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IN THE HIGH COURT OF DELHI AT NEW DELHI
Tushar Rao Gedela, J.
Mrs Poonam Kumar – Appellant
Versus
Yash Pal Karval (Deceased) Through Lrs. & Ors. – Respondents
CM(M) 542 of 2023
Decided On : 05-04-2023
Exemption - Filing of Certified Copies - The court allowed exemption from filing certified copies of annexures/documents.
Fact of the Case:
The petitioner challenged an order appointing a Local Commissioner for recording the evidence of an attesting witness to a Will. The petitioner requested the court to pass directions for recording the evidence of the attesting witness before the Court itself.
Finding of the Court:
The court modified the impugned order to allow the recording of evidence of the attesting witness before the Court itself, rather than the Local Commissioner as appointed. The court directed the trial court to commence the recording of evidence of the attesting witness and the petitioner's counsel undertook to conclude the cross-examination within two dates.
Issues: Challenge to the appointment of Local Commissioner for recording evidence of attesting witness to a Will.
Ratio Decidendi: The court's decision was influenced by the submissions of the petitioner's counsel and the absence of objection from the other side, leading to the modification of the impugned order.
Final Decision: The impugned order was modified to allow the recording of evidence of the attesting witness before the Court itself, and the petition and applications were disposed of with no order as to costs.
JUDGMENT
Tushar Rao Gedela, J. (Oral)
[The proceeding has been conducted through Hybrid mode]
CM APPL. 16197/2023
1. This is an application seeking exemption from filing certified copies of the annexures/documents.
2. Exemption is allowed, subject to all just exceptions.
3. The application stands disposed of.
CM(M) 542/2023 & CM APPL. 16196/2023 (Stay)
4. The petitioner challenges the order dated 17.03.2023 passed in PC No. 06/2018 titled `Yash Pal Karwal Through Legal Heirs vs. Govt NCT of Delhi & Ors., whereby in an application under Order XXVI Rule 10 of CPC, 1908, the learned Trial Court had nominated and appointed Local Commissioner for recording the evidence of attesting witness to the Will.
5. After some arguments, Mr. R.K. Saini and Mr. C.L. Dhawan, learned counsels jointly submit that this Court may pass directions for recording of evidence of the attesting witness of the Will before the Court itself, rather than the Local Commissioner as appointed.
6. It is also informed by Mr. Saini, learned counsel that the evidence by way of an affidavit of the attesting witness is on record and he already has a copy of the same and is prepared to conduct the cross-examination.
7. In view of the aforesaid submissions as also with respect to the fact that there is no objection from the other side, the learned Trial Court may take up the matter on 10.04.2023 and commence the recording of evidence of attesting witness.
8. Mr. Saini undertakes to conclude the cross-examination within two dates, the first being 10.04.2023 and the other one would be as per the convenience of the learned Trial Court.
9. The aforesaid modification is with respect to only the application under Order XXVI Rule 10 of CPC, 1908 and so far as the other part of the order is concerned, the same are not gone into.
10. In view of the aforesaid the impugned order is modified to the aforesaid extent and petition and applications are disposed of with no order as to costs.
The court has the discretion to modify orders based on submissions and absence of objections from the parties involved.
In testamentary proceedings, the court has discretion to allow examination of attesting witnesses before the party, aligning with provisions for proving the execution of a Will.
Once that Will is brought on record in evidence, the appellants/respondents would still retain their right to question the respondent/petitioner on the validity of the execution of the same, particul....
The court emphasized the necessity of party consent in procedural matters and the implications of prior undertakings given in court.
Petitioner seeks to withdraw the writ petition with liberty to file an appropriate application seeking recall of the impugned orders, before the Trial Court.
A party who wants to appear as a witness in her own case, should so appear before any other witness on her behalf is examined, unless the court for reasons to be recorded, permits her to appear as he....
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