Delhi District Court
Smt Satwanti vs Smt.Om Pati on 20 November, 2019
IN THE COURT OF SH HARGURVARINDER SINGH
JAGGI, ADDL. DISTRICT JUDGE-02, SOUTH-WEST
DISTRICT, DWARKA COURTS, DELHI
RCA No. 35/2018
CNR No.: DLSW010090532018
IN THE MATTER OF:
1. Smt Satwanti
W/o Sh. Rajbir Singh
R/o V.P.O. Dhansa
New Delhi ...Appellant / Defendant
Versus
1. Smt.Om Pati
D/o Late Shiv Sahai
W/o Sh Satpal
R/o House No. 1214-A/21
Gali No.9R, Prem Nagar, Rohtak
Haryana ...Respondent No. 1 / Defendant No. 1
2. Smt Hakmo
D/o Late Shiv Sahai
W/o Jai Pal
R/o VPO Rajlu Garhi, District Sonepat
Haryana ...Respondent No. 2 / Defendant No. 2
3. Krishna D/o Late Shiv Sahai
W/o Sh Rajan
R/o VPO Katlupur, District Sonepat
Haryana ...Respondent No. 3 / Defendant No. 3
Page No. 1/42
4. Smt Danwanti
D/o Late Shiv Sahai
W/o Sh. Mahabir Singh
R/o VPO Lalakana'
PO Golaharh, District BHiwani
Haryana ...Respondent No. 4 / Defendant No. 4
5. Smt Ishwanti
D/o Late Shiv Sahai
W/o Sh Nortan
R/o VPO Bhagwatipur, District Rohtak
Haryana ...Respondent No. 5 / Defendant No. 5
Date of filing of application(s): 24.04.2018
Date of order reserved: 30.10.2019
Date of pronouncement of order: 19.11.2019
JUDGMENT
1. This is a first appeal preferred by the appellant/defendant, namely, Satwanti (hereinafter "appellant") against a judgment and decree dated 29.01.2018 (hereinafter "impugned judgment") passed by the Learned Addl. Senior Civil Judge, South West District, Dwarka Courts, Delhi (hereinafter "trial court") in a suit titled as Ompati & Ors. v. Satwanti - Civil Suit No. 26234/2016 (hereinafter "suit"). The appellant also moved an application seeking stay of the operation and effect of the impugned judgment and decree along with the appeal and an application under Order XLI, Rule 27 of the Code of Civil Page No. 2/42 Procedure, 1908 (hereinafter "CPC") seeking leave of the court to lead additional evidence.
2. The trial court by its judgment decreed the suit for declaration and permanent injunction preferred by the plaintiffs/respondents, namely, Om Pati (respondent No.1/plaintiff No.1), Hakmi (respondent No.2/plaintiff No.2), Krishna (respondent No.3/plaintiff No.3), Dhanwati (respondent No.4/plaintiff No.4), and Ishwanti (respondent No.5/plaintiff No.5). The trial court declared the will dated 12.10.2011, as null and void and not binding upon the respondents/plaintiffs. The trial court in its judgment also passed a permanent injunction against the appellant/defendant, whereby restraining her from creating any third party interest in the suit property i.e. Khasra No. 323/3 (1-2) in extended lal dora situated at village Dhansa, Delhi (hereinafter "suit property").
3. For the sake of convenience and clarification the parties are also referred to and by their status, position before the trial court.
4. The facts of the case in a nutshell are that the appellant/defendant and respondents/plaintiffs are full blood sisters and daughters of Shiv Sahai and Bharpai. Shiv Sahai not only predeceased Bharpai but also died intestate. Bharpai died on 28.02.2012. Post the demise of Bharpai, the respondents/plaintiffs filed an application seeking mutation of the suit property before the concerned SDM/Revenue Authority, Najafgarh, Delhi in favour of all the legal heirs viz., daughters of Bharpai and Shiv Sahai on the Page No. 3/42 premise that Bharpai died intestate. During the pendency of the mutation proceedings, the appellant/defendant filed a copy of the will dated 15.06.1999 and staked claim to the suit property, as the same had been bequeathed to her by her mother. The appellant/defendant filed a probate petition titled as Satvanti v. State - PC No. 28/2013 before the South West District, Dwarka Courts, Delhi on the basis of will dated 15.06.1999. Pursuant to receiving notices, the respondents/plaintiffs herein preferred their objections in the aforesaid probate case. The appellant/defendant herein on 18.03.2014 submitted before the probate court that she found a new will dated 12.10.2011 of her mother in her box and she may be permitted to withdraw the probate case with liberty to file a fresh petition. The probate court by order dated 18.03.2014 dismissed the said probate case as withdrawn with liberty to file a fresh petition. Until the filing of the suit by the respondents/plaintiffs herein, the appellant/defendant did not file any fresh probate petition propounding the will dated 12.10.2011. The respondents/plaintiffs on being aggrieved and apprehensive by the appellant/defendant using the forged and fabricated will dated 12.10.2011, as a genuine will to be that of their mother on 22.08.2014 preferred the suit for declaration and permanent injunction before the trial court.
5. The appellant/defendant on aggrieved by the impugned judgment and decreed passed by the trial in favour of the respondents/ Page No. 4/42 plaintiffs and against the appellant/defendant has assailed the same on the following grounds:
(a) trial court passed the impugned judgment on the basis of surmises and conjectures without applying its judicious mind.
(b) the impugned judgment is wrong, illegally and contrary to the facts of the case.
(c) trial court committed an error of law and facts by decreeing the suit preferred by the respondents/plaintiffs.
(d) trial court failed to appreciate that the trial court committed an error of law and facts by not relying upon the documents filed by the appellant/defendant along with her written statement.
(e) trial court committed a serious error of law by not considering the judgements and pronouncements relied upon by the defendant/appellant on the issues involved for adjudication before the trial court.
(f) the impugned judgment is bad in law and on facts of the case, as the same has been passed by the trial court without applying judicious mind.
(g) trial court erred by not considering that plaintiff/defendant(sic) does not prove her case, as the plaintiff did not call the witness to prove his(sic) case. The burden to prove the case was on the plaintiff and the plaintiff cannot take benefit of other's wrong and the plaintiffs did not disprove the will dated 12.10.2011.
