Rajender Singh vs Gajinder Singh & Others

Sandeep Sharma,J.

1.Being aggrieved and dis-satisfied with the order dated 12.12.2017, passed by learned Senior Civil Judge, Chamba, District Chamba, whereby the

Court below dismissed the application under Section 151 of the Code of Civil Procedure (for short ‘CPC’) filed on behalf of applicant-plaintiff

for leading additional evidence, petitioner (hereinafter referred to as the ‘plaintiff’) has approached this Court in the instant proceedings.

Necessary facts, as emerged from the material available on record, are that the plaintiff filed a suit against the respondents-defendants (hereinafter

referred to as the ‘defendants’) for declaration to the effect that Uttmo Devi (deceased) mother of the plaintiff and defendant No.1, namely;

Gazinder Singh, who was owner in possession of the land detailed in the plaint, bequeathed her entire property in favour of the plaintiff vide registered

Will dated 23.08.1993 and mutation No.992 dated 15.06.2005, whereby defendant got suit land to the extent of half share mutated in his favour in

connivance with the revenue officials, is wrong, illegal, void and inoperative. Plaintiff also prayed that mutation No.992, dated 15.06.2005 and

subsequent entries in favour of the defendants may be declared as null and void. Apart from above, plaintiff also sought decree for permanent

prohibitory injunction restraining the defendants from interfering in possession of the plaintiffs in any manner and from taking forcible possession of the

suit land.

Defendant No.1, while contesting the claim of the plaintiff, as set up in the plaint, though admitted the factum with regard to execution of Will dated

23.08.1993 by late Uttmo Devi in favour of the plaintiff, but, claimed that the Will set up by the plaintiff was subsequently cancelled by late Uttmo

Devi by executing another Will dated 05.10.2003, whereby she bequeathed her entire property in favour of both; plaintiff and defendant No.1; in equal

shares.

During the pendency of trial, plaintiff filed an application under Sections 45 and 73 of the Indian Evidence Act, 1872, praying therein to send thumb

impression of late Utrtmo Devi on Will dated 23.08.1993, to an expert for comparing the same with thumb impression put on Will dated 05.10.2003.

Aforesaid application was rejected by the Court below, however, this Court vide order dated 21.3.2016 passed in CMPMO No.366 of 2015, set aside

the order dated 15.09.2014, passed by the learned Court below and ordered that the registered Will dated 23.08.1993 be requisitioned from the office

of Sub Registrar, Chamba and thereafter the same be sent to the Government Examiner of Questioned Documents to compare thumb impression of

Uttmo Devi on Wills dated 23.08.1993 and 05.10.2003.

Pursuant to the aforesaid direction passed by this Court, both the Wills, as referred hereinabove, were sent to CFSL, Delhi, who vide

communication dated 30.1.2017, submitted its report to the learned Court below. CFSL, Delhi, in the aforesaid opinion/report has reported that thumb

impression contained on Will dated 23.08.1993, does not match with the subsequent Will dated 05.10.2003.

Pursuant to receipt of aforesaid report submitted by CFSL, Delhi, plaintiff moved an application under Section 151 CPC before the Court below

seeking therein permission to lead additional evidence. Plaintiff averred in the application that the plaintiff earlier could not examine the witnesses to

the Will in dispute and he also wants to examine the expert, who compared both the Wills to prove the report in accordance with law.

Learned Court below, while dismissing the aforesaid application filed by the plaintiff, held that in order to prove the due execution of Will alleged to

have been executed by deceased Uttmo Devi in favour of the plaintiff, plaintiff was required to lead evidence in affirmative and as such, application at

this stage, cannot be allowed as it would amount to de novo trial, which is not permissible under law. Learned Court below also observed that since

report of CFSL, Delhi is per se admissible, plaintiff is not required to prove the same by examining the expert, who has given the report. In the

aforesaid background, petitioner-plaintiff, being aggrieved with order dated 12.12.2017, has approached this Court in the instant proceedings.

I have heard learned counsel for the parties and gone through the record.

It is quiet apparent from the record that defendant No.1, while contesting the suit of the plaintiff, has admitted the Will dated 23.08.1993 executed

by late Uttmo Devi, bequeathing thereby entire property in favour of the plaintiff, however, while doing so, defendant No.1 has set up a case that the

aforesaid Will was subsequently cancelled and another Will dated 05.10.2003 was executed by late Uttmo Devi, whereby she bequeathed her entire

property in favour of both sons i.e. plaintiff and defendant No.1. Since, in the case at hand, scribe, marginal witnesses and identifier had expired, an

application came to be filed on behalf of the plaintiff for leading secondary evidence. Learned trial Court vide order dated 14.07.2011, passed the

following order:- “defendant No.1 has raised contention that Will dated 23.08.1993 was later on cancelled by execution of subsequent Will dated

