Delhi High Court
Prabha Devi vs State & Ors on 30 April, 2025
Author: Dharmesh Sharma
Bench: Dharmesh Sharma
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 30th April, 2025
+ FAO 165/2012, CM APPL. 8796/2022, CM APPL. 8797/2022, CM
APPL. 8798/2022 & CM APPL. 17973/2024
PRABHA DEVI .....Appellant
Through: Mr. Munish Kumar Singh,
Adv.
versus
STATE & ORS .....Respondents
Through: Mr. Manashwy Jha, Adv. for R1.
Mr. Vidit Gupta, Mr. Navin Bainsla
& Mr. Rajesh Bansal, Advs. for R2.
CORAM:
HON'BLE MR. JUSTICE DHARMESH SHARMA
DHARMESH SHARMA, J. (ORAL)
1. This application is moved on behalf of the applicant/appellant under
Order XXVI Rule 10A read with Section 151 of the Code of Civil
Procedure, 1908 ["CPC"] read with Section 39 of the Bhartiya Sakshya
Adhiniyam, 2023 ["BSA"] seeking directions of this Court for appointment
of an expert (writing expert/forensic expert/document examiner) and to
submit his report before this Court.
2. Notice of the present application has been served upon the
respondents. However, no reply is filed as yet nor any reply is required.
3. Having heard the learned counsel for the applicant/appellant and on
perusal of the record, I find that the present application is bereft of any
merits.
KUMAR VATS
Signing Date:06.05.2025
12:03:25
4. In a nutshell, the applicant/appellant has preferred an appeal under
Section 299 of Indian Succession Act, 1925 ["ISA"] thereby assailing
impugned Judgment dated 30.11.2021 passed by learned Additional
District Judge-02, South District, Saket Courts, New Delhi ["Probate
Court"] whereby the learned Probate Court had granted Probate in respect
of last and final Will dated 30.03.1996 left behind by Smt. Laxmi Devi in
favour of respondent No.2/Smt. Geeta, who is her niece.
5. It appears that during the course of long trial, the respondent
No.2/Smt. Geeta (petitioner before the learned Probate Court) examined
herself as PW-1 and also an attesting witness to the Will, namely Shri
Moolchand as PW-2. Suffice it to state that although several objections
were taken by the applicant/appellant disputing the execution and thereby
genuineness of Will in question, the learned Probate Court considered the
testimony of attesting witness besides certain writings, which were made
by the deceased-testatrix in her diary, wherein she had exhibited her love
and affection for the respondent No.2/Smt. Geeta and finding that the Will
was executed by the testatrix in her sound disposing state of mind, the
objections to the petition under Section 299 of the ISA, were dismissed.
6. Learned counsel for the applicant/appellant has urged that Will in
question has been typed in Hindi script and the Will is fabricated inasmuch
as it was typed after obtaining signatures of the deceased-testatrix on some
blank papers. It was urged that if the document expert is examined in the
present matter, he would be able to clarify if signatures on the Will were
put by deceased-testatrix after it was typewritten or before it was
typewritten.
KUMAR VATS
Signing Date:06.05.2025
12:03:25
7. On a perusal of testimony of witness examined in the present matter,
this Court is of the view that no useful purpose would be served by
examining any expert witness. Without expressing any opinion on the
merits of the case, much time has since elapsed from the date of filing of
the petition, that was instituted on 15.01.2009. Even the present appeal is
pending since 17.04.2012. The present application is now purportedly
moved on 14.04.2023. At this juncture, it would be expedient to reproduce
the provisions of Order XLI Rule 27, which provides as follows:
"Order 41 Rule 27. Production of Additional Evidence in
Appellate Court.
(1) The parties to an appeal shall not be entitled to produce
additional evidence, whether oral or documentary, in the
Appellate Court, But if-
(a) the Court from whose decree the appeal is preferred
has refused to admit evidence which ought to have been
admitted, or
(aa) the party seeking to produce additional evidence,
establishes that notwithstanding the exercise of due
diligence, such evidence was not within his knowledge or
could not, after the exercise of due diligence, be produced
by him at the time when the decree appealed against was
passed, or
(b) the Appellate Court requires any document to be
produced or any witness to be examined to enable it to
pronounce judgment, or for any other substantial
cause, the Appellate Court may allow such evidence or
document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an
Appellate Court, the Court shall record the reason for its
admission."
8. A bare perusal of the aforesaid provision would show none of the
conditions for allowing additional evidence are made out in the present
matter. The applicant/appellant had lot of time to seek examination of such
an expert during trial and even after instituting the present appeal. Now,
allowing this application at this stage would result in enormous wastage of
KUMAR VATS
Signing Date:06.05.2025
12:03:25
time and efforts.
9. In view of the foregoing reasons, the present application is
dismissed.
10. A copy of this order be sent to the learned Probate Court for
information and records.
11. Re-notify on 11.07.2025.
DHARMESH SHARMA, J.
APRIL 30, 2025/Sadiq
KUMAR VATS
Signing Date:06.05.2025
12:03:25
