Bombay High Court
Trustees Co. Ltd. Ig vs Ashok Raju Shetty And Ors on 18 October, 2013
Author: R.D.Dhanuka
Bench: R.D.Dhanuka
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY & INTESTATE JURISDICTION
CHAMBER SUMMONS NO. 126 OF 2012
IN
TESTAMENTARY SUIT NO. 46 OF 1997
IN
TESTAMENTARY PETITION NO. 308 OF 1997
Trustees Co. Ltd. ig ... Plaintiffs
Versus
Ashok Raju Shetty and Ors. ... Defendants
Mr. Shailesh Shah, Sr. Advocate along with Mamta Sadh i/by
Zohair & Co. for applicant (defendant nos. 4 and 5).
Mr.U.J. Makhija, Sr. counsel i/by Ms. Manju Rajbhar for defendant
nos. 1 to 3.
Mr. Milind Shewale for plaintiff in Testamentary Suit No. 46 of
1997.
CORAM : R.D.DHANUKA J.
RESERVED ON : 30/08/2013
PRONOUNCED ON : 18/10/2013
ORAL JUDGMENT :
By this chamber summons, defendant nos,. 4 and 5 seeks ::: Downloaded on - 27/11/2013 20:27:34 ::: .. 2 .. CST-126.2012.sxw permission to examine Dr. Shri. R.V. Adyanthaya who had alleged to have examined deceased at the time of execution of the Will of the deceased and who had alleged to have put signature on the Will dated 9th August, 1995. Defendant nos. 4 and 5 are claiming to be the beneficiaries under the alleged Will dated 9 th August, 1995 executed by the deceased testator.
2. Petitioners who are appointed as executors of the Will left by the deceased filed testamentary petition in this court (308 of 1997) inter alia praying for probate of the said will dated 9 th August, 1995. The caveator filed caveat and affidavit in support.
Testamentary petition was converted into suit. Defendant nos. 4 and 5 are claiming to be beneficiaries under the said will and are supporting the petitioners.
3. Petitioners examined five witnesses. On 1 st December, 2009, defendant nos. 4 and 5 made statement that they were not intending to file any written statement as they were supporting the ::: Downloaded on - 27/11/2013 20:27:34 ::: .. 3 .. CST-126.2012.sxw petitioner/plaintiff. On 20th December, 2010, this court recorded statement of the defendant nos. 4 and 5 through their learned senior counsel that defendant nos. 4 and 5 support petitioner/plaintiff and shall not lead any evidence. On 21 st March, 2011 by an order passed by R.Y. Ganoo,J., it was observed that the witnesses examined by the plaintiff/petitioner does not prove that there was evidence as to who had incorporated the figures in the will in question and that omission was material omission in the matter of proving the document of Will. It was observed that on the basis of the evidence placed before this court, plaintiffs/petitioners had failed to prove the document of Will as having been duly executed on 9 th August, 1995 by the testator and accordingly the said will could not be marked as exhibit and it continues to be marked as X2 for identification. This court directed the matter to be placed on board for arguments.
4. Plaintiff/Petitioners thereafter filed Chamber summons (60 of 2011) inter alia praying for recalling of the attesting ::: Downloaded on - 27/11/2013 20:27:34 ::: .. 4 .. CST-126.2012.sxw witness. By an order dated 10th June, 2011 passed by this court, it is held that the witness who has proved the Will is required to depose about the date of the Will and the same must be allowed.
This court directed the plaintiff to file further affidavit of examination in chief within one week only on that limited aspect with liberty to the defendant to further cross examine the plaintiff's witness. This court observed that the entire truth has to be brought on record and the court may recall any witness. It is held that no party can take advantage of any inadvertent error. The court is interested only in asserting the whole truth. It is held that under section 151 of the Code of Civil Procedure, 1908, the court can recall any witness for further evidence, however, the same shall be subject to witness being cross examined thereafter. The said order was impugned by the defendant nos. 1, 2 and 3 by filing appeal [Appeal (Lodging) No. 393 of 2011]. By an order dated 4 th July, 2011 passed by the Division Bench, the said appeal is summarily dismissed on the ground that it was not maintainable. This court further observed that the learned Single Judge has allowed the ::: Downloaded on - 27/11/2013 20:27:34 ::: .. 5 .. CST-126.2012.sxw Chamber summons filed by the applicants after hearing the parties and after holding that the witness who proved the Will was required to depose about the date of the Will.
5. It is not in dispute that the plaintiffs have closed their evidence. Defendant Nos. 4 and 5 have filed this chamber summons for permission to examine Dr. R.V. Adyanthaya who had alleged to have examined the deceased.
