Punjab-Haryana High Court
Indu Paintal vs General Public And Others on 19 August, 2010
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
F.A.O. No.5413 of 2003 (O&M) -1-
...
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
F.A.O. No.5413 of 2003 (O&M)
Date of Decision : 19.08.2010
Indu Paintal
......Appellant
Vs.
General Public and others
......Respondents
CORAM : HON'BLE MR. JUSTICE RAKESH KUMAR JAIN
Present: Mr. Rajesh Sood, Advocate,
for the appellant.
None for the respondents.
RAKESH KUMAR JAIN, J. (ORAL)
This appeal is directed against the order dated 18.09.2003 passed by learned Additional District Judge-I, Panchkula, dismissing an application filed under Section 276 of the Indian Succession Act, 1925 (for short "The Act") for grant of probate of the will dated 29.05.1998, executed by the deceased K.S. Paintal in favour of the appellant.
In brief, the facts of the case are that appellant filed a petition under Section 276 of the Act seeking probate of Will dated 29.05.1998 (Ex. PW3/A) in which she has stated that her marriage with deceased-K.S. Paintal (who was Managing Director of M/s Hassles India (P) Ltd., 71, Paschimi Marg, Vasant Vihar, New Delhi) was performed on 10.07.1991. After some time, due to some misunderstanding, she obtained an ex-parte decree of divorce dated F.A.O. No.5413 of 2003 (O&M) -2- ...
25.07.1992. But with the intervention of members of the family, a compromise was effected between the parties and both were re- married on 31.05.1994 and since then they were living together. It is alleged that on 29.05.1998, the testator executed a Will (Ex.PW3/A) in her favour and died on 04.01.2001 at Delhi.
No one had appeared on behalf of the respondents before the Court below, resultantly, they were proceeded against ex- parte.
In support of her case, the appellant had examined herself as PW-1, Mohinder Wadhwa as PW-2 and Sudhir Kumar, Clerk from the office of Sub-Registrar, Kapashera, New Delhi as PW-
3. None of these witnesses were cross-examined as no one had appeared on behalf of the respondents. The Will was alleged to have been attested by Shyam Wadhwa and Jagdish Singh.
Admittedly, attesting witness-Shyam Wadhwa had expired on 31.03.2003 and Jagdish Singh-another attesting witness has not been examined. PW-2-Mohinder Wadhwa was examined in order to prove the signatures of her husband on the Will and PW-3- Sudhir Kumar, Clerk was examined in order to depose about the Will on the basis of record which is registered. Learned Court below dismissed the application filed under Section 276 of the Act on the ground that the petitioner has failed to prove the Will in terms of Section 68 of the Evidence Act as none of the attesting witness was examined. It is observed that even if Shyam Wadhwa, one of the attesting witnesses, had expired, the appellant could have examined another attesting witness-Jagdish Singh. It was also observed that F.A.O. No.5413 of 2003 (O&M) -3- ...
there is no explanation as to why the said witness could not be examined.
Learned Trial Court dismissed the application also on the ground that since deceased was residing in Delhi and had neither any fixed place of abode at Panchkula nor any movable or immoveable property within the jurisdiction of the Court. The petition before the Panchkula Court was not found to be maintainable in terms of Section 276 (2) (a) and (3) of the Act.
Against the order passed by the Court below, the appellant has filed this appeal along with an application under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure 1908 (for short "CPC") in which permission was sought to lead additional evidence for placing on record certificate dated 08.05.2003 of the neighbour of Jagdish Singh who had stated that House No.396 belonging to Jagdish Singh is vacant. It is submitted by learned counsel for the appellant that despite best efforts, the appellant is not able to trace out the whereabout of other attesting witness-Jagdish Singh who could be examined to satisfy the provisions of Section 68 of the Indian Evidence Act. Learned counsel for the appellant has prayed that order of the Trial Court be set aside and the case be remanded back to the learned Trial Court to decide it again considering the unavailability of Jagdish Singh in terms of certificate dated 08.05.2003 and allow the appellant to prove the Will on the basis of evidence available on record.
I have heard learned counsel for the appellant and carefully perused the record.
F.A.O. No.5413 of 2003 (O&M) -4-
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In the case of probate, the appellant has to prove the Will in terms of provisions of Section 68 of the Indian Evidence Act, 1872 and also the jurisdiction of the Court in terms of Section 276 (2) of the Act. In order to prove a Will, Section 68 of the Evidence Act provides that If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. It further requires that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908, unless its execution by the person by whom it purports to have been executed has specifically denied.
In the present case, the Will is although registered but in terms of provisions of Section 68 of the Evidence Act, it is required to be proved by at least by one of the attesting witness. The word "attestation" is provided under Section 3 of the Transfer of Property Act, 1882 which provides that "attestation", in relation to an instrument means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of F.A.O. No.5413 of 2003 (O&M) -5- ...
such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary.
In the present case, the appellant has produced PW-2 Mohinder Wadhwa, wife of deceased-Shyam Wadhwa, who could only depose that she identified the signatures of her husband on the Will. But as per Section 68 of the Indian Evidence Act the Will is to be executed by the testator in the presence of the attesting witnesses who would see him putting his signatures. In this case, the appellant could not produce any document to show that the other attesting witness, namely, Jagdish Singh is not alive and has only filed an application for permission to produce the additional evidence by way of certificate dated 08.05.2003 of neighbour of the said witness to the effect that he is not available at the given address. Thus, there is no evidence that the other witness, namely, Jagdish Singh is not alive. Moreover, learned counsel for the appellant has not cited any law in support of his case to persuade this Court to take a view that in case of non availability of the second attesting witness, the Court can consider the evidence led by the appellant or decide the case on the basis of the evidence brought on record.
The important fact in this case is that the deceased- testator was married earlier with one Tara Kochar and had two sons from the said wedlock. If the Will is not proved, death of the testator would be deemed to be intestate and all the legal heirs would be entitled to his property as per the Section 8 of the Hindu Succession F.A.O. No.5413 of 2003 (O&M) -6- ...
Act, 1956. Moreover, the deceased-testator had no fixed place of abode at Panchkula nor he had any property movable or immovable within the jurisdiction of this Court, therefore, the Panchkula Court had no jurisdiction.
In view of above discussion, I do not find any merit in this appeal and the same is accordingly dismissed with no costs.
(Rakesh Kumar Jain) Judge 19.08.2010 neetu