same arguments which have been addressed

before the Reviewing Court were addressed at the time when the order

under challenge was passed. This review petition is more in the nature

of an appeal. There is no error or material irregularity in the order dated

11.01.2013 which, in any manner, can call for its review.

24 Thus, the first line of the argument of the learned counsel for the

petitioner is completely devoid of merit.

25 The second argument of the learned counsel for the petitioner on

the proposition of Section 91 of the Indian Evidence Act also has to be

necessarily read against him.

26 Section 91 reads herein as under:

"Evidence of terms of contracts, grants and other dispositions of property reduced to form of documents.- When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinafter contained." 27 This section postulates that where the terms of disposition of

property have been reduced into a document (as in this case the will

Ex.PW4/3) no oral evidence will be given, which is contrary to the

terms of the said document. There are two exceptions to this Section.

28 Exception -2 reads herein as under:

"Exception.2.-Wills admitted to probate in India may be proved by the probate."

29 A facial reading of Ex.PW-4/1 clearly shows that Balbir Singh

was not an attesting witness; his name is not under the two serial list of

the attesting witnesses. This fact finding has already been endorsed by

this Court in the judgment under challenge. It cannot be reexamined in

this review petition. Even otherwise, this Court, noting the fact that the

probate petition has been decreed on sound and credible evidence after

noting that the requirements of Section 63 (c) of the Indian Succession

Act and Section 68 of the Indian Evidence Act have been fulfilled, this

argument of the learned counsel for the petitioner is also bereft of merit.

30     Review petition is without any merit.
31     It is dismissed with costs quantified at Rs.25,000/-.

C.M. No.9384/2014 (for stay)

32     Since the review petition has been dismissed, this application,
having become infructuous is also dismissed.


                                        INDERMEET KAUR, J.



                                        S.RAVINDRA BHAT, J.

MAY 30, 2014
Ndn