6. Mr. Shah, learned senior counsel appearing for defendant nos. 4 and 5 submits that in the Will dated 9 th August, 1995 executed by the deceased, the doctor's certificate is also typed.
There is certificate on page 6 of the said Will certifying that the deceased was in sound state of health and mental condition and is thus required to be examined. Learned senior counsel submits that the examination of Doctor as a witness is necessary for deciding the issue raised in the above matter. It is submitted that the plaintiffs have not examined the Doctor, defendant nos. 4 and 5 ::: Downloaded on - 27/11/2013 20:27:34 ::: .. 6 .. CST-126.2012.sxw who are beneficiaries under the said will and testament be permitted to examine the doctor. Learned senior counsel invited my attention to the additional issue framed by this court on 11 th March, 2005 which reads as under :
"Do the caveators/defendants prove that the execution of the Will was obtained by undue influence and that the Will is unnatural?"
7. Learned senior counsel submits that the doctor's certificate on the said will is not marked so far. It is submitted that the final arguments have not commenced so far. The evidence of Doctor is relevant evidence and is required to be led for proving physically sound and disposing state of mind of the testator and also to prove the date of Will. He submits that to avoid multiplicity and since final arguments have not yet commenced, no prejudice would be caused to defendant nos. 1 to 3 if defendant nos. 4 and 5 are allowed to examine the doctor. It is submitted that the petitioners are professional writers of the Will and have ::: Downloaded on - 27/11/2013 20:27:34 ::: .. 7 .. CST-126.2012.sxw no vested interest. It is submitted that since the petitioners have not chosen to examine doctor who had issued certificate on the Will after examining the testator, defendant nos. 4 and 5 who are beneficiaries and who are supporting the petitioner are entitled to examine the doctor. It is submitted that testamentary petition is filed by the executors for obtaining probate of the Will by which various legacies are bequeathed by the testator in favour of the beneficiaries. It is submitted that ultimately rights of defendant nos. 4 and 5 would be prejudiced if the doctor is not allowed to be examined. Learned senior counsel submits that the defendant no. 1 can be allowed to cross examine the witness. The learned senior counsel submits that if the defendant nos. 1 to 3 also seek to examine any witness, even those defendants also can be permitted to lead evidence. It is submitted that additional issue framed by this court caste burden on the caveator/defendants to prove that the execution of the Will was obtained by undue influence and that the Will is unnatural. It is submitted that defendant nos. 1 to 3 had made statement not to lead any evidence since the said Will ::: Downloaded on - 27/11/2013 20:27:34 ::: .. 8 .. CST-126.2012.sxw was not marked as exhibit. It is submitted that since defendant nos.
4 and 5 have made out a case for marking the Will, if the Will is marked by this court, no prejudice would be caused to defendant nos. 1 to 3 if defendant Nos. 4 and 5 are allowed to lead evidence of the doctor.
8. Mr. Shah, learned senior counsel submits that under Order 18 rule 2 of the Code of Civil Procedure, the court can entertain any application for additional evidence, even at the stage when case is fixed for arguments. It is submitted that the court has inherent powers under section 151 of the Code of Civil Procedure, 1908, to permit the party to lead oral evidence, if it is found that the applicant is entitled to reliefs prayed for in the facts and circumstances of the case. The court is not powerless to grant relief if the ends of justice and equity demands under section 151 of the Code of Civil Procedure which are of wide scope and ambit. Mr. Shah, learned senior counsel placed reliance on the judgment of the Punjab & Haryana High Court in the case of Mam. Raj. Vs. Smt. Sabiri Devi and Others, AIR 1999 Punjab and Haryana 96 and ::: Downloaded on - 27/11/2013 20:27:34 ::: .. 9 .. CST-126.2012.sxw in particular paragraph 7 and 10 which read thus :
"7. Coming to the merits of these contentions, the first contention raised by the learned counsel for the petitioner with regard to the maintainability of the additional evidence merits rejection at the very out set, in view of the recent judgment rendered by this Court in the case,of Chandgi v. Mehar Singh, Civil Revision No. 2134 of 1997 decided on 12-3-1998 (reported in MANU/PH/0254/1998) wherein it has been held that the application for additional evidence, can be moved at any stage that is till the Court concerned becomes functus officio of the matter before it and signs the judgment finally determining the issues involved in the suit.
