RAJINDER KUMAR GUPTA Vs. STATE

JUDGEMENT

(1.) A petition under Section 276 of the Indian Succession Act (hereinafter referred to as 'the Act) was filed by the respondent no.2 herein i.e., Rameshwar Prasad Gupta stating that his mother Smt.Janaki Devi died intestate on 3rd March, 1995 and left behind estate i.e. house no.92, Banarsi Dass Estate, Delhi and he is one of the co-owners of the said property, as such, had prayed that Letter of Administration qua his share or in the alternative along with other co- owners be granted. The objections to the said petition were filed by Shri Rajinder Kumar Gupta i.e., appellant herein alleging that his mother had executed a Will Ex.PW 1/RB(Mark 'A) dated 18th August, 1984 which was acted upon and the parties occupied their respective portion in the aforesaid property as per wishes of deceased. Respondent nos. 3 and 4 who are also the son and daughter of the deceased supported the case of the respondent no.2 i.e., Rameshwar Prasad Gupta. On the basis of pleadings of the parties, issues were framed. After recording the evidence and hearing the parties, the learned ADJ vide order dated 13th October, 2008 has held that Will Ex.PW 1/RB((Mark 'A) alleged to have been executed by Smt.Janki Devi on 18th August, 1984 as alleged by appellant was not proved as legal and valid. It was further held that no legal and admissible evidence on behalf of respondent no.2 was also produced by him, as such, prayer for grant of Letter of Administration was also rejected and the petition in this regard was dismissed.

(2.) AGGRIEVED with the same, appellant herein i.e., respondent no.2 before the trial court had challenged the order dated 13.10.2008 by filing an appeal contending therein that the learned trial court while passing the impugned order has succinctly discountenanced one of the attesting witnesses to the Will Ex.PW 1/RB(Mark 'A) i.e., Rameshwar Das Gupta O2W2. It was contended that the said witness was a credible witness and the trial court had wrongly ignored his evidence on the basis of alleged discrepancy with the testimony of other witness and had disbelieved the Will Ex.PW 1/RB(Mark 'A). The said appeal was dismissed by this court vide judgment dated 7 th March, 2011.

(3.) IT is submitted that there is no requirement under law of signing of both the attesting witnesses on the Will Ex.PW 1/RB(Mark 'A) in the presence of each other or .signing of testatrix in the presence of both the attesting witnesses. It is submitted that while deciding the FAO, this court has ignored the vital evidence of O2W2 Shri Rameshwar Das Gupta, the second attesting witness to the Will Ex.PW 1/RB(Mark 'A), wherein the said witness has admitted the acknowledgement being given to him by the testatrix in regard to her signatures on the Will Ex.PW 1/RB(Mark 'A). It is submitted that O2W2 in his evidence has admitted the acknowledgement given to him by the testatrix of having signed the Will Ex.PW 1/RB(Mark 'A) by her as well as by other witness and thereafter he had signed the Will Ex.PW 1/RB(Mark 'A) in the presence of testatrix, as such requirement under section 63(c) of the Act is fulfilled. It is submitted that if said piece of evidence is taken into consideration, the Will Ex.PW 1/RB(Mark 'A) stands proved. It is submitted that the order dated 7th March, 2011 dismissing the appeal is contrary to law , as such there is sufficient ground for review.