The trial court erred by basing its judgment on the presumption Page No. 5/42 that late Bharpai Devi made two wills and with the witnesses being different. The trial court failed to appreciate that there is no bar in making two wills and no such requirement in law that two separate wills must have the same attesting witnesses.
(h) the impugned judgment passed by the trial court is against the constitutional and statutory provisions of law and the same cannot be sustained and is liable to be set aside.
6. Ms. Saroj Bala, learned counsel for the appellant/defendant and Mr. Shaminder Kadian, learned counsel for the respondents/plaintiffs advanced their arguments.
7. Ms. Saroj Bala, learned counsel for the appellant submitted that the trial court's judgment is perverse not only in the eyes of law but also on facts and the same is bound to be set aside by this court.
8. The learned counsel for the appellant submitted that the parties are not strangers and are full blood sisters and other than the suit for declaration and permanent injunction from which the present appeal emanates, the parties are contesting other legal proceedings with regard to other properties.
9. The learned counsel for the appellant further submitted that the mother of the parties during her lifetime had moved an application for mutation, as her name was not reflected in the revenue entries. The mother of the parties, namely, Bharpai died on 28.02.2012. The learned counsel for the appellant further submitted that the reason for Page No. 6/42 two wills is that there was an error in mutation entries, however, both the wills are in favour of the appellant/defendant.
10. The learned counsel for the appellant/defendant further submitted that an application under Order XLI, Rule 27, CPC, has been moved by the appellant/defendant seeking leave of the court to lead additional evidence, as the previous counsel of the appellant/defendant before the trial court mislead the appellant/defendant and the appellant/defendant could not lead adequate evidence before the trial court. The learned counsel for the appellant/defendant further submitted that grave prejudice would be caused to the appellant/defendant, if her application seeking permission to lead additional evidence is not allowed. The learned counsel further submitted that a valid right of inheritance in favour of the appellant/defendant by virtue of the will dated 12.10.2011 would be snubbed and the same is contrary to facts and law.
11. The learned counsel for the appellant/defendant submitted that no contrary evidence was led by the respondents/plaintiffs before the trial court with regard to the physical health and mental state of mind of their mother Bharpai. The learned counsel placed reliance on her submissions, as noted by the trial court in the paragraph No. 14 of the impugned judgment.
12. The learned counsel for the appellant/defendant further submitted that the trial court made erroneous findings, as the Page No. 7/42 respondents/plaintiffs failed to prove that the will dated 12.10.2011 was not in accordance with law.
13. Mr. Shaminder Kadian, learned counsel for the respondents/plaintiffs submitted that no valid ground is urged and made out by the appellant/defendant to seek indulgence with the impugned judgment.
14. The learned counsel for the appellants/plaintiffs submitted that the trial court rightly adjudicated the dispute amongst the sisters rightly decreed the suit by passing the impugned judgment.
15. The learned counsel for the respondents/plaintiffs submitted that it is not disputed that the parties are not fully related by blood and there was no male legal heirs of their parents. The learned counsel for the respondents/plaintiffs submitted that the dispute amongst the sisters arose after the demise of their mother Bharpai on 28.02.2012.
16. The learned counsel for the respondents/plaintiffs submitted that after the death of their mother, the sisters filed an application seeking mutation of the suit property. The appellant/defendant produced a will dated 12.10.2011 before the concerned SDM/Revenue Assistant and the said fact is duly corroborated by the Kanungo's evidence before the trial court. Thereafter, the appellant/defendant in the year 2013 filed a probate petition, propounding a will dated 15.06.1999 before the South West District Court. The learned counsel further submitted that vide order dated 18.03.2014, the said probate petition was dismissed as withdrawn by the appellant/defendant herein with liberty Page No. 8/42 to file a fresh petition on the ground that the appellant/defendant herein has found a subsequent will of her mother i.e. will dated 12.10.2011, in her favour.
17. The learned counsel for the respondents/plaintiffs further submitted that the appellant/defendant did not file any probate petition on the basis of the will dated 12.10.2011 despite seeking liberty from the concerned probate court. The learned counsel for the respondents/plaintiffs further submitted that the plaintiffs preferred the suit for declaration and permanent injunction against the defendant pertaining to the will dated 12.10.2011, as not only the will in question is forged and fabricated but the same has been propounded by the appellant/defendant to usurp all the properties of their parents to the deprivation of her other siblings.
18. With regard to the application under Order XLI, Rule 27, CPC and on being misled by the previous counsel before the trial court, the learned counsel for the respondents/plaintiffs submitted that passing on the buck on the previous counsel is an after thought. The learned counsel further submitted that the same is evident from the purported complaint by the appellant/defendant, as the same is to the Bar Association, which is not even an appropriate authority to hear and decide the complaints against a lawyer for professional misconduct.
19. The learned counsel for the respondents/plaintiffs submitted that the plaintiffs through the Kanungo (PW2) proved that prior to filing of probate petition, the appellant/defendant had knowledge and was Page No. 9/42 aware about the subsequent will dated 12.10.2011. The learned counsel for the respondents/plaintiffs submitted that no case for interference by this appellate court is made out and the impugned judgment and decree passed in favour of the plaintiffs and against the defendant be upheld.
20. Ms. Saroj Bala, learned counsel for the appellant/defendant rejoined her arguments and submitted that the impugned judgment and decree be set aside, as the same are contrary to facts and law.
21. I, have carefully perused, the impugned judgment and decree dated 29.01.2018, trial court record, memorandum of appeal and considered and deliberated over the submissions advanced by the learned counsel for the parties.
22. The case urged by the plaintiffs before the trial court in the plaint was that the plaintiffs and defendant are daughters of Shiv Sahai and Bharpai, who died intestate. Bharpai died on 28.02.2012 and left behind the plaintiffs and defendant as legal heirs. At the time of her demise, Bharpai was the owner of suit property i.e. land situated in Khasra No. 323/3 (1-2), extended lal dora village Dhansa, Delhi. It is averred by the plaintiffs in the plaint that settlement was arrived between the family members of their father and one half share had come to the share of their mother and the other half to Shri Krishan and Gyan Chand, as per the settlement. Subsequently, the father of the parties purchased the other half share from Shri Krishan and Gyan Page No. 10/42 Chand in the name of his wife, Bharpai (mother of the parties) and in the said manner Bharpai became the owner of the suit property.
