RSA/227/2023 of ANGOORI DEVI Vs JAGDISH

*IN THE HIGH COURT OF DELHI AT NEW DELHI

+RSA227/2023&CMAPPL.62146/2023,CMAPPL.62147/2023

ANGOORI DEVI

..... AppellantThrough:Mr. Sandeep Khatri and Ms.Shivani Negi, Advs.

versus

JAGDISH

Through:None

..... Respondent

CORAM:HON'BLE MR. JUSTICE C. HARI SHANKAR

J U M N T (O R L)

%19.01.2024

1.This is second appeal under Section 100 of the Code of CivilProcedure 1908 (CPC).

2.The present appellant was the plaintiff before the learned trialcourt in CS SCJ 704/2021 and the appellant in the first appeal, beingRCA DJ 01/2023.

3.In the plaint instituted by her, the appellant claimed to be theowner and in possession of the property No. 44/XII (New) and 73 &75 (Old) admeasuring about 45 ½ sq. yards out of the total propertyadmeasuring 214 sq. yds., SP Zone, Malkaganj, Delhi-110007.

4.The said property was stated to have been purchased by theappellant’s father-in-law Karan Singh under registered Sale Deed.Karan Singh was stated to have executed Will in the appellant’sfavour.Admittedly, the appellant was claiming titular rights inrespect of the suit property under the said Will.

5.The case of the appellant was that, on the request of BhagwatiDevi, the mother of the respondent and distant relative of theappellant, Karan Singh, he had allowed Bhagwati Devi to use aportion admeasuring 7 sq. yards (hereinafter “the suit property”) in theaforenoted Malkaganj property as licensee. The appellant contendedthat, consequent on the demise of Bhagwati Devi, the suit propertywas in the occupation and was being used by the respondent, Jagdish.The appellant claimed to be in requirement of the suit property as herchildren had grown up.

6.Accordingly, the plaint averred that, in July 2020, the appellantrequested the respondent to vacate the suit property and, on his failingto do so, issued notice to the respondent on 23 October 2020,reiterating the request and cancelling the license whereby BhagwatiDevi had been permitted to stay in the suit property by Karan Singh.

7.On the respondent continuing to occupy the suit property, theappellant instituted CS SCJ 704/2021 against the respondent, seekingejectment of the respondent from the suit property as well as seekingrecovery of the suit property.

8.The suit was dismissed by the learned Senior Civil Judge(learned SCJ) by judgment dated 25 November 2022. The learned SCJobserved that the appellant had failed to establish any titular right inrespect of the suit property as the appellant was claiming title on thebasis of Will by Karan Singh, which the appellant was unable toprove in accordance with Section 68[1]of the Indian Evidence Act asthe appellant had not been able to produce any of the attestingwitnesses to the Will.

9.Once the Will was not proved, the learned SCJ held that, as theappellant’s husband was alive, she could not claim any rights by wayof succession to the suit property. Additionally, on the ground that thesuit property could not be identified from the site plan which had beenfiled by the appellant, the learned SCJ dismissed the suit.

10.The appellant appealed against the aforenoted decision of thelearned SCJ to the learned Additional District Judge (the learned ADJ)by way of RCA DJ 01/2023.

11.By the impugned judgment dated 8 May 2023, the learned ADJhas essentially reiterated the findings of the learned SCJ to the effectthat the suit property could not be identified from the site plan andthat, even otherwise, the Will had not been proved in accordance with

1 68.Proof of execution of document required by law to be attested. – If document is required bylaw to be attested, it shall not be used as evidence until one attesting witness at least has been called for thepurpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Courtand capable of giving evidence:law to be attested, it shall not be used as evidence until one attesting witness at least has been called for thepurpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Courtand capable of giving evidence:

Provided that it shall not be necessary to call an attesting witness in proof of the execution of anydocument, not being will, which has been registered in accordance with the provisions of the IndianRegistration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have beenexecuted is specifically denied.document, not being will, which has been registered in accordance with the provisions of the IndianRegistration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have beenexecuted is specifically denied.

Signature Not Verified

the Section 68 of The Evidence Act and Section 63[2]of the IndianSuccession Act.

12.Insofar as the GPA on the basis of which the appellant wasadditionally claiming rights over the suit property was concerned, thelearned ADJ has held that, consequent on the death of the executor ofthe GPA, the GPA did not continue to have any effect.

13.Before me, Mr. Sandeep Khatri, learned Counsel for theappellant, has essentially urged the contention that the learned ADJfailed to take note of application filed by the appellant under OrderXLI Rule 27 of the CPC, seeking to place on record additionalevidence.

