ANIL KHANNA & ANR vs STATE (N.C.T., DELHI) & ORS

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on : 12 December 2023
Judgment pronounced on : 09 February 2024
+ FAO 144/2014 & CM APPL. 6107/2019, CM APPL.
57289/2023
ANIL KHANNA & ANR ….. Appellants
Through: Mr. Samar Singh Kachwaha &
Mr. Agnish Aditya, Advocates.
versus
STATE (N.C.T., DELHI) & ORS ….. Respondents
Through: Mr. Anupam Srivastava
& Mr. Vasuh Misra,
Advocates for R-2
SI Narasi Prasad Meena,
PS New Friends Colony
CORAM:
HON’BLE MR. JUSTICE DHARMESH SHARMA
ORDER
CM APPL. 6107/2019 & CM APPL. 57289/2023 IN FAO 144/2014

1. The aforesaid applications have come up for decisions in the
pending appeal preferred by the appellant No.1/Anil Khanna
supported by his son appellant No.2/Rajat Khanna challenging the
common judgment dated 09.04.2014 passed by learned Additional
District Judge-12, Central District, Delhi, whereby the learned Trial
Court decided the three probate petitions, viz. (i) Probate case No.
57/13/97 titled Anju Kapoor v. State (NCT Delhi & Ors), (ii)
Probate case No. 22/98/13 titled Anju Kapoor v. State, (iii) Probate

case No. 98/13/99 titled Geeta Khanna v State, which were clubbed
together vide order dated 13.05.2008.
2. Shorn of unnecessary details, whereas the probate case bearing
No. 57/13/97 titled Anju Kapoor vs. State was decided in favour of
the petitioner/daughter Anju Kapoor, who propounded that the
holographic Will dated 07.11.1996(Ex. PW 2/2), purportedly executed
by late Shri Atam Swarup Khanna (hereinafter referred as the
testator), vide the impugned judgment, the other two probate cases of
her brothers Anil Khanna as well as second brother Ajay Khanna,
(since deceased, represented through his wife Geeta Khanna and
children) who propounded Will dated 06.03.1997 of the testator were
dismissed.
3. It is pertinent to mention that the learned Trial Court framed the
following issues for consideration: –

“(i)Whether the Will dated 07.11.1996, propounded by the
petitioner is duly executed last and final Will of the testator in a
sound disposing mind? OPP.
(ii)Whether the petition is liable to be dismissed in view of the
objections taken by the objectors? Onus placed on objectors.
(iii) Relief.”

4. The petitioner/Anju Kapoor in order to substantiate that the
Will dated 07.11.1996 was in fact the last and final Will of her father
bequeathing certain properties in her favour, examined PW-1 Mr.
Suresh Kumar, who claimed himself to be a family friend of the
deceased testator besides PW-2 Radha Tayde, who was claimed to be
the maid/servant of the deceased.
5. On the other hand, objector Anil Khanna, who is the appellant
No.1, examined not only himself but also RW-2 Dr. Bharat Inder

Singh. On the conclusion of evidence in the long and protracted trial
that remained pending in the Court, eventually vide impugned
judgment dated 09.04.2014, the learned Trial Court held that
petitioner Anju Kapoor, who is respondent No.1 in the present appeal,
has been able to substantiate that the testator had executed the Will
dated 07.11.1996 in a sound disposing state of mind. Accordingly, the
probate petition No. 57/13/97 was allowed, which is assailed in the
first appeal before this Court.
6. On the filing of the present appeal, this Court, on finding that
the issues raised in the appeal require serious consideration, directed
status quo to be maintained with respect to the properties
encompassed in the Will dated 07.11.1996 viz. property No. C-4/140,
Safdarjung Development Area, New Delhi and Ground floor of D-
837, New Friends Colony, New Delhi.
7. In the said backdrop, the appellants/applicants have moved CM
APPL. 57289/2023 filed under Order XLI Rule 27 read with Section
151 of the Civil Procedure Code, 19081 seeking to adduce additional
evidence, examine witnesses and appoint a Local Commissioner,
while also subsuming CM APPL. 26049/2017 & CM APPL.
872/2018. Reply to the application has already been filed on behalf of
respondent No.1, who is the main contesting party.
8. The applicants/appellants reiterating that there were serious
challenges to the legality and validity of the impugned Will dated
07.11.1996 of the testator, state that the property at Safdarjung
Development Area had been purchased in the name of his mother,

