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Case Number

SAO No. 372 of 1985

Attorney(S)

— Mr. Mukul Rohatgi with Mr. B.P Gupta, Advocates.
— Mr. C.B Thanai, Advocate.

Judges

Mr. Justice Sultan Singh

Acts

SECTION 39 DELHI RENT CONTROL ACT 1958
court.5. Section 63 of the Indian Succession Act
Section 63 of the Indian Succession Act.9.
Section 63 of the Indian Succession Act.
SECTION 63 SUCCESSION ACT
SECTION 68 EVIDENCE ACT

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Smart Summary

Structured Summary of the Opinion (Sultan Singh, J.)

Factual and Procedural Background

This is a second appeal under Section 39 of the Delhi Rent Control Act, 1958 against the judgment and order dated 9 October 1985 of the Rent Control Tribunal. The Tribunal had confirmed an order of eviction (the opinion records both Section 14(1)(c) and Section 14(1)(e) in different places) and had given benefit under Section 14(2) of the Act to the appellant.

The respondent (Had Kishan) filed a petition for eviction of the appellant (Ram Lal) from premises No. 8A/60, Geeta Colony, Delhi-31 alleging rent arrears at Rs. 22 per month from 1 March 1978 and non-payment within two months of a demand notice dated 14 November 1980. The respondent also alleged he required the premises as residential accommodation for family members, that he was the owner by virtue of a registered Will dated 12 April 1971 (executed by Smt. Goli Bai), and that he had no other reasonably suitable residential accommodation.

At trial the Additional Rent Controller (judgment dated 9 March 1985) found that the Will was proved, the respondent was the owner-landlord, his need was bona fide and he had no other reasonably suitable accommodation; the appellant was in arrears from 1 March 1978. The Additional Rent Controller gave benefit under Section 14(2) and ordered eviction under Section 14(1)(e). This order was confirmed by the Rent Control Tribunal, leading to the present second appeal.

Legal Issues Presented

Whether the Will dated 12 April 1971 (Ex. A.W. 1/7) had been proved in accordance with Section 63 of the Indian Succession Act.
Whether the respondent's requirement of the premises was bona fide for the purposes of Section 14(1) (e)/(c) of the Delhi Rent Control Act (i.e., whether the landlord genuinely required the premises for occupation by himself or family and had no reasonably suitable alternative accommodation).

Arguments of the Parties

Appellant's Arguments

The Will dated 12 April 1971 (Ex. A.W. 1/7) was not proved in accordance with Section 63 of the Indian Succession Act; therefore the respondent was not the legal owner/landlord of the suit premises.
The respondent’s alleged requirement of the premises was not bona fide: the respondent was serving in Haryana Police and living in Sirsa in rented accommodation and wanted to shift to Delhi.
Implicitly, the appellant challenged the mode of proof and contended that proper attestation as required by Section 63 had not been established.