23. The plaintiffs have averred in the plaint that all the daughters of Shiv Sahai and Bharpai got married during the lifetime of Shiv Sahai and were residing happily at their respective matrimonial houses. Post the demise of their father, their mother was left alone and all the daughters were looking after her turn by turn. The defendant shifted to the house of Bharpai after sometime alongwith her family members and the relocation of the defendant was done pursuant to an oral family discussion amongst the parties and also keeping in mind the fact that the husband of the defendant was not having any proper source of earning. The plaintiffs have also averred that during the period of stay of defendant with their mother, the parties were cordial to each other and there was no complaint of any nature.
24. Bharpai died on 28.02.2012 and thereafter the plaintiffs moved an application seeking mutation of suit property before the concerned SDM, Najafgarh, New Delhi. It is averred by the plaintiff that during the pendency of the mutation application, the defendant filed a copy of alleged will dated 15.06.1999 and staked claim on the suit property, as the same had devolved on her.
25. The plaintiffs have averred that post the demise of their mother, the defendant and her husband intend to grab the suit property and they conspired and prepared a forged and fabricated will dated Page No. 11/42 15.06.1999 and thereafter a subsequent will of Bharpai dated 12.10.2011.
26. The plaintiffs have averred in the plaint that the defendant preferred a probate petition titled as Satvanti v. State - PC No. 28/2013 before the South West District, Dwarka Courts, Delhi and propounded the will dated 15.06.1999. It is averred by the plaintiffs that the defendant on 18.03.2014, submitted before the trial court that she does not intend to proceed with the aforesaid probate case, as the defendant had found a new will dated 12.10.2011 in the box of her mother and the defendant may be permitted to withdraw the probate case with liberty to file a fresh probate petition. It is averred by the plaintiff that the aforesaid probate case was dismissed as withdrawn with liberty granted to file a fresh petition vide order dated 18.03.2014 passed in Satvanti v. State - PC No. 28/2013 before the South West District, Dwarka Courts, Delhi.
27. The plaintiffs have averred in their plaint that since the defendant did not file any fresh probate petition on the basis of the subsequent will dated 12.10.2011, the plaintiffs had to preferred the suit for declaration and permanent injunction against the defendant with regard to restraining the defendant from acting on the will dated 12.10.2011.
28. The plaintiffs have averred in their plaint that with the demise of their mother the suit property stands devolved equally upon all the daughters - plaintiffs and the defendant, as they are the class I legal Page No. 12/42 heirs of Bharpai. The plaintiffs have urged in their plaint that the will dated 12.10.2011 propounded by the defendant is a forged and fabricated and the same has been prepared to defeat the valuable rights of the plaintiffs in the suit property.
29. The plaintiffs have averred in their plaint that their mother did not know English language and thus to have a will dated 12.10.2011 in English language, which she was incapable to understand does reveal that the will dated 12.10.2011 is an after thought. The plaintiffs have also averred that the will dated 12.10.2011 does not disclose that why Bharpai did not bequeath any share to any of her daughters sans Satwanti (defendant).
30. The plaintiffs have averred in the plaint that the will dated 12.10.2011 propounded by the defendant is surrounded by suspicious circumstances and the will in question is not a valid will, whose execution cannot be proved in accordance with law. The plaintiffs have averred in the plaint that there has been no occasion for their mother to debar all her daughters from inheriting her properties.
31. The defendant in her written statement has urged the defence that the will dated 12.10.2011 has been attested by two witnesses and the same bears the thumb impressions of her mother, which were put in the presence of the attesting witnesses.
32. The defendant has averred in the written statement that the suit property was the self acquired property of her mother and the same was purchased for a lawful consideration, who rightly bequeathed the Page No. 13/42 same in favour of the defendant without any undue influence and with free consent and will.
33. The defendant in her written statement denied that her father was looked after by all his daughters and has averred that Bharpai and the defendant looked after the defendant's father. The defendant has averred in her defence that she looked after her mother and none of her sisters looked after her mother. It is also averred by the defendant in her written statement that her husband works in a permanent post with Haryana Bijli Board.
34. The defendant has averred in the written statement that the plaintiffs never visited the house of her father, as their relationship with him was not cordial. It is urged by the defendant that she used to look after her mother and not her other sisters.
35. The defendant has urged in her defence that the plaintiffs have no right in the suit property, as the same has devolved upon her by virtue of her mother's will. The defendant has also averred in her written statement that the will in question is a genuine, valid and a registered will. The defendant has also averred that her mother did not know English but the contents of the will were read over to her at the time of drafting of the will in presence of the witnesses. The defendant has also averred in the written statement that it was not necessary for the executant(sic) of the will to state that why she had not bequeathed any share to other daughters and there is no need to describe the names of other legal heirs in the will.
Page No. 14/4236. On completion of pleadings, the trial court framed the following issues:1 "1. Whether the plaintiff is entitled for declaration declaring the will dated 12.10.2011 being null and void and not binding upon the plaintiff, as prayed? OPP
2. Whether the plaintiff is entitled for permanent injunction restraining the defendants from creating any third party interest in the suit property, as prayed? OPP
3. Whether there is no cause of action in favour of plaintiff and against the defendant?
4. Whether there is due execution of the will dt 12.10.2011 by Smt. Bharpai, as propounded by the defendant? OPD
5. Relief."
37. To prove their case, the plaintiffs produced and examined four witnesses - Ompati, plaintiff No. 1 as PW1; Raj Kumar, Kanungo as PW2; Geetanjali Malik, JJA Record Room (Sessions), South West District, Dwarka Courts as PW3 and Jai Singh as PW4.
38. Whereas, the defendant in her defence and to discharge the onus casted upon her stepped in the witness box, as DW1 on 18.04.2017. It is observed from the perusal of the trial court record that on 18.04.2017 further cross-examination of the defendant was deferred at the request of DW1, as she was not feeling well. The trial court on 1 See Order dated 09.02.2015, p. 41 of Trial Court Record (TCR) Page No. 15/42 account of default on the part of the defendant to be cross-examined despite opportunities granted on earlier date to lead evidence, the trial court closed defendant's evidence vide order dated 29.05.2017 and also held that the partly recorded testimony of DW1 shall not be read in evidence.
39. Thereafter, the defendant on 05.07.2017 moved an application under Section 114, CPC before the trial court seeking review, recalling and setting aside of order dated 29.05.2017. The said application was dismissed by the trial court vide order dated 26.07.2017. It is observed that the appellant/defendant by way of present appeal has not challenged the order dated 26.07.2017.