1CPC

who later on relinquished her share in the property and the applicant
constructed a house over the same out of his own funds; and that
sometime in 1973, his father entered into a family settlement whereby
applicant/appellant No. 1 relinquished his 2/3rd share in the said
property in favour of his late father A.S. Khanna as well as his brother
Ajay Khanna (since deceased); and that later on, his father, out of the
profits earned by their company, bought a plot of land measuring 500
square yards in New Friends Colony.
9. It is further stated that since the applicant/appellant No.1 had
relinquished 2/3rd of the share in the property at Safdarjung
Development Area, his late father was left with 1/3rd share in the
same property in 1973, and therefore, such property could not have
been the subject matter of the Will. It is stated that his father was an
astute businessman, having strong understanding of legal affairs,
therefore, it was very unlikely that he could have executed the
impugned Will dated 07.11.1996, and he was, in all likelihood, being
coerced by his sister Anju Kapoor when their father was hospitalized,
into scribbling these lines into a notebook and later on forging his
signatures.
10. In the said background, the applicants/appellants state that they
need to produce additional evidence on the record so as to bring to the
fore the fact that they had filed a complaint dated 07.10.1999 before
the concerned MM, which led to the lodging of FIR No. 688/99 at PS
New Friends Colony for the forgery committed by his sister Anju
Kapoor. However, the Investigating Officer filed an incomplete
charge-sheet on 04.12.1999 without proper investigation during the

pendency of the probate proceedings. It is further the case of the
applicant/appellant that the Investigating Officer had been directed to
seize the original Will, affording him the liberty to obtain it from the
Probate Court so as to verify the signatures of his late father Sh. A.S.
Khanna, besides veracity of voice recording of Ms. Neena Kapoor, a
purported witness to the impugned Will dated 07.11.1996, who was
not examined during the probate proceedings. It is stated that Ms.
Neena Kapoor, in such recordings acknowledged that the impugned
Will was never executed by late Shri A.S. Khanna. It is pointed out
that because of the failure of the Investigating Officer to conduct a fair
investigation, eventually the accused came to be discharged by the
learned ACMM, Saket Courts vide order dated 08.07.2017, which
order has been assailed before the High Court in W.P.(C) No.
1651/2018, which is still pending for a final decision. It is stated that
there is a compelling legal necessity to get the holographic Will dated
07.11.1996 examined forensically so as to bring out the true and
correct facts before this Court. It is further stated that even Rupender
Kapoor, brother of Ms. Neena Kapoor gave an affidavit that he was an
eyewitness to the process of execution of the alleged Will dated
07.11.1996, which was fabricated after the demise of the testator and
the signatures of attesting witness Suresh Kumar were forged on the
last page of the Will.
11. The applicants/appellants seek permission to allow them to
produce additional evidence on the record in the nature of recording of
testimony of Rupender Kapoor besides Ms. Neena Kapoor, and
examine the recorded transcripts of Ms. Neena Kapoor apart from the

evidence consequent to forensic examination of the impugned Will in
question.
12. Learned counsel for the applicant/appellant has vehemently
urged that the additional evidence, which is now sought to be
produced, has a material bearing on the outcome of the entire matter
as that would demonstrate that the impugned Will dated 07.11.1996
was forged and fabricated and heavy reliance is placed on decision in
Union of India v. Ibrahim Uddin.2
13. This brings us to CM APPL. 6107/2019, which has been moved
on behalf of the applicant/Investigating Officer in FIR No.688/99
lodged at PS New Friends Colony based on complaint of the appellant
and it is prayed that the impugned original holographic Will dated
07.11.1996 be handed over to him as per law so as to get it
forensically examined. Learned counsel for the applicants/appellants
in this regard has relied heavily on decision in Rajendra Prasad
Gupta v. Prakash Chandra Mishra3. Needless to state that the
aforesaid applications are opposed tooth and nail by respondent No.1,
Anju Kapoor, who is the main contesting party and beneficiary of the
impugned Will dated 07.11.1996.