Respondent's / Tribunal's Position

The respondent testified as A.W.1, identified signatures of attesting witnesses on the Will, stated that the Will was registered in the Sub-Registrar’s office and marked as Ex. A.W.1/7.
One attesting witness, Ghanshyam Dass (A.W.3), identified his signature on the Will, deposed that the Will was executed in the presence of the testator and was registered, and stated the Will was written by a petition-writer who also signed.
The Additional Rent Controller found that the Will stood proved, respondent was the owner, his requirement was bona fide, he had no reasonably suitable accommodation, and the tenant was in arrears — hence eviction (with benefit under Section 14(2)).
Respondent relied on the absence of cross-examination on attestation and on the trial record (including registration at the Sub-Registrar) to support proof of the Will.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Shashi Kumar Banerjee & ors v. Subodh Kumar Banerjee, AIR 1964 S.C. 529	The mode of proving a Will does not ordinarily differ from proving other documents except for the special attestation requirement in Section 63 of the Succession Act.	The court relied on this principle to contextualize the attestation requirement and to assess whether the Will before it satisfied Section 63.
Naresh Charan Das Gupta v. Paresh Charan Das Gupta, AIR 1955 S.C. 363	It is not an absolute rule that failure to state in examination-in-chief that the witness signed the Will in the testator's presence negates attestation; whether attestation occurred depends on the circumstances in evidence.	The court applied this principle to hold that attestation could be inferred where execution and attestation apparently took place at the same sitting and the attesting witness was not cross-examined on attestation.
Gopal Das & another v. Sri Thakurji & others, AIR 1943 P.C. 83	An objection to the mode of proof (not that the document is inherently inadmissible) must be taken at trial before the document is marked as an exhibit and admitted; failing to do so amounts to waiver and cannot be raised first on appeal.	The court used this authority to support the view that objections to the mode of proof should have been raised at trial when the Will was exhibited; since they were not, the appellant could not raise them for the first time on appeal.
Dogar Mal & others v. Sunam Ram & others, AIR 1944 Lahore 58	The mode of proof of a document is procedural and may be waived; failure to object at trial precludes raising it for the first time on appeal.	The court relied on this to reinforce that procedural objections to proof were waived by inaction at trial.
Balakrishna Kamathi v. Ganesa Pai & others, AIR 1954 Travancore Cochin 209 (EB)	Objections to an irregular or insufficient mode of proof must be taken at trial before the document is marked as exhibit and admitted to record.	The court cited this to support the procedural requirement that objections be timely raised in the trial court.
Kaka Ram Sohanlal & others v. Firm Thakar Dass Mathra Das & another, AIR 1962 Punjab 27	Objection about the mode of proof must be taken in the trial court at the time the document is produced and before it is exhibited; if not, it cannot be raised at the appellate stage.	The court invoked this authority to hold that the appellant’s challenge to mode of proof was untimely when raised on appeal.
Bhagwan Dass & another v. Khem Chand & others, AIR 1973 Punjab & Haryana 477	Same principle: objections regarding mode of proof must be made when the document is produced at trial and before exhibition, or they are lost.	The court applied this precedent similarly to deny belated objections on appeal.
Krishna Kumar Sinha v. The Kayastha Pathshala (Prayag) Allahabad & another, AIR 1966 Allahabad 570	An objection to the admissibility of a document on the ground that it was not duly proved must be taken at the earliest stage and not first in appeal; marking as exhibit without protest implies waiver.	The court cited this authority to emphasize that the Will had been allowed to be marked as an exhibit in the lower court without protest, so the appellant could not challenge its proof on appeal.

Court's Reasoning and Analysis

The court's analysis proceeded from the trial record and focused on two central questions: (1) whether the Will Ex. A.W.1/7 was proved in accordance with Section 63 of the Indian Succession Act; and (2) whether the respondent's requirement was bona fide under the Rent Control Act.

On proof of the Will:

The Will is dated 12 April 1971; signatures of the testator and the two attesting witnesses bear the same date.
The Will was presented at the Sub-Registrar's office on 12 April 1971 and was registered on 16 April 1971; the attesting witnesses (Ghanshyam Dass and Lal Chand) appeared before the Sub-Registrar on 12 April 1971.
The respondent (A.W.1) identified the signatures of the two attesting witnesses on the Will and stated the Will was registered and marked Ex. A.W.1/7.
One attesting witness, Ghanshyam Dass (A.W.3), was examined and identified his signature and deposed to the execution and registration of the Will; he stated the Will was written by a petition-writer who also signed, and that the testator was of sound mind at execution.
Section 63 (Indian Succession Act) prescribes attestation by two or more witnesses; the court treated the presence of the witnesses and registration at the Sub-Registrar as strong evidence that the Will was executed and attested at the same sitting.
Section 68 (Evidence Act) requires that a document required by law to be attested not be used as evidence until one attesting witness has been called; Ghanshyam Dass was produced to prove execution, satisfying Section 68's procedural requirement.
The court relied on authorities (including Shashi Kumar Banerjee and Naresh Charan Das Gupta) to hold that the absence of a specific statement in examination-in-chief that the witness signed in the testator's presence does not automatically defeat attestation; rather, the circumstances (execution and attestation at the same sitting, presence at the Sub-Registrar, lack of cross-examination on attestation) supported an inference of due attestation.
The court further held that the appellant had an opportunity to challenge attestation by cross-examining the attesting witness or by objecting when the exhibit was marked, but did not do so; the court treated this as a waiver of the procedural objection (citing multiple authorities on waiver of mode-of-proof objections).

