INDRA MEHENDIRATA Vs. RAJ MOHINI

JUDGEMENT

(1.) . In a suit filed by the plaintiff against the defendants praying for decree for partition of the suit property and for rendition of accounts, an application has now been moved by the defendant No.2 seeking to examine Sh.K.N.Kaura, the only surviving attesting witness to the will dated 27th may, 1972 executed by Sh.Rai Bahadur Tulsi Ram, on commission. The aforesaid application has been filed by the plaintiff under Order 26 Rule 5 CPC. It is stated in the said application that the aforesaid Sh.K.N.Kaura was the attesting witness and is the only surviving attesting witness to <PG>384</PG> the will of Sh.Rai Bahadur Tulsi Ram. It is further stated in the application that Sh.K.N.Kaura had informed the second defendant that it would not be possible for him to appear in July on account of him being too old to travel alone, being 90 years of age. It is also stated that the said Sh.K.N.Kaura talked to the defendant No.2 on telephone and told him that his blood pressure had gone up and he had been advised by the doctor not to travel by air from Florida, U.S.A. wherein he has settled for the last 5-6 years.

(2.) . The issue that is arising for consideration in the suit is as to whether the will dated 27th May, 1972 was duly executed by Sh.Rai Bahadur Tuisi Ram, as alleged by defendants 1 and 2. Sh.Rai Bahadur Tuisi Ram has died. There were two attesting witnesses to the aforesaid will, one being Sh.Dalip Chand Dhir and the other being Sh.K.N.Kaura. Sh.Dalip Chand Dhir had died long ago and, therefore, Sh.K.N.kaura is the only surviving witness to the aforesaid will. He is now permanently settled in the Florida, U.S.A. which is outside the jurisdiction of this court. It is stated by the defendant No.2 in the present application that examination of the said witness Sh.K.N.Kaura is vital to the case of the defendants and, therefore, the court should allow the request of the defendant no.2 to get the said witness examined, on commission at Florida, U.S.A.

(3.) . The aforesaid application Filed by the defendant No.2 is opposed by the plaintiff contending, inter alia, that no proof of said alleged illness or medical advise has been annexed with the application. It is also stated that since Florida is connected to New Delhi by air therefore, the said witness should be produced before the court by the defendant No.2, if he so chooses. The application was further contested on the ground that evidence of an attestator of a will is very material piece of evidence but in case, the witness is not brought before this court, the court would be deprived of the opportunity to note the demeanour and watch the witness while being examined. In the light of the aforesaid statement made by the defendant No.2, let me now consider whether a direction could be issued for examination of the said witness, on commission.