GURBAX SINGH Vs. JASWINDER SINGH

JUDGEMENT

(1.) THE petitioner is the plaintiff in the suit. This petition under article 227 is directed against the order dated February 20, 2014 passed by the Civil Judge (Junior Division), Dabwali rejecting the prayer of the petitioner for leading additional evidence by way of production of Balbir Singh, Namberdar as a witness for proving the Will bearing No. 163 dated December 14, 1998. There are three registered Wills in this case executed by the testator, the first of which is dated December 14, 1998 and the two other subsequent Wills are dated March 11, 2005 and April 28, 2006 respectively. The 1998 Will was executed by the grandfather in favour of the petitioner's father in shares outlined in the testament. That is how the property came partly into the hands of Joginder Singh son of Mukhtiar Singh. Mukhtiar Singh made a testamentary Will in 2005 bequeathing 1/3rd share to the petitioner. However, by the last and third registered Will, the petitioner has been excluded from natural succession disinherited from the suit property. It is not disputed that Mukhtiar Singh had a right to execute his Will disposing his property in the manner he wished. The plaintiffs evidence was closed by order after 7 -8 opportunities were afforded to him by the learned trial Judge.

(2.) IN the application preferred praying for leading additional evidence, the plaintiff tried to make out a case that the Namberdar of the village was a witness to the Will executed and registered on December 14, 1998 is a necessary witness to prove the execution of the 1998 Will. The purpose of the prayer was to show that 1998 Will was not mentioned in the subsequent Wills and thus this is a suspicious circumstance in favour of the petitioner. However, in 2006 Will the Will registered in 2005 was mentioned in the plaint, where there is mention of the Will dated December 14, 1998 but no evidence has been led by the plaintiff on the point despite ample opportunity to do so. The plaintiff was free to bring with him or summon witnesses through court process to depose in support of his case for a decree and his failure to do so will not confer on him a right belatedly to invoke the inherent powers under Section 151 of the Code of Civil Procedure for producing additional evidence at this belated stage. The learned trial Judge has dismissed the application by passing a reasoned order and after noticing all the facts and the law laid down in the decision of the Supreme Court in K.K. Velusamy v. N. Palaniswamy, : 2011(11) SCC 275. The trial Judge is appears correct in recording that through the application, the petitioner cannot be permitted to fill in lacunas in his evidence already recorded with a view to improve his case beyond what he has already brought on record.

(3.) THE petition fails and is dismissed.