40. Before I proceed further, I deem appropriate to deal with the application moved by the appellant/defendant under Order XLI, Rule 27, CPC, seeking leaving of the court to lead additional evidence at the stage of first appeal.
41. Order XLI, Rule 27, CPC deals with the issue of taking evidence at appellate stage. A party seeking to produce additional evidence on the foundation that despite exercise of due diligence, such evidence was not within his knowledge or could not, after exercise of due diligence, be produced by him at the time when the decree appeal against was passed is provided under Order XLI, Rule 1(aa), CPC. Cases where the appellant court may require any document to be produce or any witness to be examined to enable it to pronounce Page No. 16/42 judgment or for any other substantial cause is provided under Order XLI, Rule 1(b), CPC.
42. However, exercise of power under Rule 27 of the Order XLI is circumscribed by the limitation specified in Rule 27 itself. It is the duty of the court to come to a definite conclusion that it is truly necessary to accept the documents as additional evidence to enable it to pronounce the judgment. The true test has been deciphered by the Privy Council in Parsotim v. Lal Mohan,2 where the appellate court was able to pronounce the judgment from the material before it without taking into consideration the additional evidence sought to be adduced. The legal principles culled out in Parsotim v. Lal Mohan3 have been accepted by the Apex Court in a three -Judge Bench judgment in Arjan Singh v. Kartar Singh & Ors.,4 wherein the Apex Court held that the said provisions are applicable when some inherent lacuna or defect becomes apparent while examining the case and are not applicable where a discovery is made outside the Court of fresh evidence and application is made to import it. The true test to allow the application is as to whether the appellate court is able to pronounce judgment on the material before it without taking into consideration the additional evidence sought to be adduced.
2 AIR 1931 PC 143 3 ibid.
4 AIR 1951 SC 193 Page No. 17/42
43. A Five Judges' Bench of the Hon'ble Supreme Court in K. Venkataramiah v. A.Seetarama Reddy,5 considering the said provisions, held as under:-
"... ...The Appellate Court has the power to allow additional evidence not only if it requires such evidence to enable it to pronounce judgment but also for 'any other substantial cause.' There may well be cases where even though the Court finds that it is able to pronounce judgment on the set of the record as it is and so it cannot strictly say that it requires additional evidence 'to enable it to pronounce judgment', it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. It is easy to see that such requirement of the Court to enable it to pronounce judgment or for any other substantial cause is not likely to arise ordinarily unless some inherent lacuna or defect becomes apparent on an examination of the evidence. Thus, it made it clear that the object of the said provision is to ask a party to adduce additional evidence."
44. In State of U.P. v. Manbodhan Lal Srivastava,6 the Constitution Bench of the Hon'ble Supreme Court held that "additional evidence"
should not be permitted at the appellate stage in order to enable one of the parties to remove certain lacuna in presenting its case at proper stage and to fill in gaps. Of course, the position is different where the appellate court itself requires certain evidence to be adduced in order to enable it to do justice. The Court held that additional evidence 5 AIR 1963 SC 1526 6 AIR 1957 SC 912 Page No. 18/42 should not be permitted to be adduced when there was sufficient opportunity for the party to place the same before the court below.
45. In Sunder Lal & Son v. Bharat Handicrafts Private Ltd.,7 while dealing with a similar issue, the Hon'ble Supreme Court observed as under:
"Where the Appellate Court requires any document to be produced or witnesses to be examined to enable it to pronounce judgment, or for any other substantial cause, the Court may allow such document to be produced or witnesses to be examined. We do not require additional evidence to be produced in this case to enable us to pronounce judgment, nor do we think that any substantial cause is made out which would justify an order allowing additional evidence to be led at this stage. The document relied upon was admittedly in the possession of the appellants, but they did not rely upon it before the High Court. It was said at the Bar that the importance of the document was not realized by those in charge of the case. We do not think that the plea would bring the case within the expression "other substantial cause" in O. 41, R. 27 of the Code of Civil Procedure."
46. In Premier Automobiles Ltd., Bombay v. Kabirunisha & Ors.,8 the Apex Court held that in case the applicant party satisfies the Court regarding the importance of additional evidence it wants to adduce and explain the circumstances, which prevented it from producing before the trial stage, the application may be allowed.
7 AIR 1968 SC 406 8 AIR 1991 SC 91 Page No. 19/42
47. In Billa Jagan Mohan Reddy & Anr. v. Billa Sanjeeva Reddy & Ors.,9 Hon'ble Supreme Court held that if the documents are found to be relevant to decide the issue in controversy, and feels that interest of justice requires that the documents be received, as additional evidence, the appellate court may receive the documents and consider their effect.
48. The general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order XLI, Rule 27, CPC, enables the appellate court to take additional evidence in exceptional circumstances. The appellate court may permit additional evidence only, and only, if the conditions laid down in this rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, provision does not apply, when on the basis of evidence on record, the appellate court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the rule itself.10
49. The appellate court should not, ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Similarly, where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the court can, in such a case, pronounce 9 (1994) 4 SCC 659 10 See K.Venkataramiah v. A.Seetharama Reddy & Ors. AIR 1963 SC 1526 Page No. 20/42 judgment against him and does not require any additional evidence to enable it to pronounce judgment - See Haji Mohammed Ishaq Wd. S.K.Mohammed & Ors. v. Mohamed Iqbal and Mohamed Ali & Co.11
50. Under Order XLI, Rule 27 CPC, the appellate court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the appellate court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate Court is empowered to admit additional evidence - See The Municipal Corporation of Greater Bombay v. Lala Pancham & Ors.12
51. Now coming to the case at hand, on perusal of the trial court record, it is observed that the trial court vide order 18.05.2016 listed the matter for defendant's evidence for 12.08.2016. It is also observed that the trial court directed the defendant to supply the advance copy of affidavit of evidence and list of witnesses to the opposite counsel at least one week before the next date. The defendant filed the list of witnesses along with evidence by way of affidavit on 12.08.2016 and 11 AIR 1978 SC 798 12 AIR 1965 SC 1008 Page No. 21/42 thereafter the matter was adjourned for defendant's evidence on 03.10.2016. Thereafter, trial court vide order dated 24.11.2016 granted last and final opportunity to the defendant to lead defendant's evidence. It is observed that on 18.04.2017 and 16.05.2017, the defendant sought adjournments and when on 29.05.2017, a request for adjournment was made on behalf of the defendant and the trial court declined the same observed that the defendant is not entitled to any leniency and closed the defendant's right to lead evidence. It is observed that the defendant moved an application under Section 114, CPC seeking review of order dated 29.05.2017 and the same was dismissed by the trial court vide order dated 26.07.2017.
