JUDGMENT
Sultan Singh, J.
(1) This second apeal 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(l)(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 Hari 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 1-3-197R 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 lettered Will dated 12th April. 1971. The appellant-tenant raised various defenses in the written statement, however, the r.’on1ts now argued in this appeal are (1) the respondent is not the owner/landlord of the suit promises as the Will dated 12th April 1971 has not been proved in accordance with law, and (2) the requirement of the respondent is not H bona fide. The Additional Rent Controller by judgment and order dated 9th March, 1885 held that the Will stood oroved: the respondent was the owner-landlord: hehe 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(l)(c) of the Act against the appellant which was confirmed by the Rent Control Tribunal.
(3) Learned counsel for the appellant submits that the Will 8 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. I 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 rind 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 Sipt. 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. I )7 at point mark ‘A’. He has also deposed that at the time of execution of the Will Goli Bai was of sound E 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, it 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 sc 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 signature^ 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 vs. Subodh Kumar Ban’arjee, it has been observed that the mode of proving a Will does not ordinarily differ from that of Droving 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. 117. 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 vs. Paresh Charan Das Gupta and another, 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 hart 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 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) I Gopal Das and another vs. 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 vs. 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 vs. Ganesa Pai and others, Air 1954 Travancore Cochin 209 (EB) (5). It has been observed 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 vs. Firm Thakar Dass Mathra Das and another, and Bhagwan Dass and another vs. Khem Chand and others, 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 vs. 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 B 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. I 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(l)(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.