05.10.2003, therefore, bone of contention between the plaintiff and defendant No.1 is whether any Will subsequent to Will dated 23.08.1993 was

executed by late Uttmo Devi in favour of her both sons including defendant No.1, hence I am of the opinion that no formal proof of Will dated

23.08.1993 is acquired even though the original has been lost.â€​

Learned Court below vide aforesaid order held that since defendant No.1 has raised contention that Will dated 23.08.1993 was lateron cancelled

by execution of subsequent Will dated 05.10.2003, therefore, no formal proof of Will dated 23.08.1993 is required even though the original has been

lost. As noticed hereinabove, thumb impression contained on Wills dated 23.08.1993 and 05.10.2003 came to be examined/compared by Question

Document Expert, who in his report has categorically held that thumb impression contained on Will dated 23.08.1993 does not match with thumb

impression contained on Will dated 05.10.2003. After receipt of aforesaid report by CFSL, plaintiff moved an application seeking therein permission to

lead additional evidence to prove the due execution of Will executed by deceased Uttmo in his favour, which prayer was not accepted by the Court

below.

Having carefully perused observation made in order dated 14.07.2011, this Court finds considerable force in the arguments of learned Senior

Counsel representing the plaintiff, that in view of findings recorded in the order dated 14.07.2011, wherein learned Court below recorded that no

formal proof of Will dated 23.08.1993 is required even though the original has been lost and that in view of admission having been made by defendants

in their written statement with regard to execution of Will dated 23.08.1993, plaintiff remained under impression that he is not required to lead specific

evidence to prove the valid execution of the Will dated 23.08.1993. There is no quarrel as far as finding returned by the Court below that the report

submitted by CFSL, Delhi is perse admissible and as such it is not required to be proved by examining the expert, who has rendered this report, but,

this Court is not in agreement with the findings recorded by the Court below that in case plaintiff is permitted to lead additional evidence, as prayed in

the application, it would amount to de novo trial.

In the case at hand, as clearly emerged from averments contained in the application that scribe, marginal witnesses and identifier of the Will dated

23.08.1993, which is otherwise registered document, have passed away and in these circumstances, plaintiff could either prove valid execution of Will

dated 23.08.1993 by leading secondary evidence i.e. seeking direction to Sub Registrar to produce original Will or examine person, who can verify

signatures of scribe, marginal witnesses and identifier on the Will dated 23.08.1993. As has been noticed above, learned Court below, while

considering prayer made on behalf of the plaintiff for leading secondary evidence, specifically observed, rather returned a finding that “he is of the

opinion that in view of stand taken by the defendant, wherein he has virtually admitted the execution of Will dated 23.8.1993, no formal proof of Will

dated 23.8.1993 is required†and, as such, explanation rendered on account of plaintiff for not examining witnesses in support of valid execution of

Will appears to be plausible and Court below ought to have considered the same in its right perspective. Will set up by the plaintiff is a registered Will,

execution whereof has been admitted by defendant No.1 and, as such, Court below ought to have permitted plaintiff to lead additional evidence to

prove valid execution of Will in the interest of justice. Moreover, no prejudice would have been caused to the defendants because they would have got

an opportunity to cross-examine the witnesses, if any, examined by the plaintiff. Apart from above, defendants would have also got an opportunity to

lead evidence in rebuttal, if any. No doubt, evidence of both the parties have been closed and the matter is already fixed for arguments, but judgment

is yet to be pronounced and as such in the peculiar facts and circumstances, as have been taken note hereinabove, plaintiff ought have been afforded

an opportunity to lead additional evidence, at this stage, because it would also help the Court below to adjudicate the controversy interse parties in

most fair manner.

Consequently, in view of the above, the present petition is allowed. The impugned order dated 12.12.2017, passed by learned Senior Civil Judge,

Chamba, District Chamba is quashed and set aside and plaintiff is permitted to lead additional evidence, as prayed for in the application.

Mr.I.D. Bali, learned Senior Counsel, undertakes to cause appearance of witnesses named in the list of witnesses attached to the application on

11th June, 2018, on which date the learned Court below shall record the statements of witnesses, named in the list of witnesses, in support of valid

execution of Will.

Needless to say that opportunity to lead evidence in rebuttal, if required, would be afforded to the defendants. However, it is made clear that in

case the plaintiff fails to lead evidence on the aforesaid date, no more opportunity shall be afforded to him and case shall be decided on the basis of

material already available on record. It is further clarified that the plaintiff would only lead evidence in support of execution of Will dated 23.08.1993

and not qua the report of CFSL, Delhi, which is otherwise perse admissible.

Consequently, in view of the detailed discussion made hereinabove, this petition is disposed of in the aforesaid terms. Interim order, if any, is

vacated. All miscellaneous applications are disposed of. Copy dasti.