On bona fides of requirement:

The respondent had retired in May 1981 and was residing in a rented house at Sirsa; he stated his desire to live with his family in the suit premises.
The appellant did not adduce material in cross-examination or otherwise to rebut the respondent's claim that he had no other reasonably suitable residential accommodation, or to show that the respondent did not intend to live in the premises.
The court observed that suitability of the premises for the landlord's family is primarily for the landlord to decide in proceedings under Section 14; absent contradictory evidence, the landlord's claim of bona fide need stood uncontradicted.

Drawing these analyses together, the court concluded that the Will had been duly proved (both factually and within the procedural requirements of evidence law) and that the respondent's requirement of the premises was bona fide and unrefuted.

Holding and Implications

Holding: Appeal Dismissed.

Implications:

The trial court's and Rent Control Tribunal's findings — that the Will dated 12 April 1971 was proved, that the respondent was the owner/landlord, that the respondent's requirement of the premises was bona fide and that the appellant was in arrears of rent — were affirmed.
The eviction order (as made by the Additional Rent Controller under the Rent Control Act and confirmed by the Tribunal) stands; the appellant's challenge to the mode of proof of the Will was rejected as either unfounded on the evidence or waived by failure to object at trial or to cross-examine the attesting witness on attestation.
The court did not purport to lay down any new legal principle; its decision applied existing authorities on proof and attestation of Wills and on waiver of objections to mode of proof. No broader precedent beyond application of those existing principles was announced in the opinion.
The appeal is dismissed with costs, resulting in no change to the eviction and related orders previously made below.

Note: All statements above are drawn exclusively from the provided opinion text; no additional facts or inferences have been introduced.

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Ram Lal v. Hari Kishan

Sultan Singh, J.:— This second appeal under Section 39 of the Delhi Rent Control Act, 1958 (for short ‘the Act’) is directed against the judgment and order dated 9th October, 1985 of the Rent Control Tribunal confirming the order of eviction under Section 14 (1) (c) of the Act and giving benefit under Section 14 (2) of the Act to the appellant.

2. Briefly the facts are that the respondent Had Kishan had filed a petition for eviction of the appellant Ram Lal from premises No. 8A/60, Geeta Colony, Delhi-31 alleging that the appellant was in arrears of rent @ Rs. 22 per month from 1-3-1978 and that he neither paid nor tendered the rents within two months from the date of the service of the notice of demand dated 14th November, 1980. He also alleged that the promises were let for residential purposes and the same were required by him for occupation as a residence for members of his family, that he was the owner of the premises, that he had no other reasonably suitable residential accommodation, that originally Smt. Goli Bai had let out the premises to the appellant at Rs. 22 per month, that she expired and he became the owner by virtue of a registered Will dated 12th April, 1971. The appellant-tenant raised various defences in the written statement, however, the points now argued in this appeal are (1) the respondent is not the owner/landlord of the suit premises as the Will dated 12th April, 1971 has not been proved in accordance with law and (2) the requirement of the respondent is not bona fide. The Additional Rent Controller by judgment and order dated 9th March, 1985 held that the Will stood proved; the respondent was the owner-landlord; he required the premises bona fide; he was not in possession of any reasonably suitable residential accommodation and the appellant was in arrears from 1st March, 1978. The Additional Rent Controller gave benefit of Section 14 (2) of the Act and passed an order of eviction under Section 14 (1) (e) of the Act against the appellant which was confirmed by the Rent Control Tribunal.

