MOHINDER SINGH BHATIA Vs. STATE
LAWS(DLH)-2007-5-287
HIGH COURT OF DELHI
Decided on May 02,2007

Mohinder Singh Bhatia Appellant
VERSUS
STATE Respondents

JUDGEMENT

J.M.MALIK,J. - (1.) IN this appeal the appellant has called into question the order dated 1st April, 2003, passed by the learned Additional District Judge, wherein the probate was granted in favour of Avtar Singh Bhatia, the respondent No. 2 herein. The facts of this case are these. Deceased Labh Singh Bhatia had executed a Will on 11th May, 1967, wherein he bequeathed shop No. 49, Defence Colony, New Delhi in favour of his eldest son, Shri Mohinder Singh Bhatia, the appellant in this appeal. The Will was registered on 16th May, 1967. Thereafter, the deceased Labh Singh Bhatia had executed another Will dated 24th February, 1986, which was also duly registered on the same very day, wherein the earlier Will dated 11th May, 1967, was revoked and superseded. According to the second Will, the deceased Labh Singh Bhatia bequeathed property No. 1, National Park, New Delhi in favour of Avtar Singh Bhatia, the respondent No. 2 herein. All the legal heirs except Mohinder Singh Bhatia gave no objection to the above-said second Will. Mohinder Singh Bhatia objected that since the respondent, Avtar Singh Bhatia, was not named as executor of the Will, therefore, the petition for grant of probate was not maintainable. He also denied having any knowledge of the earlier Will dated 11th May, 1967, bequeathing shop No. 49, Defence Colony in his favour. On the contrary, he stated that the said shop was purchased by his wife Smt. Swarn Kaur vide registered sale deed dated 14th May, 1973. He also stated that the Will dated 24th February, 1986 was not executed by his father, Labh Singh, who expired on 25th August, 1993.
(2.) I have heard counsel for the parties. The entire case swirls around the testimony of PW-1, Ratan Singh Bhatia, who is one of the attesting witnesses of the Will dated 24th February, 1986, which was proved on record as-Exhibit P-1. This is an indisputable fact that Ratan Singh Bhatia expired before his testimony could be concluded. The record reveals that the examination-in-chief of Ratan Singh Bhatia was recorded on 20th March, 1995. On that day, proxy counsel got the case adjourned for cross-examination. Ratan Singh Bhatia was partly cross-examined on 27th November, 1997. Thereafter, he expired on 4th May, 1999. Learned counsel for the appellant vehemently argued that the evidence of Ratan Singh Bhatia cannot be read in evidence. In order to buttress his case, he has cited two authorities reported in Janki Narain v. Narain Namdev, 2003(1) RCR(Civil) 409 : 2003 I AD (SC) 74 : [2003(2) SCC 91]and Ripen Kumar v. Department of Customs [2000 VII AD (Delhi) 862]. In the first authority, it is discussed that one of the attesting witnesses must be examined in view of the provisions contained in Section 63(C) of the Indian Succession Act and Section 68 of the Indian Evidence Act. It also discusses Section 71 of the Indian. Evidence Act which provides an exception to the rule enunciated in Section 68 of the Indian Evidence Act. The second authority pertains to a criminal case. In that case it was held that under the Evidence Act the word "evidence" includes examination-in-chief and cross-examination both. Part statement does not attain the status of evidence. In view of this situation of law, the statement of Ratan Singh Bhatia cannot be read in evidence.
(3.) DURING the course of arguments, counsel for the respondents urged that the respondents should be given another opportunity to produce more evidence in view of the fact that the statement of Ratan Singh Bhatia cannot be read in evidence. He explained that there is a statement of Smt. Shakun Chaitanya, who claimed that she was also present before the Sub Registrar when the Will in question was registered. In addition, the record reveals that the Sub Registrar, who had signed the Will, can be an important witness in this regard. Thirdly, Shri Jitender Kumar Jain, the learned counsel for the respondents, who is still pursuing the case of the respondents is also an important witness in this case, being the scribe of the Will and lastly, there are many other modes incorporated in the Indian Evidence Act to prove the signatures of the testator.;


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