Calcutta High Court
Pinaki Chowdhury vs Subrata Chowdhury And Japani Roy on 15 December, 2016
Author: Debangsu Basak
Bench: Debangsu Basak
ORDER SHEET
GA No. 3593 of 2016
TS No. 44 of 2016
IN THE HIGH COURT AT CALCUTTA
Testamentary and Intestate Jurisdiction
IN THE GOODS OF:
KHITISH CHANDRA CHOWDHURY (DECD.)
AND
PINAKI CHOWDHURY
VS.
SUBRATA CHOWDHURY AND JAPANI ROY
BEFORE:
The Hon'ble JUSTICE DEBANGSU BASAK
Date : 15th December, 2016.
Mr. Jishnu Chowdhury, Adv.
...appears
Mr. Rupak Ghosh, Adv.
...appears
Mr. Suvadeep Sen,
Mr. Debasish Ghose, Advs.
...for Japani Roy
The Court : Supplementary Judge's Brief of Document filed in
Court be kept with the record.
After hearing the parties and considering the pleadings the
following issues are settled :
1.Whether the plaintiff is entitled to the grant of letters of administration of the Will dated August 22, 1969 executed by Kshitish Chandra Chowdhury ?
2. Did the Testator execute the Will dated August 22, 1969 ? 2
2. Does the Will dated August 22, 1969 bear the signature of the testator ?
2. Did the testator have the mental capacity to make the will ?
2. Whether after the death of Saroshibala Chowdhury, the intent of testator subsists regarding the subject matter of the Will ?
2. What reliefs, if any, are the parties entitled to ? The suit is taken up for hearing. The plaintiff produces his first witness. In the midst of the examination-in-chief, it transpires that, the Will which is in vernacular has not been translated officially. Learned advocate for the plaintiff seeks time to have the Will in the vernacular translated officially. He refers to an application being G.A. No. 3593 of 2016 and submits that, he requires evidence of the second witness to be taken on commission since such witness is physically incapable of attending the Court.
In view of such developments, it would be appropriate to take up G.A. 3593 of 2016 for hearing.
The application is for taking evidence of the second witness of the plaintiff on commission.
On consideration of such application, in my view, interest of justice would be subserved by allowing of the parties to the proceeding to 3 adduce their evidence on commission. This course of action is adopted in view of the paucity of time of the Court. The testamentary suit is of 2016. It is still pending consideration by allowing the parties to adduce evidence on commission to expedite the hearing of the suit.
In such circumstances, all the parties to T.S. No. 44 of 2016 will adduce their evidence on commission. The evidence adduced today will be treated as de bene esse in the suit. Mr. Sankarsan Sarkar is appointed as advocate Commissioner before whom the parties will adduce their evidence. He will be paid a remuneration of Rs. 5,100/- per day. The commission commence on and from January 7, 2017 and will continue on day today basis commencing from 10.30 A.M. everyday. On such dates there will be a 45 minutes recess commencing from 1.15 P.M. till 2 P.M. The parties will cooperate with the advocate Commissioner. The parties will provide the necessary secretarial assistance to the advocate Commissioner to complete the work of commission.
The advocate-on-record for the plaintiff will be at liberty to take delivery of the cause papers and the documents from the Court. He will give an accountable receipt of the same to the Registrar, Original Side. He will be personally liable for such papers. He will also keep in his custody the documents marked as exhibits before the advocate Commissioner as well as documents which are tendered in evidence and marked for 4 identification and will return such documents on the completion of the commission to the Registrar, Original Side.
So far as the order for commission and the manner of the documents to be kept with the advocate-on-record for the plaintiff is concerned, the same is passed by the consent of the parties. The parties producing the witness will pay the remuneration of the Commissioner for such date.
The plaintiff is at liberty to have the vernacular Will translated by the department. Learned advocate for the defendant no. 1 has applied for certified copy of certain documents. The department is at liberty to process the same in accordance with law.
List T.S. No. 44 of 2016 on January 24, 2017 under the heading for argument.
(DEBANGSU BASAK, J.) TR/