Orissa High Court
Praveen Chandra Bhanjadeo vs Prativa Manjari Devi And Others .... ... on 12 December, 2023
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
Signature Not Verified
Digitally Signed
Signed by: ROJALIN NAYAK
Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 13-Dec-2023 18:39:23
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP NO.787 OF 2023
Praveen Chandra Bhanjadeo .... Petitioner
Mr. Bibekananda Bhuyan, Advocate
-versus-
Prativa Manjari Devi and others .... Opp. Parties
Mr. Sushanta Kumar Dash, Advocate
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 12.12.2023
05. 1. This matter is taken up through hybrid mode.
2. Order dated 30th June, 2023 (Annexure-8) passed by learned Senior Civil Judge, Baripada in CS No.291 of 2023 is under challenge in this CMP, whereby an application filed by the Petitioner-Defendant No.3 under Order XI Rule 14 CPC to direct the Plaintiff to produce certified copy of the registered Will dated 24th July, 1997, certified copy of the Probate Application in Case No.117 of 2005 pending in the Court of learned District Judge, South 24 Progana, Alipore and original Power of Attorney executed in favour of Raj Rajeswar Prasad Singh Chandel, has been partly allowed.
3. Mr. Bhuyan, learned counsel for the Petitioner-Defendant No.3 submits that the suit has been filed for declaration of right, title and interest over the suit property. It is contended by the Plaintiff-Opposite Party No.1 that late Prem Kumari Devi @ Prem Kumari Bhanj Deo is the recorded tenant in respect of the suit property and has executed a Will in favour of the Pratibha Manjari Devi bequeathing the suit property in her favour vide Registered Will dated 24th July, 1997 at Calcutta. The Plaintiff-Opposite Party No.1 on the basis of the said Will has also filed a Probate Case in the Court of learned District Judge, South 24, Progana, Alipore in Page 1 of 4 Signature Not Verified Digitally Signed // 2 // Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Dec-2023 18:39:23 the year 2005 which is registered as Act XXXIX Case No.117 of 2005(P). The Plaintiff in the suit is represented by her Power of Attorney holder namely, Raj Rajeswar Prasad Singh Chandel , son of late Pratap Singh. But the Plaintiff has filed photocopy of the deed of Power of Attorney along with the plaint. In order to file written statement, inspection of those documents is essential. Although a photocopy of the Registered Will has been filed along with the plaint, but the Defendant cannot file his written statement on the basis of the said photocopy. Learned trial Court, although directed the Plaintiff-Opposite Party No.1 to produce the original deed of General Power of Attorney executed by the Plaintiff in favour of her son namely, Raj Rajeswar Prasad Singh Chandel, but refused the prayer for production of registered deed of Will as well a certified copy of the Probate Case observing that the certified copy of the Will and Probate application are part of the case record. It is submitted by Mr. Bhuyan, learned counsel for the Petitioner that those are not certified copies, but coloured photocopy of the original registered Will as well as Probate application.
4. It is his submission that in view of the Section 51 read with Section 57 (2) and 62 of the Registration Act, 1908, the Petitioner can only inspect the registered Will and Registered General Power of Attorney in the office of the Registrar, but cannot get the certified copy of the same. These aspects were not taken into consideration by learned trial Court while adjudicating the matter. Hence, he prays for setting aside the impugned order to the extent of refusing the prayer to direct the Plaintiff-Opposite Party No.1 to produce the certified copy of the Will and Probate application.
5. Mr. Dash, learned counsel for the Plaintiff-Opposite Party No.1 submits that the Defendant No.3-Petitioner himself filed a certified copy of the order in a separate proceeding stating that the Page 2 of 4 Signature Not Verified Digitally Signed // 3 // Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Dec-2023 18:39:23 petition in Probate proceeding has been returned to the Plaintiff- Opposite party No.1 to be presented in Competent Court of Law. Thus, the prayer for directing the Plaintiff-Opposite Party No.1 to produce the certified copy of the probate petition is inconsequential at present.
6. He further submits that the Opposite Party No.1 does not have any objection to produce the original deed of General Power of Attorney executed by the Plaintiff in favour of her son, but the said document is required in different proceedings and for other purposes. The Opposite Party No.1 does not have any objection to produce the same for inspection of the petitioner and should be permitted to take back the document after inspection with permission of the Court. It is his submission that the Opposite Party No.1 has already filed an application in that regard which is pending for consideration before learned trial Court.
7. Taking note of submission made by learned counsel for the parties, this Court is of the considered opinion that the document, i.e, certified copy of the Will cannot be made available to the Petitioner in view of the provisions under Section 51 read with Section 57 (2) and 62 of the Registration Act, 1908. Since the copy of the Will is the basis on which the Plaintiff claims title, it is relevant document and is required to be produced by the Plaintiff- Opposite Party No.1.
8. As the original deed of Registered Will is a part of case record in the Probate Proceeding, the Opposite Party No.1 should not be compelled to produce the same. He can certainly produce the certified copy of the Will.
9. In addition to the above, it is submitted by learned counsel for the Petitioner that the Opposite Party No.1 has only produced coloured photocopy of the original registered deed of Will. Mr. Page 3 of 4 Signature Not Verified Digitally Signed // 4 // Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Dec-2023 18:39:23 Dash, learned counsel for the Opposite Party No.1 however, submits that he does not have any instruction in that regard.
10. It is, therefore, directed that the Opposite Party No.1 shall produce the certified copy of the registered Will before learned trial Court for inspection by the Petitioner-Defendant No.3.
11. Since it is submitted that the petition in the Probate Case No.117 of 2005 has been returned to the Plaintiff-Opposite Party No.1, to be presented in Competent Court of Law, the prayer for production of the copy of the Probate petition has become redundant.
12. Mr. Dash, learned counsel for the Plaintiff-Opposite Party No.1 submits that he has no objection to produce the original deed of General Power of Attorney executed by the Plaintiff in favour of her son, but the said document is required in different proceedings.
13. In that view of the matter, the opposite Party No.1 shall produce the original deed of Power of Attorney executed by the Plaintiff-Opposite Party No.1 in favour of her son namely, Raj Rajeswar Prasad Singh Chandel for inspection of the Petitioner- Defendant No.3 for filing of written statement and may take back the same with prior permission of learned trial Court.
14. With the aforesaid observation and modification in the impugned order, the CMP is disposed of.
Urgent certified copy of this order be granted on proper application.
(K.R. Mohapatra) Judge Rojalin Page 4 of 4