Satbir vs Rameshwar

Gurmeet Singh Sandhawalia, J.—The present revision petition filed under Article 227 of the Constitution of India by the petitioner/defendant is directed against the order of the Addl. District Judge, Bhiwani dated 25.11.2011 whereby the application for leading additional evidence has been rejected.

The reasoning given by the Lower Appellate Court is that the evidence was in the knowledge of the appellant and the Sub Registrar not being an attesting witness of the will but being only the registering authority was not necessary witness to prove the will in question. The second ground was that the appellant could not be allowed to fill up the lacuna in the case by way of application filed under Order 41 Rule 27 CPC.

The suit for declaration was filed by respondent no.1-Rameshwar wherein he sought his right in the land in dispute on the strength of the parties being sons of Bhim Singh. Challenge was made to the registered will dated 17.4.2002 allegedly executed by Bhim Singh who died on 23.1.2006 in favour of the present petitioner on the ground of fraud and misrepresentation and that the property was ancestral and plaintiff had a birth right in the same.

The suit was contested by the present petitioner on the ground that the plaintiff was living separately and land was not ancestral and received in family settlement and the plaintiff never served his father and mother who had been living separately. The plea taken was that the registered will was duly executed by Bhim Singh in full senses and in the presence of witnesses. The will in question was attested by Attar Singh who appeared as DW-3 and Jai Lal, Numberdar who had died. The deed writer was never produced in evidence and on account of the attesting witness DW-3 not deposing that testator had signed on the will in his presence and after knowing its contents, the trial Court went on to hold that the will in question did not stand proved.

The submission of the counsel for the defendants/petitioners that once the question of fraud was being raised the onus was upon the plaintiff which was rejected by holding that the burden of proof would be upon the propounder of the will. Accordingly, the suit land was held to be inherited by way of natural succession and the registered will was set aside.

The appeal was filed by the present petitioner wherein the application for additional evidence under Order 41 Rule 27 CPC was filed by taking the plea that the will was registered by Om Parkash Godara, Sub Registrar who attested the registered will at Bawani Khera. The said officer could not be examined on behalf of the appellant/defendant who wanted to prove the registration of the will and the applicant had come to know that he was now posted at Tosham and therefore, his evidence as a witness to the appellant was very much material and would help the Court to arrive at a just conclusion. No issue had been framed by the Court to prove the execution and registration of the will and now onus of the same was shifted upon the appellant.

The application was resisted by filing the reply that it was malafide and an attempt to delay the disposal of the appeal and there was neither any issue with regard to execution of the will and burden of proof was upon the appellant. The production of the witness was not necessary for the just decision of the case. The ingredients of Order 41 Rule 27 CPC were not fulfilled and no additional evidence was necessary for just decision of the appeal and the Sub Registrar was neither attesting witness nor the scribe of the will. The application as noticed above was dismissed by the Lower Appellate Court on the ground that the evidence sought to be produced was in the knowledge of the appellant and it was not just and necessary for the decision of the case.

Counsel for the petitioner has vehemently submitted that the will was registered and due to the fault of the counsel since the affidavit was not in proper form whereby examination-in-chief had been tendered, the parties should not be prejudiced. Accordingly, it is submitted that justice oriented approach should be taken rather than the strict rigour of law. Accordingly, it is submitted that the Sub Registrar would show under which circumstances the will was registered.

Counsel for the respondent on the other hand has submitted that the provisions of Order 41 Rule 27 CPC cannot be used to fill up the lacuna and once the attesting witness had not deposed as per the provisions of Section 63 of the Indian Evidence Act, 1872 and Section 68 of the Indian Succession Act, 1925 the Lower Appellate Court was well justified in rejecting the application.

