Delhi High Court
Naveen Chander Kapur vs State & Ors on 22 October, 2021
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Pronounced on: 22nd October, 2021
+ TEST.CAS. 3/2011
NAVEEN CHANDER KAPUR ..... Petitioner
Through: Mr. Dhiraj Sachdeva, Advocate.
versus
STATE & ORS .....Respondents
Through: Mr. Peeyoosh Kalra & Mr. Sanad
K. Jha, Advocates for appellants /
applicants in O.A.22/2021
CORAM:
HON'BLE MS. JUSTICE ASHA MENON
ORDER
O.A.22/2021 [Chamber Appeal by the respondents/appellants under
Rule 5, Chapter-II of the Delhi High Court (original side) Rules, 2018
read with Section 151 CPC against the order dated 17th March, 2021
passed by Joint Registrar (Judicial)] in TEST.CAS. 3/2011
1. This Chamber Appeal has been preferred by the appellants being
the contesting respondents against the order dated 17th March, 2021
passed by the learned Joint Registrar permitting the attesting witness to
be examined prior to the petitioner.
2. Mr. Peeyoosh Kalra, learned counsel for the appellants/respondents
submitted that under Order XVIII Rule 3A CPC, the party had to appear
as a witness before any other witness on his behalf was examined. It was
submitted that no application had been moved by the
respondent/petitioner before the learned Joint Registrar to explain why he
wished to examine the attesting witness before he himself was examined.
It is also the contention of the learned counsel for the
appellants/respondents that even the impugned order is silent as to the
reason why the court was allowing the respondent/petitioner to examine
the attesting witness before examining himself. Reliance has been placed
on the decision of the Supreme Court in Niranjan Umeshchandra Joshi
v. Mrudula Jyoti Rao, (2006) 13 SCC 433 and the decision of this court
in Jagdish Prasad v. State, 2015 SCC OnLine Del 14461 to contend that
Section 68 of the Indian Evidence Act, 1872 deals with the mode of proof
of a Will but does not set out the procedure for examination of the
witnesses, which was governed by Order XVIII Rule 3A CPC. It was,
therefore, submitted that the judgments in Walter D'Souza v. Anita
D'Souza, 2014 SCC OnLine Bom 1671 and Harsh Vardhan Lodha v.
Ajay Kumar Newar, [order dated 18th July, 2019 in TS No. 6/2004], cited
by the respondent/petitioner, had no bearing on the matter.
3. Learned counsel for the respondents/appellants further submitted
that under Section 295 of the Indian Succession Act, 1925, the petition
was liable to be treated as a civil suit and governed by the provisions of
the CPC and therefore, Order XVIII Rule 3A would be applicable to the
present matter.
4. On the other hand, Mr. Dhiraj Sachdeva, learned counsel for the
respondent/petitioner, submitted that the discretion vests with the court to
allow, for reasons to be recorded, another witness to be examined before
the party examined himself as a witness in his case. It was further
contended that the testamentary case was not strictly a suit. Secondly, the
Will was to be proved only by the attesting witness and the examination
of the attesting witness prior to the respondent/petitioner would not be a
case where loopholes were being sought to be filled by a party subsequent
to the examination of his witness. Reliance has again been placed on
Walter (supra) and Harshwardhan (supra). Learned counsel for the
respondent/petitioner also submitted that it was not for the first time that
the attesting witness had come to the court and for almost two years,
during which time the said witness had attended court, not once had the
appellants/respondents raised such an objection. Furthermore, it was
submitted that the Rules provide for a Chamber Appeal from the order of
the Joint Registrar, but it had to be filed within fifteen days, whereas the
present appeal has been filed only on 7th October, 2021.
5. Having considered the rival submissions and the cited case law,
this Court concludes that the learned Joint Registrar rightly allowed the
petitioner to examine the attesting witness prior to his own examination.
Section 295 of the Indian Succession Act, 1925, provides that a contested
testamentary action is to be dealt with, as nearly as may be, as a civil suit.
Granting that the CPC could be made applicable to the contested
testamentary proceedings, as in the present case, it still leaves the court
with the discretion to allow the party to be examined subsequent to the
examination of his own witnesses. To say that the learned Joint Registrar
has not given reasons, is incorrect, as the learned Joint Registrar has
concluded that the prayer of the petitioner was allowed in view of
Sections 68, 69 and 71 of the Indian Evidence Act, 1872, which provide
that where a Will is a sought to be proved, its execution must be proved
first. Thus, it is clear that it is on account of the fact that the mode of
proof of a Will, even as conceded by the learned counsel for the
appellants/respondents, is the examination of the attesting witness and no
other, so long as the attesting witness is available, the examination of
such attesting witness would not cause any prejudice to the
respondents/appellants. Section 68 is a special provision, which makes it
necessary for the attesting witness to be examined for proving the
document, namely, the Will. Once that Will is brought on record in
evidence, the appellants/respondents would still retain their right to
question the respondent/petitioner on the validity of the execution of the
same, particularly on the existence of the suspicious circumstances.
6. The Chamber Appeal is accordingly dismissed.
TEST.CAS. 3/2011
7. List before the Joint Registrar on the date already fixed, for further
proceedings.
8. The order be uploaded on the website forthwith.
(ASHA MENON)
JUDGE
OCTOBER 22, 2021
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