Delhi High Court

Dinesh Aggarwal & Ors vs State & Ors on 25 February, 2019

    * IN THE HIGH COURT OF DELHI AT NEW DELHI
    %                             Date of decision: 25th February, 2019

+    FAO(OS) 19/2019, CM Nos. 4034-4036/2019
     DINESH AGGARWAL & ORS
                                                                  ..... Appellant
                         Through:      Mr. Rajat Joseph, Adv.

                         versus

     STATE & ORS
                                                                ..... Respondent
                         Through:

     CORAM:
     HON'BLE THE CHIEF JUSTICE
     HON'BLE MR. JUSTICE V. KAMESWAR RAO

    V. KAMESWAR RAO, J. (ORAL)

CM No. 4035/2019 Exemption allowed, subject to all just exceptions. Application stands disposed of.

CM No. 4034/2019 (for condonation of 56 days delay in filing the appeal)

For the reasons stated in the application, the same is allowed

and the delay of 56 days in filing the appeal stands condoned.

Application stands disposed of.

FAO(OS) 19/2019

1. This appeal has been filed by the appellants challenging the

order of the learned Single Judge dated September 04, 2018 passed

in Test. Case No. 95/2014 whereby the learned Single Judge has

dismissed a petition filed under Section 276 of the Indian

Succession Act, 1925 in respect of Will dated February 19, 2009.

2. The appellants herein are the brothers of the deceased Late

Bishan Chand Aggarwal and claimed to be the executors of the said

Will. It is their case that as per the Will, the deceased has

bequeathed 40% of his share to one of his brothers Dinesh

Aggarwal and 15% each to his other brothers Mukesh Kumar

Aggarwal, Rakesh Kumar Aggarwal, Umesh Aggarwal and Amit

Aggarwal in the property bearing No.G-92, Preet Nagar

Cooperative Housing Building Society, Colony knows as Preet

Vihar, Delhi-92. The Will is stated to have been registered on

February 19, 2009 and is stated to have been witnessed by Mahesh

Chand Jain and Chandra Prakash Srivastava.

3. Respondent No.1 is the State, respondents No.2 to 6 are the

wife, two sons and two daughters of the deceased, who have filed

objections to the grant of probate. The learned Single Judge framed

the following issues:-

(i) Whether the Will propounded by the petitioner dated 19.2.2009 is the last validly executed Will of late Shri

Bishan Chand Aggarwal in his sound disposing mind? OPP.

(ii) Whether the Will has not been attested by two witnesses as mandatorily required in law? If so, whether the alleged Will can be acted upon?

(iii) Whether late Shri Bishan Chand Aggarwal as not competent and empowered to execute the Will, as alleged in the objection petition? OPR.

(iv) Relief

4. The record keeper from the Sub Registrar's Office appeared

as PW-2 and Mahesh Chand-the attesting witness appeared as PW-

2(A) and appellant No.1 appeared as PW-1 whereas Deepak

Aggarwal appeared as RW-1. The Death certificate was exhibited as

Ex. PW-1/1 and certified copy of Will dated February 19, 2009 was

exhibited as Ex.PW-1/2.

5. The first and foremost issue, which was decided by the

learned Single Judge is the effect of non-production of the original

Will. The learned Judge came to the conclusion that from a perusal

of the affidavit in evidence and the cross-examination of the

witnesses, it is seen that there is no mention whatsoever as to the

circumstances under which the original is stated to have been lost or

destroyed. She relied upon the judgment of the Supreme Court in

the case of Benga Behera and Ors. v Braja Kishore Nanda and

Ors. AIR 2007 SC 1975 to hold that it has to be established on

record that the original Will could not be produced, as it was lost,

misplaced or destroyed beyond reasonable doubt as the certified

copy of a Will would constitute secondary evidence under Sections

63 and 65 of the Indian Evidence Act, 1872. Unless it is proved that

the primary evidence is destroyed or lost, no secondary evidence

can be accepted by the Court.

6. The learned Single Judge has held that the petitioner must

fail on this sole ground. The learned Single Judge also proceeds to

examine the merits of the matter as well. It is her conclusion that

the Will has not been proved in accordance with law as the only

attesting witness Mahesh Chand does not exhibit the Will.

According to her, he neither identifies the signatures of the deceased

on the Will, nor does he say that the second witness signed in his

presence. According to her, he also does not state that the Will was

read over to the deceased and was understood by him. According to

her, the witness does not disclose, in what manner, he knew the

testator and what was his mental condition to execute a Will. She

also rejects the Will as the deceased did not mention the existence

of his wife and his children. According to her, this is an extremely

suspicious circumstance in the context of a Will. She also notes the

litigation between the parties. In conclusion, she held that the loss

of the original Will cannot be deduced by implication, by a Court.

Loss or destruction of an original document, especially a Will has to

be pleaded and proved in accordance with law. Even the certified

copy of the Will could not be proved in accordance with law as the

attesting witness who appeared did not identify the signature of the

testator or the document itself. According to her, the Will is

surrounded by suspicious circumstances.

7. The learned Counsel for the appellants concede to the

position that the original Will was not produced. He concedes to

the position that the appellants could not state or prove that the

original Will has been lost or destroyed. If that be so, the fact

remains that the original Will was not produced by the appellants

before the learned Single Judge nor did they make out a case that

the original Will was not available, having been lost or destroyed.

In the absence of original Will, certified copy of the Will could not

be relied upon. That apart, it is a finding of fact by the learned

Single Judge that the attesting witness could not even prove the

certified copy of the Will, as he could not identify the signatures of

the testator. Even otherwise, it is not the case of the appellant that

the finding is perverse.

8. We may note here that the Supreme Court has recently dealt

with the effect of Sections 63 and 65 of the Evidence Act in the case

of Rakesh Mohindra vs Anita Beri & Ors. (2016) 16 SCC 483, as

follows:

17. The pre-conditions for leading secondary evidence are that such original documents could not be produced by the party relied upon such documents in spite of best efforts, unable to produce the same which is beyond their control. The party sought to produce secondary evidence must establish for the non-production of primary evidence. Unless, it is established that the original documents is lost or destroyed or is being deliberately withheld by the party in respect of that document sought to be used, secondary evidence in respect of that document cannot accepted.

22. It is well settled that if a party wishes to lead secondary evidence, the Court is obliged to examine the probative value of the document produced in the Court or their contents and decide the question of admissibility of a document in secondary evidence. At the same time, the party has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. It is equally well settled that neither mere admission of a document in evidence amounts to its proof nor mere making of an exhibit of a document dispense

with its proof, which is otherwise required to be done in accordance with law. (emphasis supplied)

9. From a reading of the above, it becomes clear that for the

appellant to have lead and relied upon secondary evidence (here, a

certified copy of the original will), they should have clearly laid

down and established the circumstances under which the original is

said to have been lost. Without having done so, the right to lead

secondary evidence thereon, would not arise.

10. In view of the finding of fact and the learned counsel for the

appellants conceding that the appellants could not state and prove

that the original Will had been lost or destroyed, we find that the

conclusion arrived at by the learned Single Judge is justified and

needs no interference. The appeal is dismissed. No costs.

CM No. 4036/2019 (for stay) Dismissed as infructuous.