14.Had the learned ADJ permitted the appellant to do so, it issubmitted that the appellant would have possibly been able to provethe Will.

15.The suit instituted by the appellant was one based on title. Theappellant has, all along, been asserting titular rights in the suit

2 63.Execution of unprivileged wills. – Every testator, not being soldier employed in an expedition orengaged in actual warfare, or an airman so employed or engaged, or mariner at sea, shall execute his willaccording to the following rules:—engaged in actual warfare, or an airman so employed or engaged, or mariner at sea, shall execute his willaccording to the following rules:—

(a)The testator shall sign or shall affix his marks to the will, or it shall be signed by someother person in his presence and by his direction.other person in his presence and by his direction.

(b)The signature or mark of the testator, or the signature of the person signing for him, shallbe so placed that it shall appear that it was intended thereby to give effect to the writing as will.(c)The will shall be attested by two or more witnesses, each of whom has seen the testatorsign or affix his mark to the will or has seen some other person sign the will, in the presence and bythe direction of the testator, or has received from the testator personal acknowledgment of hissignature or mark, or of the signature of such other person; and each of the witnesses shall sign thewill in the presence of the testator, but it shall not be necessary that more than one witness bepresent at the same time, and no particular form of attestation shall be necessary.be so placed that it shall appear that it was intended thereby to give effect to the writing as will.(c)The will shall be attested by two or more witnesses, each of whom has seen the testatorsign or affix his mark to the will or has seen some other person sign the will, in the presence and bythe direction of the testator, or has received from the testator personal acknowledgment of hissignature or mark, or of the signature of such other person; and each of the witnesses shall sign thewill in the presence of the testator, but it shall not be necessary that more than one witness bepresent at the same time, and no particular form of attestation shall be necessary.

property on the basis of the Will of Karan Singh.The Will wasunprivileged, within the meaning of Section 63 of the IndianSuccession Act. Clause (c) of Section 63, therefore, required it to beattested by at least two attesting witnesses. In Janki Narayan Bhoirv. Narayan Namdeo Kadam[3], this requirement has been held to bemandatory.Section 68 of the Evidence Act, therefore, required atleast one attesting witness to be called in the witness box before theWill could be used in evidence.[4]

16.The concurrent finding of the learned SCJ and the learned ADJthat the appellant had not succeeded in proving the Will on the basisof which he was claiming title in the suit property is, therefore,factually and legally correct, and does not call for any interference.

17.Though the impugned orders of the learned SCJ and the learnedADJ as they stand do not, therefore, give rise to any substantialquestion of law which could merit interference in second appeal, Ihave, for the purposes of satisfying myself regarding the contention ofMr. Khatri, also gone through the application filed by the appellantbefore the learned ADJ under Order XLI Rule 27 of the CPC.

18.The application may be reproduced, in extenso, thus:

(IN THE COURT OF DISTRICT JUDGE: (CENTRAL) THC:

DELHIRCA NO. /2023

3 (2003) 2 SCC 91

4 Ref. Kashibai v. Parwatibai, (1995) 6 SCC 213, Murthy v. C. Saradambal, (2022) 3 SCC 209

Signature Not Verified

Smt. Angoori Devi

...Appellant

Versus

Sh. Jagdish.

. . Respondent

APPLICATIONONBEHALFOFAPPELLANTUNDERORDER XLI RULE 27 CPC READ WITH SECTION 151 CPCFOR ALLOWING THE APPLICANT TO LEAD ADDITIONALEVIDENCE

MOST RESPECTFULLY SHWOETH:

1. That the applicant/ appellant field the above appeal before thisHon’ble Court. The contents of the said appeal may kindly be readas part and parcel of this application as the same has not beenrepeated here for the sake of brevity.

2.That the case of the applicant is that the plaintiff wasactively working in respect of the suit property as GPA during thelife time of the registered owner Shri Karan Singh and after thedeath of Shri Karan Singh as beneficiary of the will duly executedby the deceased Karan Singh in favour of the appellant, withoutany objection from any corner as well the appellant was paying thehouse tax of the property in suit and her name was assessed in theassessment record of the MCD and the appellant was declared asowner in the said assessment record of the MCD and she wastreated as owner in respect of the property in suit and have alsofiled documents Exbt. PW-1/3 property tax receipt dt.21.01.2019and Exbt. PW-1/8 tax assessment by MCD and Exbt. PW-1/9 theGPA by Karan Singh in favour of Karan Singh and Exbt. PW-1/10the will dt.11.02.1998 in favour of appellant.

