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2014 DIGILAW 509 (RAJ)

Nisha Jain v. Public in General

2014-02-19

ALOK SHARMA

body2014
JUDGMENT 1. - This civil misc. appeal has been filed under section 299 of the Indian Succession Act, 1925 (hereinafter 'the Act of 1925') against the order dated 31.1.2011 passed by the District & Sessions Judge, Kota (here-in-after 'the trial court') dismissing the application of the applicant appellant (here-in-after 'the applicant') under section 276 of the Act of 1925 for grant of probate of a will dated 5.2.1994 stated to have been executed by one Sushil Kumar. 2. The facts of the case are that the applicant took proceedings under section 276 of the Act of 1925 before the District Judge, Kota for grant of probate of a will dated 5.2.1994. It was stated that the testator Sushil Kumar s/o Bhanwar Lal resident of House No. 846, Shastri Nagar, Kota had executed a will in favour of the applicant duly attested by AW2 Rajendra Kumar and by Kamklakar Sharma in his presence. It was submitted that Sushil Kumar had purchased the property bearing No. 220B, Sector-B, Talvandi Scheme, Kota through a registered sale deed dated 10.4.1989, was in possession thereof as its sole owner and therefore, was entitled in law to execute a will in regard thereto. It was submitted that Sushil Kumar died on 24.1.1996 consequent to which the will became operational where-under the property in issue House No. 220B, Sector-B, Talvandi Scheme, Kota devolved on the applicant under the will. It was prayed that in these circumstances the will dated 5.2.1994 executed by Sushil Kumar qua the suit property be probated. 3. Notices in accordance with the provisions of law were duly issued by the court below on the application under section 276 of the Act of 1925 before it. This included publication in the daily newspaper 'Dainik Bhaskar' on 25.3.2009. No objections to the grant of probate of the will dated 5.2.1994 as sought by the applicant was filed or received by the court below and the probate proceedings remained uncontested. 4. The evidence of the applicant AW1-Smt. Nisha Jain and AW2 Rajendra Kumar Jain- one of the attesting witness of the will dated 5.2.1994 was recorded. No objections to the grant of probate of the will dated 5.2.1994 as sought by the applicant was filed or received by the court below and the probate proceedings remained uncontested. 4. The evidence of the applicant AW1-Smt. Nisha Jain and AW2 Rajendra Kumar Jain- one of the attesting witness of the will dated 5.2.1994 was recorded. The learned court below however dismissed the application for probate on the ground that the evidence of AW2 Rajendra Kumar Jain -attesting witness merely was that " mDr olh;rukek LoxhZ; lqf'ky dqekj us esjs lkeus vkysf[kr fd;k Fkk olh;rukesa ij esjs gLrk{kj ekStwn gSa " And he had further only stated that " izn'kZ&1 olh;rukek esjs lkeus vkysf[kr gqvk FkkA izn'kZ&1 ij A to B crkSj xokg esjs egLrk{kj gS " According to the learned District Judge the aforesaid evidence did not tantamount to the attesting witness stating that the testator had signed the will in the presence of the attesting witness. Accordingly the requirement of section 63(c) of the Succession Act, 1925 and 68 of the Indian Evidence Act, 1872 was not satisfied held the learned District Judge and therefore proceeded to dismiss the application for grant of probate of the will dated 5.2.1994 5. Mr. Ajeet Bhandari, Sr. Counsel assisted by Mr. Kinshuk Jain, counsel appearing for the appellant has submitted that the learned court below has taken a very narrow view of the evidence in the matter more so in the context of the fact that in-spite of notice to the public at large the grant of probate in respect of will dated 5.2.1994 was not opposed as no objections were received. It is submitted that even otherwise the learned District Judge has misread the evidence of attesting witness AW2 Rajendra Kumar Jain in holding that his statement before the court as also his affidavit in evidence did not tantamount to proving that the will was signed by the testator Sushil Kumar in his presence. Counsel submitted that the very fact that AW2 Rajendra Kumar Jain stated that " izn'kZ&1 olh;rukek esjs lkeus vkysf[kr gqvk FkkA izn'kZ&1 ij A to B crkSj xokg esjs egLrk{kj gS " entails an assertion that the will was signed by Sushil Kumar in his presence for there can be no valid will without the testator's signature. Counsel submitted that the very fact that AW2 Rajendra Kumar Jain stated that " izn'kZ&1 olh;rukek esjs lkeus vkysf[kr gqvk FkkA izn'kZ&1 ij A to B crkSj xokg esjs egLrk{kj gS " entails an assertion that the will was signed by Sushil Kumar in his presence for there can be no valid will without the testator's signature. Counsel has drawn the attention of this Court to Ex.1 i.e the will dated 5.2.1994 to point out that the contents of will are typed and thus as of necessity the word " vkysf[kr " as stated by AW-2 in his testimony before the court would refer to the factum of the signing of the will by the testator. He submitted that even otherwise when AW2 Rajendra Kumar Jain states that the will was executed by the testator it means that it was signed by him for without the testator's signatures a will cannot be conceived in law. Counsel therefore submitted that this Court in the over-all obtaining facts of the case should reasonably construe the evidence of AW2 Rajendra Kumar Jain- entailing an assertion that the will in issue was signed by the testator in the presence of the attesting witness. 6. In the course of the hearing of this appeal an application has been filed under Order 41, Rule 27 CPC read with section 283 of the Act of 1925. It has been submitted that in the event the learned District Judge was not satisfied with the extent of the proof of the will by applicant he sought to have resorted to section 283 of the Act of 1925 and required more evidence to be produced for his satisfaction. Stating that as the appellate court has the same powers as the original court it has been submitted that power under section 283 of the Act of 1925 be exercised by this Court. For this purpose an affidavit of AW-2 Rajendra Kumar Jain has been filed with the prayer that it be taken on record and the appeal be disposed of considering the said affidavit in evidence. 7. None has appeared to oppose the appeal in-spite of the notice of the appeal being published in the Dainik Bhaskar, Jaipur Edition dated 13.12.2011 of the hearing of this misc. appeal. 8. I have heard the counsel for the applicant and perused the record. 9. 7. None has appeared to oppose the appeal in-spite of the notice of the appeal being published in the Dainik Bhaskar, Jaipur Edition dated 13.12.2011 of the hearing of this misc. appeal. 8. I have heard the counsel for the applicant and perused the record. 9. In my considered opinion the affidavit of AW2- Rajendra Kumar Jain as filed before this Court along-with the application under Order 41, Rule 27 CPC cannot be considered by the appellate court in view of the fact that the power under section 283 of the Act of 1925 is a discretionary power vested with the District Judge inter-alia to require further evidence of due execution of the will and to examine the applicant in person seeking probate on oath. In these circumstances rather than this Court as the appellate court decides this misc. appeal on the basis of the affidavit in evidence filed by the applicant, the case deserves to be remitted to the learned District Judge, Kota for proceeding further with the matter by resort of section 283 of the Act of 1925. 10. Consequently, this misc. appeal is allowed and the order dated 31.1.2011 passed by learned District & Sessions Judge, Kota is set aside. The matter is remanded to the learned District & Sessions Judge, Kota with the aforesaid observations.Appeal Allowed. *******