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2015 DIGILAW 1492 (DEL)

Anil Kumar Gupta v. State

2015-05-29

VALMIKI J.MEHTA

body2015
JUDGMENT : Valmiki J. Mehta, J. Review Petition No. 286/2015 1. By this review petition filed under Section 114 of the Code of Civil Procedure, 1908, review is sought of the order of this Court dated 12.3.2014 which disposed of the first appeal by remanding the matter for additional evidence. This order dated 12.3.2014 reads as under:- “1. This first appeal is filed under Section 299 and 384 of the Indian Succession Act against the order of the probate court dated 13.10.2011 which has dismissed the probate petition bearing No. 28/2009 seeking probate with respect to the Will dated 13.9.2004 of late Sh. Sunder Lal Gupta. 2. The probate court in para-14 of its judgment has given the following conclusions for dismissing the petition. “14. It is, in the instant case, thus apparent that the Will was not executed as per the provisions of Indian Succession Act, 1925 as it was not attested by two witnesses, and therefore, cannot fall into the scope and ambit of legally executed Will notwithstanding the fact that the testimony has gone un-rebutted and the respondent has not come forward to argue the case. Accordingly, the issue No. 1 is decided against the petitioner and in favour of the respondent.” 3. Considering the fact that in the present case no objections were raised on behalf of the objectors and most of the objectors were ex parte, I deem it fit to exercise my powers under Order 41 Rule 27, 23(A) and Section 165 of the Indian Evidence Act, 1872 to permit the appellants/petitioners to lead additional evidence before the probate court in its petition seeking probate of the Will dated 13.9.2004 of late Sh. Sunder Lal Gupta. 4. In view of the above, the petition is allowed and the matter is remanded under Order 41 Rule 27, 23(A) CPC and the petitioner will be allowed to lead additional evidence. 5. Parties to appear before the District & Sessions Judge (North) Tis Hazari Courts, Delhi on 24th April, 2014 and the District and Sessions Judge will mark the probate petition for further proceedings to an appropriate in accordance with law.” 2. The main petition before the trial court was a probate petition by two sons Sh. Anil Kumar Gupta and Sh. Ajit Kumar Gupta of the deceased Sh. Sunder Lal Gupta. Late Sh. Sunder Lal Gupta had three sons namely Sh. Anil Kumar Gupta, Sh. The main petition before the trial court was a probate petition by two sons Sh. Anil Kumar Gupta and Sh. Ajit Kumar Gupta of the deceased Sh. Sunder Lal Gupta. Late Sh. Sunder Lal Gupta had three sons namely Sh. Anil Kumar Gupta, Sh. Sunil Kumar Gupta and Sh. Ajit Kumar Gupta. The Will in question dated 13.9.2004 disinherited the second son Sh. Sunil Kumar Gupta by observing that Sh. Sunil Kumar Gupta has already separated from the family and which Sh. Sunil Kumar Gupta is the review petitioner before this Court. Sh. Sunil Kumar Gupta admittedly after filing of objections did not appear in the trial court, and was proceeded ex parte. It is also noted that no other person other than the review petitioner/Sh. Sunil Kumar Gupta filed any objections. It is in these circumstances that one more opportunity was given to the petitioner to lead additional evidence by the impugned order of this Court dated 12.3.2014. 3. Learned counsel for the review petitioner/Sh. Sunil Kumar Gupta, and who after filing objections in the trial court was proceeded ex parte, argues that the Will in question cannot be proved as per law as it is not attested by two witnesses and therefore there is no need of remand, i.e. the Will shows that it is attested only by one witness Sh. D.P. Bhatia and who was the father of Sh. Amit Bhatia who drafted the Will and put the signatures accordingly as a draftsman only. 4. I cannot agree with the contention of the counsel for the review petitioner, inasmuch as, it is perfectly possible that the drafter of the Will may also be a witness to the Will and a reading of the testimony of Sh. Amit Bhatia, drafter of the Will nowhere shows that he was not an attesting witness to the Will. His deposition only states that he had drafted the Will. It is therefore in the peculiar facts of the present case, of the probate petition having been filed by the sons who were the beneficiaries of the Will; objections not being filed by any person other than the review petitioner or not being perused by any person including the present review petitioner; the aspect with respect to evidence of the second attesting witness being lacking thus needing further evidence, hence by the order dated 12.3.2014, the matter was remanded for fresh evidence. I do not think that any injustice is caused by the order dated 12.3.2014, nor there is any illegality apparent on the face of record. 5. Review petition is accordingly dismissed.