52. This court observes that the appellant/defendant has not challenged the trial court's order dated 26.07.2017 in the present appeal and has moved an application under Order XLI, Rule 27, CPC.
53. Order XVII, Rule 1, CPC provides that the court may grant an adjournment, if sufficient cause is shown at any stage of the suit for the reasons to be recorded in writing. However, the proviso to the Rule 1 of Order XVII, CPC, states that no such adjournment shall be granted more than three times to a parti during the hearing of the suit. It is further observed that the trial court even exercised its power under Rule 2 of Order XVII, CPC and did put the defendant to terms and allowed adjournment at the behest of the defendant.13 13 See Order dated 12.08.2016, p. 57 of TCR Page No. 22/42
54. The position in law is well settled that it is not the business of the appellate court to supplement the evidence adduced by one party or the other in the trial court. Hence, in the absence of satisfactory reasons for the non-production of the evidence in the trial court, additional evidence should not be admitted in appeal, as a party guilty of remissness in the lower court is not entitled to the indulgence of being allowed to give further evidence under this Rule. So a party who had ample opportunity to produce certain evidence in the lower court but failed to do so or elected not to do so, cannot have it admitted in appeal.
55. The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a "substantial cause" within the meaning of Rule 27 of Order XLI of the Code. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal.
56. I, do not find any merit in the application of the appellant/defendant to grant leave to lead additional evidence at the stage of first appeal, as such power is to be exercised sparingly and it is evident from the TCR that the appellant/defendant has not been diligent.
57. In view of the above legal provisions, legal principle and the judgments passed by the Superior Courts, I am of the considered view Page No. 23/42 that the appellant/defendant has failed to show and convince this court that whether her case for production of additional evidence is squarely covered under the scenarios culled out in the sub-Rule (a), (aa), and/or
(b) of Rule 1 of Order XLI, CPC. It is observed and held that no case is made out in favour of the appellant/defendant to produce additional evidence, and the application moved by the appellant/defendant under Order XLI, Rule 27, CPC is dismissed accordingly.
58. That said, the trial court observed that the issue Nos. 1 and 4 were co-related and gave its common findings and observations in the impugned judgment. The trial observed that the parties to the suit are real sisters and the plaintiffs had averred in their plaint that the plaintiffs were looking after their aged mother by taking turns, as they were married. The trial court observed that the parties to the suit were not at variance that their mother did not know English language. It is also observed by the trial court in the impugned judgment that on bare perusal of the will (Ex.PW1/4) no where can it be inferred or determined that the will was read out to the testatrix and explained to her in simple language. The trial court has also observed that the impugned will does not have any reference that why the testatrix is bequeathing her properties to the appellant/defendant and to the exclusion of her other daughters. The trial court has observed that nothing has come in evidence contrary to the claim of the plaintiffs that they equally looked after their mother and they were in touch with their mother until her death.
Page No. 24/4259. The trial court has observed and held that it has come in evidence against the defendant that both the wills, viz., will dated 15.06.1999 and will dated 12.10.2011 were shrouded in mystery and their genuineness is highly susceptible. At this stage, I deem appropriate to reproduce the relevant paragraph Nos. 19 to 22 of the trial court's judgment, which reads as under:
"19. Onus of proof of due execution of Ex.PW1/4 is upon the defendant. The defendant had not produced any witness to discharge her onus. According to the defendant, she was not aware about execution of the Will Ex.PW1/4 at the time of filing of probate case. Defendant had stated before the concerned Court only on 18/03/2014 at the time of withdrawal of that case as she had found a new Will in the box of her mother. Date of death of her mother is 28/02/2012 as per Ex.PW1/1 which is not disputed. The defendant had filed objections to the petition filed by plaintiffs in year 2013 on the basis of the old Will of year 1999 as per Ex.PW1/2 (Colly). If the said alleged old Will was came to the possession of the defendant in year 2013, then, why the Will Ex.PW1/4 was not in the knowledge of the defendant till 18/03/2014, is not explained on behalf of the defendant.
According to the defendant, she found new Will from the box of her mother. Admittedly at the time of death, defendant was residing along with her family & with her mother Late Smt. Bharpai. Why and under which circumstances the said box, of her mother from which new Will Ex.PW1/4 was found, was not in the knowledge of the defendant or was not opened by her till year 2014, is also not explained on behalf of the defendant. Late Smt. Bharpai as seen from photograph annexed upon the Will appears an old aged and sick lady at the time of alleged execution of Will Ex.PW1/4 in October, 2011 and she died in February, 2012. For completing the formalities of execution of Will and then for its registration, she had to visit the concerned Sub-Registrar Office and also to concern typewriter who had typed the Will. As she was Page No. 25/42 under care of the defendant and her family at that time, therefore, she must have accompanied by the defendant or her family for completing the aforesaid formalities for execution of Ex.PW1/4. It is nowhere stated on behalf of defendant in WS or through any other document that Late Smt. Bharpai visited alone or with any third person to the concerned Sub- Registrar Office for completion of formalities of the Will Ex.PW1/4. Further to prove the authenticity of the Will Ex.PW1/4, the defendant had not examined any of its attesting witness as required by section 68 of the Indian Evidence Act, 1872. Ld. Counsel for defendant cited a case law i.e. Rajan Suri and Anr. vs.State and Anr. AIR 2006 Delhi 148 of Hon'ble High Court of Delhi stating that as plaintiffs are challenging the Will and defendant is not using it as an evidence, therefore, provision of Section 68 of Indian Evidence Act are not applicable in this case. I have gone through the contents of the aforesaid case Rajan Suri (Supra). The facts of that case are different from the present case. In that case, it was held by Hon'ble High Court of Delhi while referring another case of Hon'ble High Court of Andhra Pradesh i.e. Valluri Jaganmohini Seetharama Laxmi vs. Kopparthi Ramachandra Rao, AIR 1994 AP 284 that 'where the plaintiff himself accepts the execution of the Will but chooses to contest only on legal aspects touching upon the validity of the bequeathment of certain properties, Section 68 of Indian Evidence Act does not come into play and is totally inapplicable'. In that case, plaintiff had admitted the execution of the Will in question and therefore, Hon'ble Court held that same need not to be proved in view of Section 58 of Indian Evidence Act. However, in present case, plaintiffs had nowhere admitted the execution of Will in question. According to plaintiffs, the Will Ex.PW1/4 was never executed by Late Smt. Bharpai and same is a forged and fabricated document. Therefore, issue no.4 was framed that whether the Will Ex.PW1/4 was duly executed or not. Hence, in this case defendant had to prove the due execution of the Will Ex.PW1/4 to discharge his onus which is not done by the defendant.