3. Learned counsel for the appellant submits that the Will dated 12th April, 1971 Ex. A.W 1/7 has not been proved in accordance with Section 63 of the Indian Succession Act. The respondent appeared as A.W 1 who identified the signatures of the two attesting witnesses Ghanshyam Dass and Lal Chand at points marked ‘A’ and ‘B’ on the Will. He has stated that Smt. Goli Bai had executed the Will in 1971 in his presence, it was registered in the office of the Sub-Registrar and the Will was marked as Ex. A.W 1/7.

4. Ghanshyam Dass, attesting witness of the Will appeared as A.W 3. He has stated that he knew Smt. Goli Bai, his aunt (Bhua); she executed the Will and the same was registered before the Sub-Registrar, Sonepat. He identified his signatures on the Will Ex. A.W 1/7 at point mark ‘A’. He has also deposed that at the time of execution of the Will Goli Bai was of sound mind, that he went to the office of the Sub-Registrar, Sonepat to get the Will registered along with Goli Bai. In cross-examination he has deposed that the Will was written by Devi Dayal, Petition Writer, if was read over at the time of execution, the petition writer signed the Will; Lal Chand also signed the Will and at the time of execution of the Will Smt. Goli Bai might be about 78 or 80 years, that Lal Chand, witness to the Will was also present in court.

5. Section 63 of the Indian Succession Act is as under:

“63. Every testator, not being a soldier employed in an expedition or engaged in actual warfare (or an airman so employed or engaged) or a mariner at sea, shall execute his will according to the following rules: —

(a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.

(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.

(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present, at the same time, and no particular form of attestation shall be necessary”.

6. The signatures of the two witnesses were identified by the respondent. Ghanshyam Dass, attesting witness, deposed about his signatures and the execution of the Will. The Will is dated 12th April, 1971. The testator and the witnesses as is apparent from the Will had also put their signatures on 12th April, 1971. The Will was presented in the office of the Sub-Registrar, Sonepat on 12th April, 1971. The two attesting witnesses Ghanshyam Dass and Lal Chand appeared before the Sub-Registrar also and identified her on 12th April, 1971. The Will was registered in the office of the Sub-Registrar, Sonepat on 16th April, 1971. From these facts it can be said confidently that the two witnesses attested the Will in the presence of the testator and the testator executed the Will in the presence of the two witnesses at the same sitting. When the Will appears to have been executed and attested at the same sitting it would not be necessary for the attesting witness to state in his deposition that he had signed as witness in the presence of the testator. Under Section 68 of the Evidence Act a document required by law to be attested is not to be used as evidence until one attesting witness has been called for proving its execution. In the present case, Ghanshyam Dass, one of the attesting witness has been examined as A.W 3.

7. In Shashi Kumar Banerjee and others v. Subodh Kumar Banarjee, AIR 1964 S.C 529 (1) it has been observed that the mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Succession Act. Learned counsel for the appellant submits that the special requirement of attestation prescribed under Section 63 of the Indian Succession Act has proved in the present case. As already held, execution took place at one sitting on 12th April, 1971. The two attesting witnesses along with testator appeared before the Sub Registrar and the Will was got registered. When the testator and the attesting witnesses were together they all of them must have been present, until the matter was finished. The attesting witness Ghanshyam Dass, A.W 3 was not cross-examined on the question of attestation. It can therefore be inferred that there was due attestation of the Will. From the cross-examination of Ghanshyam Dass A.W 3 it is apparent that the appellant was satisfied about the due execution and attestation of the Will Ex. A.W 1/7. If he had any objection as regards the mode of proof of the Will he ought to have put questions to the attesting witness in cross-examination.

8. In Naresh Charan Das Gupta v. Paresh Charan Das Gupta., AIR 1955 S.C 363 (2) it has been observed as under:

“It cannot be laid down as a matter of law that because the witnesses did not state in examination-in-chief that they signed the Will in the presence of the testator, there was no due attestation. It will depend on the circumstances elicited in evidence whether the attesting witnesses signed in the presence of the testator”.