2(2012) 8 SCC 148
3 2011 (2) SCC 705

ANALYSIS AND DECISION:

14. Having heard learned counsel for the parties and on perusal of
the entire record besides the written submissions filed on the record on
19.12.2023 & 20.12.2023 by the parties, I find that both the aforesaid
applications are misconceived and ill-conceived, and thereby not

sustainable in law.
15. Without commenting on the merits of the matter, since it has
been vociferously canvassed by the learned counsel for the
applicants/appellants that this Court should first take up and decide the
aforesaid applications in view of decision in the case of Ibrahim
Uddin (supra), it would be expedient to reproduce provisions of Order
XLI Rule 27 of the CPC which provides as under: –

“27. Production of additional evidence in Appellate Court :-
(1) The parties to an appeal shall not be entitled to produce
additional evidence, whether oral or documentary, in the Appellate
Court. But if-
(a) the court from whose decree is preferred has refused to
admit evidence which ought to have been admitted, or
(aa) the party seeking to produce additional evidence,
establishes that notwithstanding the exercise of due dilligence,
such evidence was not within his knowledge or could not, after
the exercise of due diligence, be produced by him at the time
when the decree appealed against was passed, or
(b) the Appellate Court requires any document to be produced
or any witness to be examined to enable it to pronounce
judgment, or for any other substantial cause, the Appellate Court
may allow such evidence or document to be produced, or
witness to be exam med.
(2) Whenever additional evidence is allowed to the produced,
by an Appellate Court, the court shall record the reason for its
admission.”

16. A careful perusal of the aforesaid provision would show that the
Appellate Court may allow production of additional evidence
provided the Court below refused to admit evidence, which ought to
have been admitted; or if it is established by the party seeking to
produce additional evidence that such evidence was not available or
not known despite exercising due diligence and of course, a third
requirement is that the Appellate Court requires such documents to be

produced or any witness to be examined to enable it to pronounce a
judgment or for any other substantial cause.
17. At the outset, it was acknowledged by learned counsel for the
applicants/appellants that during the course of the long trial, although
the transcripts of the conversation of Neena Kapoor, who was a cousin
sister of respondent No.1/Anju Kapoor, were placed on the record, the
said witness was not examined in support of the case of the
applicants/appellants and a lame plea was taken that the said key
witness could not be examined due to wrong legal advice. Likewise,
even Rupender Kapoor, who supposedly filed an affidavit before the
learned MM in the criminal complaint, alleging that the impugned
holographic Will dated 07.11.1996 was fabricated, was also not
examined during the course of the trial in the probate matter to
substantiate their case. It is pertinent to mention here that the probate
case No. 57/13/97 was instituted on 10.10.1997 and upon framing of
the issues, eventually the impugned order was passed on 09.04.2014.
It is evident that such piece(s) of evidence, vital or not, were very
much known and available to the applicants/appellants, and that being
the case, none of the ingredients of Order XLI Rule 27 of the CPC are
satisfied in the instant matter. Further, this Court finds no compelling
legal necessity for production of such additional evidence since the
evidence recorded during the trial would be required to be tested and
re-appreciated in the instant appeal on the touchstone of relevant
provisions of the Indian Succession Act, 19254 as well as the Indian

4 ISA

Evidence Act, 18725.
18. Insofar as the decision in Ibrahim Uddin (supra) is concerned,
it rather goes against the case espoused on behalf of the
applicants/appellants. The factual narrative of the cited decision would
show that it was a case where the suit was one for declaration of title
under Section 34 of the Specific Relief Act,19636 inter alia seeking
presumption of conclusiveness of a document which was an old
document and under Section 90 of the IEA, it was in the nature of
public document. It is in the said context when additional evidence
was sought to be produced at the appellate stage thereby seeking to
place on record an alleged Will in favour of the plaintiff, that it was
held that the Appellate Court should not travel outside the record of
the lower Court and the Appellate Court may permit additional
evidence only and only if the conditions laid down in this rule are
found to exist. It was observed as under: –

5 IEA
6SRA

“Order 41 Rule 27 CPC

36. The general principle is that the appellate court should not
travel outside the record of the lower court and cannot take any
evidence in appeal. However, as an exception, Order 41 Rule 27
CPC enables the appellate court to take additional evidence in
exceptional circumstances. The appellate court may permit
additional evidence only and only if the conditions laid down in
this Rule are found to exist. The parties are not entitled, as of right,
to the admission of such evidence. Thus, the provision does not
apply, when on the basis of the evidence on record, the appellate
court can pronounce a satisfactory judgment. The matter is entirely
within the discretion of the court and is to be used sparingly. Such
a discretion is only a judicial discretion circumscribed by the
limitation specified in the Rule itself. (Vide K. Venkataramiah v.
A. Seetharama Reddy , Municipal Corpn. of Greater Bombay v.
Lala Pancham , Soonda Ram v. Rameshwarlal and Syed Abdul