Page No. 26/4220. In the present case, defendant along with her family were residing with Late Smt. Bharpai. Due to old age and sickness, Late Smt. Bharpai was under care and custody of the defendant who is only beneficiary under the Will. Apparently the defendant or his family members might have played an active role in execution of the Will. The Will in question was written English language totally unknown to Late Smt. Bharpai. It is nowwhere stated that writer of the Will or any of its witness had explained the contents of the Will to the testator in simple language known to her. It is doubtful that mother of the defendant had not disclosed about execution of the will Ex.PW1/4 to the defendant or any of her family member with whom she was residing despite the fact that the defendant was only beneficiary of the Will. If Late Smt. Bhrapai was having intention not to disclose about her Will, Then why she had disclosed her earlier Will pertaining to year 1999 only to the defendant, is about doubtful. The only witness who had witnessed the alleged Will of year 1999 had stated before the Court during his statement as PW4 that no such Will was executed in his presence by Late Smt. Bharpai. That witness is not the witness of Ex. PW1/4. The reasons of execution of new Will despite the fact that the beneficiary as well as suit property are same in both the Wills, are neither explained by defendant nor in the body of Ex.PW1/4. No any evidence has been placed on record on behalf of defendant to show that who had typed or draft the Will in question i.e. Ex.PW1/4. It is further doubtful that how the Will Ex.PW1/4 was executed in secrecy despite the admitted fact that the testator was living along with the defendant and was also not in a position to complete the formalities of execution and registration of the will due to her old age, sickness & illiteracy. All the above mentioned circumstances are sufficient to prove that the Will in question was executed under suspicious circumstances and it was not executed by its testator with her own free will and after understanding properly the nature and effect of the contents of documents Ex.PW1/4.
Page No. 27/4221. It is held by Hon'ble High Court of Delhi in Kavita Kanwar vs. State (NCT Delhi) 2015(1) CLJ 21 Del. that where the will is surrounded by various unexplained suspicious circumstances, it cannot be said as duly executed. Hon'ble Supreme Court of India had also held in Benga Behera & Anr. vs. Braja Kishore Nanda & Ors. MANU/SC/ 7673/2007 that "Existence of suspicious circumstances itself may be held to be sufficient to arrive at a conclusion that execution of the Will has not duly been proved.
22. Aforesaid discussion reveals that the execution of the Will Ex.PW1/4 is surrounded by grave suspicious circumstances which are remained unexplained on behalf of defendant. Therefore, the Will dated 12.10.2011 i.e. Ex.PW1/4 is declared as null & void and not binding upon the plaintiffs. The defendant failed to prove the due execution of said Will dated 12.10.2011 by Smt Bharpai. Accordingly, issue No.1 & 4 are decided in favour of the plaintiffs and against the defendant. In view of the same, Issue no.2 is also decided in favour of the plaintiffs and against the defendant. Permanent injunction is granted restraining the defendant from creating any third party interest in the suit property. Suit of the Plaintiffs is declared accordingly."
[Emphasis added by underlining and highlighting of text]
60. This court observe that on perusal of the above extracted paragraphs, the trial court has found that the will dated 12.10.2011 is shrouded under suspicious circumstances and the defendant failed to prove the due execution of the impugned will in accordance with law.
61. This court is in consonance with the findings of the trial court and the trial court has rightly decreed the suit of the plaintiffs and declared the will dated 12.10.2011 null and void and further enjoined Page No. 28/42 the appellant/defendant by passing a decree of permanent injunction by restraining her to create any third party interest in the suit property.
62. I, may note that this court is entitled to give additional reasons to sustain the judgment of the trial court in view of the provision of Order XLI, Rule 24, CPC, which provides that a matter has not to be remanded once the record of the trial court is complete and the appellate court has to decide in terms of the record of the trial court and which includes giving of any additional or different reasoning for sustaining the judgment of the trial court.
63. What is germane for a court to decide is whether the will in question is a genuine will and whether deceased testatrix, namely, Bharpai was in a good physical and mental state of mind and no suspicious circumstances arose at the time of signing, attestation and registration of the will. It is the duty of the propounder of the will to prove the will in question in accordance with law. This court cannot lose sight of the fact that in the present case, the propounder of the will is the appellant/defendant.
64. A Constitution Bench of the Hon'ble Supreme Court in Shashi Kumar Banerjee v. Subodh Kumar Banerjee 14 indicated the focal position in law as follows:
"The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by Section 63 of the Act. The onus of proving the 14 AIR 1964 SC 529 - p.531, para 4 Page No. 29/42 will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testatrix as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signature of the testatrix, the condition of the testatrix's mind, the dispositions made in the will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indications in the will to show that the testatrix's was not free. In such a case the court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testatrix. If the propounder himself takes part in the execution of the will which confers a substantial benefit on him that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the will might be unnatural and might cut of wholly or in a part near relations."
65. A will is executed to alter the ordinary mode of succession and by the nature of things the will is bound to result in either reducing or Page No. 30/42 depriving the share of natural heirs. If a person intends his/her property to pass to his/her natural heirs, there is no necessity at all of executing a will. It is true that a propounder of the will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that the natural heirs have been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance especially in a case where the bequest has been made in favour of an offspring.
66. The Apex Court in P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar15 held that it is the duty of the propounder of the will to remove all the suspected features, but there must be real and valid suspicious features and not fantasy of the doubting mind.
67. In Pushpavathi v. Chandraraja Kadamba16 the Hon'ble Supreme Court held that if the propounder succeeds in removing the suspicious circumstance, the court has to give effect to the will, even if the will might be unnatural in the sense that it has cut off wholly or in part near relations.