10. It is settled principle of law that the Court necessarily need not be guided by the provisions of law under which the application is made. The Court has to look into the contents of the application and the prayer made of such basis. What is to be seen is whether the applicant is entitled to the relief prayed for in the facts and circumstances of the case. The Court is not powerless to grant relief, if the ends of justice and equity demands because the powers vested in the Court under Section 151 of the C.P.C. are of wide scope and ambit. Reference in this regard can be made to the judgment in the case of Ankayya v. Subhadrayya MANU/TN/0199/1931 : AIR 1932 Mad 223 and Anumulasetti Venkateswara Rao v. Konduri Siraiah MANU/AP/0099/1978."
9. Mr. Shah also placed reliance on the judgment of the Punjab & Haryana High Court in the case of Chandgi Versus ::: Downloaded on - 27/11/2013 20:27:34 ::: .. 10 .. CST-126.2012.sxw Mehar Chand and Others, AIR 1998 Punjab and Haryana 197 in support of his submission that till judgment is pronounced, the court is not functious officio and thus the application for leading additional evidence at the stage when case was pending for pronouncement of judgment is permissible. Reliance is placed on paragraph Nos. 7 and 8 which read thus :
"7. On the application of the well settled principles of law governing the subject, I find it very difficult to hold that the judgment is not a recognised stage of the proceedings in a suit. Section 2(a) of the Code defines the judgment as statement given by the judge of the grounds of decree and order. The legal cannotation of judgment is the declaration or final determination of rights of the parties in the matter before the Court. Even in common parlance the expression 'judgment' is understood to pui an end at least at some stage to the lis between the parties.
Hearing of a suit would have to be understood in the context, where the Court fixes a date for some acts to be done by either parties, while the stage or a later stage of a suit would be a stage till the pronouncement of judgment when the court is funclus officio of the case before it.
8. In view of the above legal position, now I advert to the merits of the present case. The application filed by the defendants-applicants for leading additional evidence has been allowed by the ::: Downloaded on - 27/11/2013 20:27:34 ::: .. 11 .. CST-126.2012.sxw learned trial Court in spite of the fact that the case was pending for pronouncement of judgment. The reasoning given by the trial Court does not suffer from any patent jurisdictional error."
10. Learned senior counsel submits that even under Order 41 Rule 27 (1)(b) the court can allow party to lead evidence even at that stage for any substantial cause. Order 41 Rule 27(1)(b) reads thus :
"R.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) ......
(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 examined."
11. Mr. Makhija, learned counsel for defendant nos. 1 to 3 in reply submits that defendant nos. 4 and 5 are not propounder of the Will and has no say in the matter. If the petitioner has not ::: Downloaded on - 27/11/2013 20:27:34 ::: .. 12 .. CST-126.2012.sxw examined the doctor to prove the health and disposing mind of the testator, defendant nos. 4 and 5 cannot examine the Doctor. It is submitted that defendant nos. 4 and 5 have no locus to examine the doctor. It is submitted that defendant nos. 4 and 5 had repeatedly made statement before this court that they did not propose to file any written statement and did not wish to lead any oral evidence. This court has recorded the said statement made by defendant nos. 4 and 5. It is submitted that even when order dated 21st Mach, 2011 passed by R.Y. Ganoo,J., directing the office to place the matter for final arguments, defendant nos. 4 and 5 did not seek liberty to lead any oral evidence or to examine the doctor.
12. It is submitted by Mr. Makhija that the Doctor was not the attesting witness and would not be able to depose on the issue as to when the date was put by the attesting witness. He submits that the executors have to prove the will and not the beneficiary. It is submitted that the plaintiffs had taken out chamber summons (60 of 2011) for recalling a witness examined by the plaintiffs. Even at ::: Downloaded on - 27/11/2013 20:27:34 ::: .. 13 .. CST-126.2012.sxw that stage, when order was passed on 10 th June, 2011 by this court, permitting the plaintiff to recall the attesting witness, defendant nos. 4 and 5 did not seek permission to lead evidence of the doctor.