Khader v. Rami Reddy .)
37. The appellate court should not ordinarily allow new evidence to
be adduced in order to enable a party to raise a new point in appeal.
Similarly, where a party on whom the onus of proving a certain
point lies fails to discharge the onus, he is not entitled to a fresh
opportunity to produce evidence, as the court can, in such a case,
pronounce judgment against him and does not require any
additional evidence to enable it to pronounce judgment. (Vide Haji
Mohammed Ishaq v. Mohd. Iqbal and Mohd. Ali and Co. )
38. Under Order 41 Rule 27 CPC, the appellate court has the power
to allow a document to be produced and a witness to be examined.
But the requirement of the said court must be limited to those cases
where it found it necessary to obtain such evidence for enabling it
to pronounce judgment. This provision does not entitle the
appellate court to let in fresh evidence at the appellate stage where
even without such evidence it can pronounce judgment in a case. It
does not entitle the appellate court to let in fresh evidence only for
the purpose of pronouncing judgment in a particular way. In other
words, it is only for removing a lacuna in the evidence that the
appellate court is empowered to admit additional evidence. (Vide
Lala Pancham.)
39. It is not the business of the appellate court to supplement the
evidence adduced by one party or the other in the lower court.
Hence, in the absence of satisfactory reasons for the non-
production of the evidence in the trial court, additional evidence
should not be admitted in appeal as a party guilty of remissness in
the lower court is not entitled to the indulgence of being allowed to
give further evidence under this Rule. So a party who had ample
opportunity to produce certain evidence in the lower court but
failed to do so or elected not to do so, cannot have it admitted in
appeal. (Vide State of U.P. v. Manbodhan Lal Srivastava and S.
Rajagopal v. C.M. Armugam.)
40. The inadvertence of the party or his inability to understand the
legal issues involved or the wrong advice of a pleader or the
negligence of a pleader or that the party did not realise the
importance of a document does not constitute a “substantial cause”
within the meaning of this Rule. The mere fact that certain
evidence is important, is not in itself a sufficient ground for
admitting that evidence in appeal.
41. The words “for any other substantial cause” must be read with
the word “requires” in the beginning of the sentence, so that it is
only where, for any other substantial cause, the appellate court
requires additional evidence, that this Rule will apply e.g. when
evidence has been taken by the lower court so imperfectly that the
appellate court cannot pass a satisfactory judgment.

42. Whenever the appellate court admits additional evidence it
should record its reasons for doing so (sub-rule (2)). It is a salutary
provision which operates as a check against a too easy reception of
evidence at a late stage of litigation and the statement of reasons
may inspire confidence and disarm objection. Another reason of
this requirement is that, where a further appeal lies from the
decision, the record of reasons will be useful and necessary for the
court of further appeal to see, if the discretion under this Rule has
been properly exercised by the court below. The omission to record
the reasons must, therefore, be treated as a serious defect. But this
provision is only directory and not mandatory, if the reception of
such evidence can be justified under the Rule.
43. The reasons need not be recorded in a separate order provided
they are embodied in the judgment of the appellate court. A mere
reference to the peculiar circumstances of the case, or mere
statement that the evidence is necessary to pronounce judgment, or
that the additional evidence is required to be admitted in the
interests of justice, or that there is no reason to reject the prayer for
the admission of the additional evidence, is not enough compliance
with the requirement as to recording of reasons.
44. It is a settled legal proposition that not only administrative
order, but also judicial order must be supported by reasons,
recorded in it. Thus, while deciding an issue, the court is bound to
give reasons for its conclusion. It is the duty and obligation on the
part of the court to record reasons while disposing of the case. The
hallmark of order and exercise of judicial power by a judicial
forum is for the forum to disclose its reasons by itself and giving of
reasons has always been insisted upon as one of the fundamentals
of sound administration of the justice delivery system, to make it
known that there had been proper and due application of mind to
the issue before the court and also as an essential requisite of the
principles of natural justice. The reason is the heartbeat of every
conclusion. It introduces clarity in an order and without the same,
the order becomes lifeless. Reasons substitute subjectivity with
objectivity. The absence of reasons renders an order
indefensible/unsustainable, particularly when the order is subject to
further challenge before a higher forum. Recording of reasons is
the principle of natural justice and every judicial order must be
supported by reasons recorded in writing. It ensures transparency
and fairness in decision-making. The person who is adversely
affected must know why his application has been rejected. (Vide
State of Orissa v. Dhaniram Luhar , State of Uttaranchal v. Sunil
Kumar Singh Negi, Victoria Memorial Hall v. Howrah Ganatantrik
Nagrik Samity and Sant Lal Gupta v. Modern Coop. Group
Housing Society Ltd.)