A perusal of the facts in question would go on to show that the dispute is inter se the brothers regarding the property which was to go to them on the basis of death of their father. The registered will is subject matter of challenge inter se the parties. The plaintiff had pleaded that the will was executed by way of fraud as Bhim Singh was in jail and had come out and during interim period the will was executed whereas case of the appellant is that he was looking after his father and had also contributed towards costs of criminal litigation and the will was a genuine document which was registered. The trial Court did not frame any specific issue regarding the validity of the will, whether the same was executed in suspicious circumstances even though the plaintiff had set up the challenge to the will on various grounds. The will is solemn document which normally is to be proved by the propounder. It is not necessary to be registered but in case where it has been, it would stand on a higher pedestal than an unregistered will and it is the duty of the Court to see whether the will had been validly executed. The petitioner had produced the attesting witness who was alive and in an effort to prove the will. The evidence of the said witness had been placed on record which of course the Appellate Court will examine in true prospective since the decision of the trial Court is also subject matter of appeal yet and therefore, it is not for this Court to opine upon the said deposition of the attesting witness namely Attar Singh DW-3.

The provisions of Order 41 Rule 27 CPC provide apart from the evidence which was not in the knowledge of the parties and the evidence which is necessary for the just decision of the case in any form oral or documentary can be produced in order to enable the Court to pronounce judgment and for any other substantial cause. In the present case, the factum of the registered will having been executed under what circumstances and whether it was executed by fraud or willingly by the testator while on bail could well be deposed by the Sub Registrar who is now sought to be examined. The purpose of Order 41 Rule 27 CPC is that the Court can render complete justice inter se the parties and to ensure that substantial cause which is a term of wide discretion for the purpose to achieve the ends of justice can be resorted to by the Appellate Court which in the present case it has failed to exercise its power by virtue of additional evidence. No new case is being set up by the appellant and it was only necessary for the Court to decide the issue after taking into consideration the deposition of the said Sub Registrar who is now sought to be examined.

Under Section 60 of the Registration Act, 1908 it is the duty of the registering officer that the documents which have been registered is done by the proper person and is who competent to act. Accordingly, this Court is of the opinion that the Appellate Court has failed to exercise jurisdiction vested in it by law since the Sub Registrar could validly depose about the execution of the will by Bhim Singh in his presence and endorsement which is made that the will was read over and there is a presumption of truth to the registered document. The evidence of the Sub Registrar in such circumstances in the opinion of this Court would be just and necessary to settle the dispute between the brothers.

The other ground on which the present revision petition is to be allowed is that it is settled principle of law that application for additional evidence is to be heard and decided at the time of hearing of main appeal so that the Appellate Court can apply its mind to the issue in controversy in detail which the Lower Appellate Court failed to do. Reliance can be placed upon the judgment of the Apex Court in State of Rajasthan Vs. T. Sahani and Others, . The relevant observations reads as under:-

It may be pointed out that this Court as long back as in 1963 in K. Venkataramiah Vs. A. Seetharama Reddy and Others, , pointed out the scope of unamended provision of Order 41, Rule 27(c) that though there might well be cases where even though the Court found that it was able to pronounce the judgment on the state of the record as it was, and so, it could not be required additional evidence to enable it to pronounce the judgment, it still considered that in the interest of justice something which remained obscure should be filled up so that it could pronounce its judgment in a more satisfactory manner. This is entirely for the Court to consider at the time of hearing of the appeal on merits whether looking into the documents which are sought to be filed as additional evidence, need be looked into to pronounce its judgment in a more satisfactory manner. If that be so, it is always open to be Court to look into the documents and for that purpose amended provision of Order 41, Rule 27(b), C.P.C. can be invoked. So the application under Order 41, Rule 27 should have been decided along with the appeal. Had the court found the documents necessary to pronounce the judgment in the appeal in a more satisfactory manner it would have allowed the same; if not, the same would have been dismissed at that stage. But taking a view on the application before hearing of the appeal, in our view would be inappropriate. Further, the reason given for the dismissal of the applications is untenable. The order under challenge cannot, therefore, be sustained. it is accordingly set aside. The application is restored to its file. The High Court will now consider the appeal and the application and decide the matter afresh in accordance with law.

Accordingly keeping in mind the said discussion, the present petition is allowed. The order dated 25.11.2011 is set aside and the application for additional evidence filed by the petitioner is allowed. The Lower Appellate Court shall take necessary steps for summoning of witness in question.