13. By a separate order passed by this court, the Will executed by the deceased has been marked as exhibit. Various documents produced by the witnesses of the petitioners to prove execution of the Will are already marked as exhibits. It is true that the defendant nos. 4 and 5 had made a statement that they did not propose to lead any oral evidence as they were supporting the plaintiffs/petitioners. It is not in dispute that after the order passed by R.Y. Ganoo,J., on 21st March, 2011 directing the office to place the mater on board for final arguments, the petitioners had filed Chamber summons inter alia praying for recalling the attesting witness. Even at that stage, this court by passing an order on 10 th June, 2011, in the interest of justice and to find out the truth permitted the petitioners to recall the attesting witness though the ::: Downloaded on - 27/11/2013 20:27:34 ::: .. 14 .. CST-126.2012.sxw matter was directed to be placed on board for final arguments after evidence of the plaintiffs as well as defendant nos. 1 to 3 was closed. The said order passed by this court on 10 th June, 2011 is in force. An appeal filed by defendant nos. 1, 2 and 3 has been dismissed by this court as not maintainable. Pursuant to the said order dated 10th June, 2011, plaintiffs had recalled the attesting witness. Defendant nos. 1 to 3 have cross examined the attesting witness pursuant to the last opportunity granted by this court by order dated 10th June, 2011.
14. After hearing the learned counsel for parties on the issue of marking the Will, I have also heard their submissions on this chamber summons filed by defendant nos. 4 and 5. Since by separate order passed by this court, I have marked the Will in question as exhibit, in my view, no prejudice would be caused to defendant nos. 1 to 3 if defendant no. 4 is permitted to examine the doctor who was alleged to have issued certificate after examining the testator that he was of sound and disposing mind.
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15. Merely because the plaintiffs have not examined the
doctor, defendant nos. 4 and 5 who are the beneficiaries under the said Will and are ultimately going to be affected by any order passed by this court, in my view, cannot be refused an opportunity to lead oral evidence even at this stage to prove that the deceased testator was in sound and disposing state of mind at the time of executing will. The Petitioners are professional writers of the Will and have no personal interest. The executors have to act for the benefit of legatees/beneficiaries. On the contrary the interest of the beneficiaries is larger than the interest of the executors in this case who are professional writers. The beneficiaries are entitled to prove their case independently by examining the doctor since the plaintiffs have not proposed to examine the doctor. In my view, Mr. Makhija, the learned counsel for defendant nos.1 to 3 is not correct in his submission that defendant nos. 4 and 5 have no locus to examine the doctor and the same can be done only by the petitioners being executors.
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16. It is not in dispute that this court had permitted the plaintiffs to recall the attesting witness inspite of closure of evidence after giving opportunity to defendant nos. 1 to 3 to cross examine the said attesting witness on recall which opportunity was exercised by defendant nos. 1 to 3.
17. Defendant nos. 1 to 3 who had not examined any witness so far, in view of the Will not having been marked as exhibit earlier, since this court has now marked the will in question as exhibit, defendant nos. 1 to 3 may also lead oral evidence if they so desire, which witnesses can be cross examined by the plaintiff and defendant nos. 4 and 5. If defendant nos. 4 and 5 are also allowed to lead oral evidence of Doctor at this stage who is alleged to have issued certificate, no prejudice would be caused to the defendant nos. 1 to 3. Defendant nos. 1 to 3 would be entitled to cross examine the doctor. The relevance of the evidence would be considered at the stage of final arguments.
18. In my view, under section 151 of the Code of Civil ::: Downloaded on - 27/11/2013 20:27:34 ::: .. 17 .. CST-126.2012.sxw Procedure, the court has ample power to permit the party to lead additional evidence before the suit is finally heard. Under Order 41 Rule 27(1)(b) even the appellate court may allow any witness to be examined to enable it to pronounce judgment or for any substantial cause. In this case, final arguments have not yet commenced. Interest of both the parties would be protected if defendant nos. 1 to 3 and defendant nos. 4 and 5 are allowed to lead evidence. I am in agreement with the principles laid down by the Punjab & Haryana High Court in the judgment referred aforesaid.
19. I, therefore, pass the following order :
(a) Defendant nos. 4 and 5 are permitted to examine Dr. R.V. Adyanthaya with liberty to defendant nos. 1 to 3 to cross examine the said witness.
(b) Defendant nos. 1 to 3 are also permitted to examine any witness with liberty to plaintiff and defendant nos. 4 and 5 to cross examine such witness.::: Downloaded on - 27/11/2013 20:27:34 :::
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(c) Defendant nos. 4 and 5 are permitted to file affidavit in
lieu of examination in chief of Dr. R.V. Adyanthaya within four weeks from today. After evidence of the Dr. R.V.Adyanthaya is closed, defendant nos. 1 to 3 may file affidavit in lieu of examination in chief if they so desire of their first witness within four weeks from the date of the closure of evidence of Dr. R.V.Adyanthaya.
(d) Chamber summons is disposed of in the aforesaid terms.
There shall be no order as to costs.
(R.D.DHANUKA, J.) ::: Downloaded on - 27/11/2013 20:27:34 :::