68. In Rabindra Nath Mukherjee v. Panchanan Banerjee 17 the Hon'ble Supreme Court observed that the circumstance of deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of the will is to interfere with the normal line of succession and so, natural heirs would be debarred in every case of 15 1995 Supp (2) SCC 664 16 (1973) 3 SCC 291 17 (1995) 4 SCC 459 Page No. 31/42 will.
69. In a judgment passed by our Hon'ble High Court of Delhi in Ajay Kumar v. The State & Ors. - FAO No. 39/2017 dated 05.07.201818 wherein His Lordship, Valmiki J.Mehta, J., allowed the appeal under Section 299 of the Act, which challenged the impugned judgment dated 28.10.2006 dismissing the probate petition. Hon'ble High Court allowed the appeal and set aside the impugned judgment and held that the appellant had been successful in proving due execution and attestation of the will dated 17.08.1999 of late Sh. Amar Singh.
70. In Ajay Kumar's case19 though the contesting respondents did not lead any evidence whatsoever but His Lordship' delineated the provisions with regard to requirement of a valid and enforceable will under Section 63(c) of the Act and procedure how the execution of the will is proved under the provisions of the Indian Succession Act, 1925 and Indian Evidence Act, 1872.
71. The Hon'ble High Court relied upon the ratio of the Hon'ble Supreme Court's judgment in M.B. Ramesh (Dead) by LRs v.K.M. Veeraje Urs (Dead) by LRs and Ors.20 with respect to the validity and proving of will. A will has to be executed in the manner required by Section 63 of the Act. Section 68 of the Indian Evidence Act, 1872 requires that the will is to be proved by examining at least one 18 2014 SCC OnLine Del 2521 19 ibid.
20 (2013) 7 SCC 490 Page No. 32/42 attesting witness. Section 71 of the Indian Evidence Act, 1872 comes to the rescue of a party who had done his best but would otherwise be let down if other means of proving due execution by other evidence are not permitted.
72. The relevant provisions of the Indian Succession Act, 1925 and Indian Evidence Act, 1872 read as follows:
Section 63 of the Succession Act "63. Execution of unprivileged wills.- Every testatrix, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules:
(a) ... ... ...
(b) ... ... ...
(c) The will shall be attested by two or more witnesses, each of whom has seen the testatrix sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testatrix, or has received from the testatrix a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testatrix, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
Section 68 of the Evidence Act:
"68. Proof of execution of document required Page No. 33/42 by law to be attested.- 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 it's execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence."
Section 71 of the Evidence Act:
"71. Proof when attesting witness denies the execution.- If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence."
73. The Hon'ble High Court in Ajay Kumar v. The State & Ors. - FAO No. 39/2017 dated 05.07.201821 observed that technicalities must not come as an insurmountable obstruction to defeat a litigant and once an attesting witness is examined, and his statement if read holistically shows proof of the execution and attestation of the will then the will should be held to be proved.
74. A disposition must be in writing and attested by witnesses. The requirement of such formalities is intended to achieve certainty of the testator's intentions and to prevent forgery and impersonation, besides freeing the executant from vitiating influences. The plethora of case laws impinging on wills relates to failure of wills for want of fulfilment of the formalities attendant on execution and attestation. Placing the best possible evidence, in the given circumstances, before 21 2014 SCC OnLine Del 2521 Page No. 34/42 the court for consideration, is one of the cardinal principles of the Indian Evidence Act, 1872.22
75. The proving of execution of a will does not only mean proving the signatures of the executants and the attesting witnesses. It means something more. A will is not an ordinary document. Although it requires to be proved like any other document, the statutory conditions imposed by reason of Section 63(c) of the Act and Section 68 of the Indian Evidence Act, 1872, cannot be ignored. Proof of attestation is indeed a manner of proving execution of the will as regards the identity of the executant, his mental capacity, the voluntariness of disposition, etc. Proof of the signature or mark or thumb impression of the testator is vital matter which requires to be proved. It is settled position in law that even an implied admission or non-denial by the opposite party of due execution of a will may not justify dispensing with proof of the will by the propounder - See Rani Purnima Debi v. Kumar Khagedra Narayan Deb.23 Registration of the will shall not by itself be sufficient to dispel all suspicion where suspicion exits, without submitting the evidence of registration to a close examination. To prove an execution of the will is normally a question of fact. The conscience of the court must be satisfied that the will in question was not only executed and attested in the manner required under the Indian Succession Act, 1925 but it must also be found that the will in 22 See Halsbury's Laws of India, Wills and Succession, 38, Second Edn., 2013, p. 29, para 300.038 23 AIR 1962 SC 567 Page No. 35/42 question was the product of the free volition of the executant who had voluntarily executed the same after knowing and understanding the contents of the will. Therefore, whenever there is any suspicious circumstance, the obligation is cast on the propounder of the will to dispel the suspicious circumstances - See Gurdial Kaur v. Kartar Kaur.24
76. To "attest" is to bear witness to a fact - See Benga Behera v. Braja Kishore Nanda.25 The word attestation is defined in Section 3 of the Transfer of Property Act, 1882, which provides that "attested" 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 of mark, or of the signature of 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. By attestation is meant the signing of a document to signify that the attestor is a witness to the execution of the document; and by Section 63(c) of the Act, an attesting witness is one who signs the document in the presence of the executant after seeing the execution 24 (1998) 3 SCC 384 25 (2007) 9 SCC 728 Page No. 36/42 of the document or after receiving a personal acknowledgement from the executant as regards the execution of the document. While making attestation, there must be an animus attestandi, on the part of the attesting witness, meaning thereby, he must intent to attest and extrinsic evidence on this point is receivable.
77. The mode of proving a will does not ordinarily differ from that of proving any other document, except as to the special requirement of attestation prescribed in the case of a will - See H. Venkatachala Iyengar v. B.N. Thimmajamma26 Although, there is no requirement to call an attesting witness to prove the document, unless the document is specifically denied, the rules of evidence specify that a will which requires to be attested by law 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. Where the attesting witness denies or does not recollect the execution of the documents, its execution may be proved by other evidence.
