Delhi High Court
Anil Kumar Gupta & Anr. vs State & Anr. on 29 May, 2015
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No. 47/2012
% 29th May, 2015
ANIL KUMAR GUPTA & ANR. ..... Petitioners
Through: Mr. S.Kumar and Mr. Sanjay Kr.
Singh, Advs. for applicant/Sh. Sunil
Gupta.
versus
STATE & ANR. ..... Respondents
Through: Mr. Satyakam, Adv. for GNCTD.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
Review Petition No. 286/2015
1. By this review petition filed under Section 114 of the Code of
Civil Procedure, 1908, review is sought of the order of this Court dated
12.3.2014 which disposed of the first appeal by remanding the matter for
additional evidence. This order dated 12.3.2014 reads as under:-
"1. This first appeal is filed under Section 299 and 384 of the
Indian Succession Act against the order of the probate court dated
13.10.2011 which has dismissed the probate petition bearing
RP 286/2015 in FAO 47/2012 Page 1 of 4
no.28/2009 seeking probate with respect to the Will dated 13.9.2004
of late Sh. Sunder Lal Gupta.
2. The probate court in para-14 of its judgment has given the
following conclusions for dismissing the petition.
"14. It is, in the instant case, thus apparent that the Will was not
executed as per the provisions of Indian Succession Act, 1925 as it
was not attested by two witnesses, and therefore, cannot fall into the
scope and ambit of legally executed Will notwithstanding the fact
that the testimony has gone unrebutted and the respondent has not
come forward to argue the case. Accordingly, the issue no.1 is
decided against the petitioner and in favour of the respondent."
3. Considering the fact that in the present case no objections were
raised on behalf of the objectors and most of the objectors were ex
parte, I deem it fit to exercise my powers under Order 41 Rule 27 ,
23(A) and Section 165 of the Indian Evidence Act, 1872 to permit the
appellants/petitioners to lead additional evidence before the probate
court in its petition seeking probate of the Will dated 13.9.2004 of late
Sh. Sunder Lal Gupta.
4. In view of the above, the petition is allowed and the matter is
remanded under Order 41 Rule 27, 23(A) CPC and the petitioner will
be allowed to lead additional evidence.
5. Parties to appear before the District & Sessions Judge (North)
Tis Hazari Courts, Delhi on 24th April, 2014 and the District and
Sessions Judge will mark the probate petition for further proceedings
to an appropriate in accordance with law."
2. The main petition before the trial court was a probate petition
by two sons Sh. Anil Kumar Gupta and Sh. Ajit Kumar Gupta of the
deceased Sh. Sunder Lal Gupta. Late Sh. Sunder Lal Gupta had three sons
RP 286/2015 in FAO 47/2012 Page 2 of 4
namely Sh. Anil Kumar Gupta, Sh. Sunil Kumar Gupta and Sh. Ajit Kumar
Gupta. The Will in question dated 13.9.2004 disinherited the second son Sh.
Sunil Kumar Gupta by observing that Sh. Sunil Kumar Gupta has already
separated from the family and which Sh. Sunil Kumar Gupta is the review
petitioner before this Court. Sh. Sunil Kumar Gupta admittedly after filing
of objections did not appear in the trial court, and was proceeded ex parte. It
is also noted that no other person other than the review petitioner/Sh. Sunil
Kumar Gupta filed any objections. It is in these circumstances that one
more opportunity was given to the petitioner to lead additional evidence by
the impugned order of this Court dated 12.3.2014.
3. Learned counsel for the review petitioner/Sh. Sunil Kumar
Gupta, and who after filing objections in the trial court was proceeded ex
parte, argues that the Will in question cannot be proved as per law as it is
not attested by two witnesses and therefore there is no need of remand, i.e
the Will shows that it is attested only by one witness Sh. D.P. Bhatia and
who was the father of Sh. Amit Bhatia who drafted the Will and put the
signatures accordingly as a draftsman only.
4. I cannot agree with the contention of the counsel for the review
petitioner, inasmuch as, it is perfectly possible that the drafter of the Will
RP 286/2015 in FAO 47/2012 Page 3 of 4
may also be a witness to the Will and a reading of the testimony of Sh. Amit
Bhatia, drafter of the Will nowhere shows that he was not an attesting
witness to the Will. His deposition only states that he had drafted the Will.
It is therefore in the peculiar facts of the present case, of the probate petition
having been filed by the sons who were the beneficiaries of the Will;
objections not being filed by any person other than the review petitioner or
not being perused by any person including the present review petitioner; the
aspect with respect to evidence of the second attesting witness being lacking
thus needing further evidence, hence by the order dated 12.3.2014, the
matter was remanded for fresh evidence. I do not think that any injustice is
caused by the order dated 12.3.2014, nor there is any illegality apparent on
the face of record.
5. Review petition is accordingly dismissed.
MAY 29, 2015 VALMIKI J. MEHTA, J.
ib