***
47. Where the additional evidence sought to be adduced removes
the cloud of doubt over the case and the evidence has a direct and
important bearing on the main issue in the suit and interest of
justice clearly renders it imperative that it may be allowed to be
permitted on record, such application may be allowed.
48. To sum up on the issue, it may be held that an application for
taking additional evidence on record at a belated stage cannot be
filed as a matter of right. The court can consider such an
application with circumspection, provided it is covered under either
of the prerequisite conditions incorporated in the statutory
provisions itself. The discretion is to be exercised by the court
judicially taking into consideration the relevance of the document
in respect of the issues involved in the case and the circumstances
under which such an evidence could not be led in the court below
and as to whether the applicant had prosecuted his case before the
court below diligently and as to whether such evidence is required
to pronounce the judgment by the appellate court. In case the court
comes to the conclusion that the application filed comes within the
four corners of the statutory provisions itself, the evidence may be
taken on record, however, the court must record reasons as on what
basis such an application has been allowed. However, the
application should not be moved at a belated stage.”

19. Further, in the instant matter, the pleas which are being
canvassed by the applicants/appellants at this appellate stage are not
even found in the pleadings and it goes without saying that even the
documents in the criminal complaint were available with the
applicants/appellants and yet the same were not brought in evidence.
It is in the said context that it would be relevant to refer to the
following observations made in the case of Ibrahim Uddin (supra):

“77. This Court while dealing with an issue in Kalyan Singh
Chouhan v. C.P. Joshi , after placing reliance on a very large
number of its earlier judgments including Trojan & Co. v. Nagappa
Chettiar , Om Prakash Gupta v. Ranbir B. Goyal , Ishwar Dutt v.
Collector (LA) and State of Maharashtra v. Hindustan Construction
Co. Ltd. , held that relief not founded on the pleadings cannot be
granted. A decision of a case cannot be based on grounds outside
the pleadings of the parties. No evidence is permissible to be taken
on record in the absence of the pleadings in that Page: 179 respect.

No party can be permitted to travel beyond its pleading and that all
necessary and material facts should be pleaded by the party in
support of the case set up by it. It was further held that where the
evidence was not in the line of the pleadings, the said evidence
cannot be looked into or relied upon.
*****
85.6. The court cannot travel beyond the pleadings as no party can
lead the evidence on an issue/point not raised in the pleadings and
in case, such evidence has been adduced or a finding of fact has
been recorded by the court, it is just to be ignored. Though it may
be a different case where in spite of specific pleadings, a particular
issue is not framed and the parties having full knowledge of the
issue in controversy lead the evidence and the court records a
finding on it.”

20. Therefore, unhesitatingly this Court finds that the present
application has no legal foundation to be considered or to be allowed
under Order XLI Rule 27 of the CPC. That brings us to CM APPL.
6107/2019,and at the cost of repetition, it is stated that the accused
Suresh Kumar (PW-1),an eyewitness to the holographic Will dated
07.11.1996 and accused Anju Kapoor/respondent No.1 stood
discharged in FIR No. 668/99 of PS New Friends Colony as per order
dated 08.11.2017 passed by the then learned ACMM. Indeed, there
was inaction on the part of the Investigating Officer who failed to
seize the original Will in question by adopting appropriate legal
measures but the said order on discharge is assailed in CM
APPL.6107/2019and to my mind, it would not be appropriate to even
consider this application when a final order is yet to be passed on the
same. In any case, it is well ordained in law that a judgment in a
probate matter is a judgment in rem which would be binding on the
Criminal Court and it is never vice-versa.

21. In view of the foregoing discussion, I find that the aforesaid
applications are bereft of any merits and the same are dismissed
without prejudice but with costs of Rs. 25,000/- upon the
applicants/appellants for wasting the precious time of this Court,
which costs be deposited with Delhi High Court Legal Services
Authority within thirty days from today.
22. It is clarified that nothing contained in these orders shall
tantamount to an expression of opinion on the merits of the appeal
case. Since arguments have not been advanced on merits of the appeal,
the parties now should be afforded an opportunity to make
submissions on the merits in the present appeal.
23. However, since the roster has changed and the present appeal
arising out of the probate matters are now assigned to a different
Bench, in order to be fair to the parties and to avoid any prejudice, it
would be expedient that the present matter is assigned by Hon’ble the
Acting Chief Justice, High Court of Delhi to the competent Bench
dealing with such matters. The parties shall appear before Hon’ble the
Acting Chief Justice, High Court of Delhi for further directions on 12th
February, 2024.

DHARMESH SHARMA, J.

FEBRUARY 09, 2024/SA