Delhi High Court
Aban A Dittia vs The State (Nct Of Delhi) & Ors. on 22 September, 2016
$~15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: September 22, 2016
+ FAO 185/2016 & C.M.No.15420/2016
ABAN A DITTIA ..... Appellant
Through: Mr. Bhaskar Subramanian,
Advocate
versus
THE STATE (NCT OF DELHI) & ORS. .....Respondents
Through: Mr. Aspi M. Dittia, respondent
No.2 in person
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% (ORAL)
Impugned order of 12th February, 2016 refuses to grant probate in
respect of Will of 5th December, 1991 alongwith Codicil of 8th July, 2006
by holding that appellant has failed to prove the Will as no attesting
witness to the last Will and testament of 5th December, 1991 has been got
examined. It is also noted in the impugned order that the two witnesses to
the aforesaid last Will are not traceable and in such a situation, resort to
Section 69 of the Evidence Act ought to have been made to get the Will
proved by scribe in reference to the attestation made by the attesting
witnesses on the typed Will.
Learned counsel for appellant submits that respondent No.1 is a
FAO 185/2016 Page 1
pro forma party.
Respondent No.2 appears in person and submits that he endorses
the 'No Objection Certificate' already tendered by him. Respondent No.3
is unserved.
Respondent No.2 submits that he is elder brother of respondent
No.3 and on his instructions, it is submitted that even respondent No.3
has already tendered 'No Objection Certificate' in respect of the Will in
question. It is also submitted by respondent No.2 that a joint statement
has been made by him as well as respondent No.3 to prove the 'No
Objection Certificate' before the trial court.
At the outset, learned counsel for appellant submits that after
passing of the impugned order, with much efforts, the two attesting
witnesses have been traced out and now the additional evidence of
attesting witness-Mrs. Mini Sawhney is to be got recorded. The factual
background of this case is already noted in the impugned order and needs
no reiteration as the Will in question is uncontested.
Learned counsel for appellant submits that due to the change of
address of attesting witness, she could not be traced out and now after
much efforts, her whereabouts are known and indeed her evidence is
essential for the just decision of this case and so, the application for
additional evidence i.e. C.M. 15420/2016, deserves to be allowed.
Upon hearing and on perusal of impugned order and the material
on record, I find that there was no lack of due diligence on the part of
appellant and the evidence of the attesting witnesses to the Will is
essential for the just decision of this case. Accordingly, the application
for additional evidence i.e. C.M. 15420/2016 is allowed. Impugned order
FAO 185/2016 Page 2
is set aside and the case is remanded back to trial court. Appellant is
permitted to lead additional evidence of attesting witness-Mrs. Mini
Sawhney and for this purpose, trial court shall afford two effective
opportunities to appellant to get aforesaid attesting witness examined and
thereafter, it shall pronounce the order after affording an opportunity of
hearing.
With aforesaid direction, this appeal and the application are
disposed of.
(SUNIL GAUR)
JUDGE
SEPTEMBER 22, 2016
s
FAO 185/2016 Page 3