In that case the finding was that the execution and attestation took place at one sitting where the testator and the witnesses had assembled and that they all must have been present, until the matter was finished. The witnesses were not cross-examined in that case on the question of attestation and it was inferred that there was due attestation. I am therefore of the considered opinion that execution and attestation of the Will stand proved as required by Section 63 of the Indian Succession Act.

9. It is however, further submitted by the learned counsel for the respondent that at the time of putting the exhibit mark on the Will no objection was raised by the appellant about the mode of proof. His submission is that the objection regarding mode of proof ought to have been taken at the time when the exhibits are marked on the documents and admitted to the record, and the appellant at this stage cannot complain as regards the mode of proof. I think there is substance in this objection.

10. In Gopal Das and another v. Sri Thakurji and others, AIR 1943 P.C 83 (3) it has been observed as under:

“Where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie by until the case comes before a court of appeal and then complain for the first time of the mode of proof. A strictly formal proof might or might not have been forthcoming had it been insisted on at the trial”.

11. In Dogar Mal and others v. Sunam Ram and others, AIR 1944 Lahore 58 (4) the Division Bench has observed that the mode of proof of a document is a question of procedure and is capable of being waived. It has also been observed that when the objection as to the manner of proof was not taken at the time when the document was sought to be proved in the lower court it is too late to raise it for the first time in appeal.

12. In Balakrishna Kamathi v. Ganesa Pai and others, AIR 1954 Travancore Cochin 209 (EB) (5). It has been observer that where the objection is that the mode of proof is irregular or insufficient it is essential that objection should be taken at the trial before document is marked as exhibit and admitted to record.

13. In Kaka Ram Sohanlal and other v. Firm Thakar Dass Mathra Das and another, AIR 1962 Punjab 27 (6) and Bhagwan Dass and another v. Khem Chand and others, AIR 1973 Punjab and Haryana 477 (7) it has been observed that the objection with regard to the mode of proof must be taken in the trial court at the time when the document is produced before it and before the same is exhibited. This objection, if not taken at that stage, cannot be allowed to be raised later on at the appellate stage.

14. In Krishna Kumar Sinha v. The Kayastha Pathshala (Prayag) Allahabad and another, AIR 1966 Allahabad 570 (8) also it has been observed that objection to the admissibility of a document on ground that it was not duly proved must be taken at the earliest stage and not in appeal. The Will in that case was allowed to be marked as exhibit by the trial court without any protest on the part of the opponent and the cross-examination of the witnesses produced to prove attestation of the Will did not show that their statement in regard to this matter was being challenged.

15. Learned counsel for the appellant next submits that the requirement of the respondent is not bona fide. He says that the respondent was in Haryana Police and posted at Sirsa, that he is still residing at Sirsa in a rented house, that he now wanted to shift to Delhi. The respondent has appeared as A.W 1. In cross-examination nothing material has been asked on behalf of the appellant. The appellant as A.W 1 does not state that the respondent does not want to live in the suit premises or that he has not retired from service or that he is not living in a rented accommodation. The respondents retired from service in May, 1981 and was residing in a rented house at Sirsa. His contention that he wants to live with his family must be believed.

16. Next it is submitted that the suit premises consist of only one room and there before they were not suitable for the residence of the respondent and his family. This contention is without any force. Whether the suit premises are suitable or not is a matter for the respondent to decide. The court in a case under Section 14 (1) (e) of the Act is concerned to find whether the need of the landlord is bona fide. In the present case nothing has been brought to disbelieve the case of the respondent. It is on the record that the respondent has no other property to reside and there is no evidence in rebuttal. I, therefore, hold that the requirement of the respondent is bona fide. The appeal has no merit and it is dismissed with costs.

Appeal Dismissed.

Ram Lal v. Hari Kishan

Structured Summary of the Opinion (Sultan Singh, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Respondent's / Tribunal's Position

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Ram Lal v. Hari Kishan

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