3.That the keeping in view all the documents abovementioned the ownership of the appellant is not disputed but theobjection of the Ld. Lower court is that the will was not proved asper law and hence the suit of the plaintiff was dismissed. TheHon’ble trial court was also confused with regard to the site plan asto how the portion of property is separated from the main portionof the property by lane.

4.That this is fit case in which this Hon'ble court may allowthe application of the applicant in respect of leading of additionalevidence, if required and this Hon'ble court may deem fit in thepresent circumstances, may be allowed.

5.Thatifthepresentapplicationifnotallowed,theapplicant/appellant shall suffer an irreparable losses and injurywhich can never be compensated in terms of money.Under the above mentioned facts and circumstances it is thereforemost respectfully prayed that this Hon’ble Court may kindly bepleased to allow the application of the appellant/applicant in theinterest of justice and the applicant shall be allow to lead additionalevidence with regard to the proving of will as per law and theclarification of site plan, if required.

Applicant/appellant

DelhiThroughDt.30.12.2022Counsel

19.In the entire application, there is no averment that the appellantwas in position to produce the attesting witnesses to the Will aswitnesses so as to be able to prove the Will.

20.In fact, in para 2 of the application, the appellant has reiteratedthat she was claiming right over the suit property as she had beenworking in the suit property as the GPA of Karan Singh during hislifetime and as the beneficiary of Karan Singh’s Will, which was inher favour, without any objection from anyone.

21.Thereafter, the appellant has placed reliance on house taxreceipts, property tax receipts and MCD documents in order to claimownership over the suit property.

22.Inasmuch as the appellant’s husband was alive, the only groundon which the appellant could have obtained any titular right over the

suit property was under the Will executed by Karan Singh.

23.Though the prayer in the application filed by the appellantunder Order XLI Rule 27 of the CPC was that she be permitted to leadadditional evidence with regard to proving the Will as per law, there isno reference, in the application, to any evidence that the appellant wasin position to lead. In fact, Ground (F) in the first appeal filed by theappellant before the learned ADJ specifically stated thus:

“Because the Ld. Lower Court failed to consider the fact that theplaintiff failed to prove the will as per law by producing thewitness of the will before the Hon'ble court but keeping in view thecircumstances of facts, as mentioned above in preceding grounds,the ownership of the plaintiff is un-disputed and without anyobjection from any corner for that the plaintiff reserve her right toprove the will as per law by means of additional evidence, ifrequired.”

(Emphasis supplied)

24.There was, therefore, clear admission, by the appellant, beforethe learned ADJ, that she was not in position to prove the Will.

25.The case that the appellant urged before the learned ADJ wasthat, though she was not in position to prove the Will by producingattesting witnesses, the circumstances of the case and the fact that theownership of the appellant was undisputed made out case forinterference.

26.The averment that the ownership of the appellant wasundisputed only stems from the fact the respondent was proceed exparte before the learned SCJ. That does not do away with the

requirement of the appellant having to prove the case set out in theplaint in the first instance. The plaint was one based on title. Theappellant was seeking to eject the respondent from the suit property byclaiming titular right in respect thereof.

27.There are concurrent findings of fact that the appellant hadbeen unable to prove her title over the suit property. Even before me,Mr. Khatri’s argument on the aspect of title is predicated on the Willof Karan Singh. Apart from the fact that there was an admission inGround (F) in the first appeal before the learned ADJ that theappellant was not in position to prove the Will, there is no materialon record, on the basis of which the Will could be said to be dulyproved.Section 63 of the Indian Succession Act and Section 68 ofthe Evidence Act categorically require the attesting witness to Willto be produced for Will to be duly proved.

28.An appeal under Section 100 of the CPC lies only on substantialquestions of law.Para 24(ii) of the judgment in Hero Vinoth v.Seshammal[5]holds that “substantial question of law” can be said toarise in the following two circumstances:

“A question of law having material bearing on the decision of thecase (that is, question, answer to which affects the rights ofparties to the suit) will be substantial question of law, if it is notcovered by any specific provisions of law or settled legal principleemerging from binding precedents, and, involves debatable legalissue. substantial question of law will also arise in contrarysituation, where the legal position is clear, either on account ofexpress provisions of law or binding precedents, but the courtbelow has decided the matter, either ignoring or acting contrary to

such legal principle.”

29.No substantial question of law, within the meaning of eithercircumstance, arises in the present case. No debatable question of lawexists. The impugned decisions cannot be said to be contrary to anysettled legal principle.

30.Accordingly, this appeal is dismissed.

JANUARY 19, 2024dsn

C. HARI SHANKAR, J.

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