78. That said, the position in law is crystal clear that compliance with legal formalities as regards proof of the will would not themselves subserve the purpose and the suspicious circumstances surrounding the execution is equally of significance. With time, the courts have engrafted certain standards of human conduct in order that 26 AIR 1959 SC 443 Page No. 37/42 wills are removed from any suspicion. The touchstone seems to be that satisfaction of their judicial conscience - See Kartar Kaur v. Milkho.27
79. The propounder of a will who takes an active part in securing the document will normally excite the suspicion of the court. The main factors which may be used for determining the validity of a will are:
(a) proof of the genuineness of the signature or mark of the testator;
(b) the mental capacity of the testator to execute the will;
(c) the level of the testator's comprehension of the nature and effect of the disposition;
(d) the fact or otherwise of the signature in the document by the testator of his own free will;
(e) suspicious circumstances such as shaky handwriting, a feeble and debilitated mental condition or an unnatural disposition;
(f) the part played by the propounder of the will in securing the instrument of will;
(g) incorrect information regarding relatives;
(h) the exclusion of natural heirs without assigning any reasons for it, and
(i) a literate testator affixing a thumb impression of the will.
80. A will is written without doubt to alter the rules of normal line of succession, if an heir is disinherited without valid reasons, it 27 (1996) 11 SCC 626 Page No. 38/42 becomes serious enough to invite an adverse finding about its truth - See Gurdial Kaur v. Kartar Kaur.28
81. The existence of suspicious circumstances may not lead to an inference that the will was invalid in law, but would certainly be a relevant factor to arrive at a finding that the will was not executed by the testator in a sound and disposing state of mind. A non-disclosure of the existence of the will early on will not by itself be treated as a suspicious circumstance.
82. The Apex Court in Anil Kak v. Sharada Raje29 held that it may be true that deprivation of a due share to the natural heir by itself may not be held to be a suspicious circumstance but it is one of the factors which is taken into consideration by the courts before granting probate of a will. Once the court is required to satisfy its conscience, existence of suspicious circumstances play a prominent role.
83. In Gurdial Kaur v. Kartar Kaur30 the Apex Court held that where some of the natural heirs were disinherited, legatees did not say anything about the will and there were doubts as to executant, the will may be said to have been made under suspicious circumstances.
84. The appellant/defendant filed a probate case Satvanti v. State - PC No. 28/2013 before the South West District, Dwarka Courts, Delhi on the basis of will dated 15.06.1999 and during the pendency of the proceedings, the petitioner (appellant/defendant herein) submitted 28 (1998) 3 SCC 384 29 (2008) 7 SCC 695 30 (1998) 3 SCC 384 Page No. 39/42 before the probate court that she had found a subsequent will of her mother dated 12.10.2011 and she may be permitted to withdraw the probate petition and file a fresh petition. It is observed that the probate court vide order dated 18.03.2014 dismissed the Satvanti v. State - PC No. 28/2013 as withdrawn with liberty file afresh. It is further observed by this court that the appellant/defendant never filed any fresh probate petition propounding the will dated 12.10.2011 and above all neither any counter-claim nor any fresh legal proceeding filed by the appellant/defendant, as a propounder of the will dated dated 12.10.2011 staking claim to the suit property.
85. The impugned will i.e. subsequent will is mired with suspicious circumstances merely for the reason that the respondents/plaintiffs led evidence before the trial court and proved that the appellant/defendant prior to the filing of the probate case Satvanti v. State - PC No. 28/2013 before the South West District, Dwarka Courts, Delhi on the basis of will dated 15.06.1999 had before the concerned SDM/Revenue Authorities had mentioned about the existence of will dated 12.10.2011 and yet no plausible defence, explanation had been tendered by the appellant/defendant in her written statement before the trial court. It cannot be lost sight that the appellant/defendant was well aware about the existence of subsequent will i.e. will dated 12.10.2011 at the time of filing of the probate petition before the South West District Court, Delhi in 2013 and yet she propounded the previous will dated 15.06.1999 and it was, as late as 18.03.2014 the Page No. 40/42 appellant/defendant submitted before the concerned probate court that she found a subsequent will of her mother in her box.
86. Further, the appellant/defendant has clearly admitted in her written statement31 that her mother did not know English language and yet not only the impugned will (will dated 12.10.2011) but also the previous will (will dated 15.06.1999) are in English language.
87. Lastly, I am in consonance with the contention of the learned counsel for the respondents/plaintiffs to the submission advanced by the learned counsel for the appellant/defendant that the previous counsel before the trial court misled her and a complaint filed against the previous counsel before the Bar Association is not an appropriate recourse under the applicable law and a mere eyewash. It is observed that no forthcoming response came from the learned counsel for the appellant/defendant on a query put by this court whether the appellant/ defendant had filed any complaint against the learned counsel, who represented her before the trial court with the Bar Council of Delhi. It is also observed that nothing convincing came through with regard to the fate of the complaint preferred by the appellant/defendant with the concerned Bar Association. It is not out of place to observe that no such ground has been urged by the appellant/defendant in the memorandum of appeal.
88. In light of the above discussions and observations, this court finds no merit in the grounds of appeal urged by the 31 See paragraph No. 17 of the written statement, page No.209, TCR Page No. 41/42 appellant/defendant in the memorandum of appeal. Accordingly, the impugned judgment and decree dated 29.01.2018 passed by the Learned Addl. Senior Civil Judge, South West District, Dwarka Courts, Delhi in a suit titled as Ompati & Ors. v. Satwanti - Civil Suit No. 26234/2016 is upheld and confirmed. The interim application moved by the appellant/defendant under Order XLI, Rule 27, CPC has been dismissed by reasoning and observations in the preceding paragraphs of this judgment. However, all other interim applications moved by the parties are dismissed as infructuous, accordingly. Parties to bear their own costs.
89. Let the decree sheet be drawn up accordingly. The Ahalmad is directed to return the trial court record (TCR) along with the certified copy of the judgment and decree, as per Order XLI, Rule 37, CPC and applicable Rules.
90. File be consigned to record room only after due compliance and necessary action, as per Rules. Digitally signed by HARGURVARINDER HARGURVARINDER SINGH JAGGI SINGH JAGGI Date: 2019.11.20 16:28:37 +0530 Pronounced in the open Court (Hargurvarinder Singh Jaggi) on November 20, 2019 Addl. District Judge-02 South West District Dwarka Courts Complex, Delhi Page No. 42/42