RAJMDER NATH SHARMA Vs. RANI CHANDER KANTA

JUDGEMENT

(1.) The facts of this appeal are that one Raja Fateh Singh of Sheikhpura (Pakistan)) who died sometime in 1930, left extensive properties in New Delhi, Karnal Simla, Haridwar and Varansi. He left behind two widows and son Raja Dhian Singh by Rani Mistri Devi. Raja Dhian Singh died on February 1, 1957. He left three widows and children from all of them. In a litigation between the heirs of Raja Fateh Singh, by decrees awarded by the Commercial Sub-Judge Delhi on April 18, 1962 and August 24, 1962, in Suit No 417 of 1959, another widow of Raja Fateh Singh, Rani Kripa Devi was awarded 1/10 share in the properties in dispute. It is alleged that Rani Kripa Devi executed a Will (Ex. P-l) on 2-6-1967 and presented it for registration on 6-6-1967. It was registered on 7-6-1967 by Hari Ghand Gaur (Public Witness 2). By the said Will she purports to have bequeathed her share in favour of four sons of her brother Shankar Lal and a servant S.ldhu Singh who has been in faithful service of the family for 32 years since the time of Raja Fateh Singh. The Will is alleged to have been drafted and prepared by advocate Krishan Gopal (Public Witness 3) and attested by Baljit Singh Tyagi (Public Witness 4) and Satyavir Singh Tyagi (Public Witness 5). It also bears an endorsement by the deceased in her own hand to which reference will be made later on. Rani Kripa Devi entered a local Nursing Home on 9-6-1967. She was operated for overaian tumour on 11-6-1967. She died on 12-6-1967. She was issueless.

(2.) On 5-7-1967 the five legatees entered into an agreement (Ex. P-l) with Kala Wati daughter of Shankar Lal by which they agreed to give l/6th share to Mst. Kala Wati out of 1/10th share of Rani Kripa Devi. On 22-8-1967, the legatees plus Mst. Kala Wati applied for probate, of the aforesaid Will. The probate was opposed by the heirs of Raja Dhian Singh led by Rani Ghander Kanta. The petitioners examined six witnesses while the opponents examined five witnesses. The learned single Judge by his order dated December 13, 1971 rejected the petition. He held that the Will was not proved and declined to go into the question whether Rani Kripa Devi had any title to the properties bequeathed. Hence this appeal.

(3.) After the arguments were over in the appeal Mr. Arun Mohan on behalf of the appellants made an application under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure praying for permission to lead additional evidence to prove the signatures and writings of the deceased Rani Kripa Devi on the alleged Will This application was opposed. According to Order 41 Rule 27 parties to an appeal are not entitled to produce additional evidence in the appellate court unless the lower court has refused to admit evidence which ought to have been admitted or the evidence was not within the knowledge or could not after the exercise of due diligence be produced at the time when the decree appealed against, was passed or the appellate court requires such evidence to enable it to pronounce judgment or for any other substantial cause. It is not the case of the appellants that the evidence which is now sought to be adduced was not admitted in evidence by the court below. Nor is it their case that they could not even after exercise of due diligence prove her signatures and handwriting by other writings. We do not think that it is necessary to allow this evidence to enable us to pronounce the judgment. Nor do we find any substantial cause for acceeding to this request. The only cause shown by the appellants is that Hans Raj Sawhney, their advocate in the court below had advised them that since the Will was registered and it was also established that there has been litigation between the deceased and the objectors, and the Will bore the signatures on each page as well as the writing of the deceased and thumb impression also, the evidence on record was sufficient and fool proof and no further evidence was necessary. In reply on behalf of the respondents, it is stated that the petitioners were prepresented by two advocates of the eminence of Mr. Sawhney and Mr. Radhe Mohan Lal and that they would not have given any irresponsible or improper advice to their clients. Mr. Radhe Mohan Lal did not move this court for adducing additional evidence while moving the appeal. It was only at the time of arguments that Mr. Arun Mohan advocate of the appellants realised that some more evidence should have been led to prove the Will and made this belated application. It may be noticed that Sadhu Singh had died on 21-9-1977. His legal heirs were even not brought on the record and it was in order to take advantage of his disappearance from the scene, that the appellants want to produce fake evidence. We have considered this matter and upheld the objections to the applications, and do not think that any sufficient cause has been disclosed for grant of permission for additional evidence at this stage. The application for additional evidence is therefore, rejected.