Research › Search › Judgment

Delhi High Court · body

2014 DIGILAW 1195 (DEL)

Jagdish Parshad v. State

2014-04-15

VALMIKI J.MEHTA

body2014
Judgment : Valmiki J. Mehta, J. (Oral) 1. This first appeal is filed under Section 299 of the Indian Succession Act, 1925 against the judgment of the probate court dated 2.12.2011. The probate court below has dismissed the probate petition on the ground that the Will has not been validly proved as per the deposition of the attesting witness. 2. The relevant observations made by the court below are contained in para 19 of the impugned judgment and the same reads as under:- “19. Coming to the present matter, PW2 Sh. R.D.Kashyap was examined as one of the attesting witness. He has led his evidence by way of affidavit Ex.P-2. Here it is necessary to reproduce, the relevant portion of his affidavit which is as under:- 3. That Smt. Shanti Devi made will dated 31.7.1991 which was last will and testament. The testatorix was in sound state of disposing mind and was in good physical health at the time of making Will, the said Will was duly registered with the Sub Registrar, Delhi, and the same is exhibited as PW2/1 and the Testatorix put her thumb impression on each page of the same at point A on each pages, in my presence and I also signed the same in her presence on last page i.e page no.4 at point B. The Will is true and correct and the Testatorix bequeathed her property in favour of the petitioner, as only the petitioner was looking after and caring for her. From mere reading of the said portion of utmost importance of examination-in-chief of this witness clearly reflects that this witness has not uttered even a single word on score of presence of the second attesting witness on spot at the time when the testator has put her thumb impression etc. The detailed cross examination of this witness does not help the petitioner in proving the fact that the testator has put her thumb impression on the Will in presence of two witnesses. No doubt, the Will could be proved by examining only one of the attesting witness as per Section 68 of the Indian Evidence Act. But the compliance of Section 63 of Indian Succession Act cannot be ignored and it is mandatory that the presence of the second attesting witness at the time of signing of the Will by testator must come on record. But the compliance of Section 63 of Indian Succession Act cannot be ignored and it is mandatory that the presence of the second attesting witness at the time of signing of the Will by testator must come on record. In the absence of any such evidence the Will cannot be termed to be fully proved or genuine. The findings of the aforesaid judgment are fully applicable to the facts of instant case and this Court has no hitch to reach at conclusion that the Will has not been proved as per Law. The issue stands decided in favour of the respondent and against the plaintiff.” 3. In my opinion, the present is a fit case for exercise of powers by this Court under Section 165 of the Indian Evidence Act, 1872 read with Order 41 Rule 27 CPC, more so because the failure on the part of the appellant/petitioner is a technical defect. I may also note that mistakes do take place in the conduct of the cases by Advocates and it is not right that valuable rights are lost on account of formal inadequacy in deposition with regard to proof of the Will. 4. In my opinion, the present case is also a fit case for this Court to suo moto exercise powers under Order 41 Rule 27 CPC so as to do complete justice in the facts of the present case. 5. In view of the above, the impugned judgment of the probate court dated 2.12.2011 is set aside and the appellant is given liberty to lead fresh evidence in support of proof of the registered Will dated 31.7.1991 executed by the deceased Smt. Shanti Devi and who was the owner of the property bearing house no. 2726-A, Chhatta Girdhar Lal, Gali Arya Samaj, Bazar Sita Ram, Delhi-110006. 6. Parties are directed to appear before the District and Sessions Judge (West), Tis Hazari Courts, Delhi on 16.7.2014. District and Sessions Judge will mark the probate petition to a competent court for disposal in accordance with law and the observations made in the present order. Parties are left to bear their own costs. 7. Since the appellant-petitioner is not represented at the disposal of this appeal, the trial court will, before proceeding with the matter, issue notices to the appellant/petitioner as also his counsel in this Court as well as before the said court.