Calcutta High Court
Sant Agarwal vs Rabi Sinha on 19 July, 2017
Author: Sahidullah Munshi
Bench: Sahidullah Munshi
ORDER SHEET
GA 648 of 2017
TS 6 of 2009
IN THE HIGH COURT AT CALCUTTA
Testamentary & Intestate Jurisdiction
ORIGINAL SIDE
IN THE GOODS OF:
AKHILES KUMAR SINHA, DECEASED
-AND-
SANT AGARWAL-VS-RABI SINHA
BEFORE:
The Hon'ble JUSTICE SAHIDULLAH MUNSHI
Date : 19th July, 2017.
Appearance:
Mr. Goutam Chakraborty, Adv.
Mr. Kinjal Kumar Boral, Adv.
...for the appellant/defendant Mr. Aniruddha Mitra, Adv.
Ms. S. Bhattacharya, Adv.
...for the plaintiff The Court : This G.A. No.648 of 2017 has been filed by the defendant Rabi Sinha praying for a direction for recalling of plaintiff's witness Sant Agarwal for further cross-examination by the defendant's counsel on the specific points as prayed for in the petition. According to the defendant/petitioner, the specific points are mentioned in paragraph 10 of the petition affirmed by Rabi Sinha on 22nd February, 2017. Paragraph 10 of the said petition is set out below : 2
"10. The defendant states that the questions which are required to be asked in cross-examination to Mr. Sant Agarwal relates to execution and signing of blank documents described hereinbefore between Akhilesh Kumar Sinha and Radha Rani Sinha on the one hand and Smt. Saroj Agarwal on the other hand and handing over of Rs.2,50,000/- by way of premium towards tenancy right granted in favour of the said two Agarwals in respect of the first floor of premises No.FD-347, Salt Lake City, Kolkata - 700091 and certain related questions which are extremely vital questions."
The defendant stated that "the questions which are to be asked in cross- examination to Mr. Sant Agarwal relates to execution and signing of blank documents described hereinbefore between Akhilesh Kumar Sinha and Radha Rani Sinha on the one hand and Smt. Saroj Agarwal on the other hand and handing over of Rs.2 Lakh 50 Thousand by way of premium towards tenancy right granted in favour of the said two Agarwals in respect of premises No. FD 347, Salt Lake City, Kolkata - 700091 and certain related questions which are extremely vital." Before dealing with the petition filed by the defendant for the purposes as aforesaid, it is required to deal with the rival claim of the plaintiff and defendants in short.
Plaintiff, Sant Agarwal, filed P.L.A. 189 of 2002 praying for probate of the last Will of Dr. Akhilesh Kumar Sinha. Probate petition was filed on 24th June 2002. Defendant filed caveat on 20th August, 2002. According to the plaintiff, 'Will' was executed on 24th December, 1987. In the said Will the testator appointed Sant Agarwal and failing him Shri Mohabir Prasad Agarwal, as executors and trustees of the Will. The said Sant Agarwal is the propounder in this proceeding. The present proceeding relates to the probate of Dr. Akhilesh 3 Kumar Sinha. In the Will it has been mentioned that the testator bequeathed all his right, title and interest in the property to Smt. Saroj Agarwal, wife of Shri Sant Agarwal and Smt. Asha Agarwal, wife of Shri Mohabir Prasad Agarwal. From the declaration of assets affirmed by Sant Agarwal on 10th June, 2002 it appears that undivided one-half share in the first floor of a three-storied building and the undivided share of the land proportionate thereto being Plot No.347, Block F.D., Sector - III, Salt Lake City, Kolkata - 700091 is the subject matter in the Will. The defendant Rabi Sinha has disputed the genuineness of the Will. He said that the Will was not executed by his father and the signature must have been procured by practicing fraud by Sant Agarwal, alleged executor and his advocate. He has also raised other points with regard to the genuineness of the Will. In the affidavit it has been mentioned that his father was not aware of the contents of the purported Will inasmuch as there was no reasons as to why his father would bequeath valuable properties to Smt. Saroj Agarwal and Smt. Asha Agarwal who were subsequently, allegedly, inducted as tenants. The purported tenancy agreement is also a product of fraud and such agreement could not be made in the year 1987 in the stamp paper purchased by S. M. Soni, advocate, on September, 30, 1988. Besides the purported tenancy agreement, it would be evident that the same is also a fraudulent one as the same would be corroborated from paragraph 1 thereof. It has been mentioned that from a plain reading of the said purported tenancy agreement it would be evident that entire first floor measuring 1,600 square feet was allegedly let out on rent of Rs.1,250/- per month and the purported rent was to be adjusted from the interest @ 6% per 4 annum to be accrued on the non-refundable advance of Rs.2,50,000/- only. According to him, purported tenancy agreement was obtained for a period of 99 years and for which no consideration for payment of rent inasmuch as non- refundable advance never carries interest and it is absurd to suggest that same would be adjusted towards rent. In other words after about 16.6 years the tenants would enjoy the demised premises without paying any occupation charges. According to him, purported tenancy agreement for 99 years being the effect of a lease, the same is non-est being not registered as provided in Transfer of Property Act. He has stated that he would take necessary steps for eviction of Smt. Saroj Agarwal and Smt. Asha Agarwal, alleged tenants. According to the caveator, purported Will is an unnatural one and is a product of fraud which will be corroborated from the fact that so long his mother was alive no application for probate was made inasmuch as the testator had no absolute right to bequeath the property which would be evident from rate tax bills issued by Bidhan Nagar Municipality in the name of Akhilesh Kumar Sinha and others.
In the present case, it appears from the record that plaintiff has adduced three witnesses, namely, Pranab Sinha, an attesting witness, Rabi Kumar Todi and Sant Agarwal, the executor in the Will, have been examined. Examination-in- chief was closed and the learned counsel for the defendant submits that the whole purpose of filing the application (G.A. 648 of 2017) is for admission of two documents, namely, DD II and DD III appearing at pages 16 to 30 being undated agreement in the year 1988 made between Akhilesh Kumar Sinha and Smt. Radha Rani Sinha, jointly referred to as assignor and Smt. Saroj Agarwal and 5 Smt. Asha Agarwal jointly referred to as assignee and an undated Deed of Lease made between Akhilesh Kumar Sinha and Smt. Radha Rani Sinha, jointly referred to as the landlord and Smt. Saroj Agarwal and Smt. Asha Agarwal, jointly referred to as tenants as appearing at page 31 to 42 of the Judge's Brief of document. These two documents are the documents disclosed by the defendants and the same have been included in the Judge's Brief of documents. Two other documents, namely, profit and loss account for the year 1989-90, balance-sheet as on 31.03.1989 (1989-90) of Smt. Asha Agarwal and profit and loss account for the assessment year 1989-90 as appearing at pages 15 and 16 of the reply filed by the petitioner to the affidavit-in-opposition of the plaintiff.
Mr. Goutam Chakraborty, learned counsel appearing in support of the application submits that, although, cross-examination is closed but for the purpose of putting certain questions which by mistake on the part of the counsel was omitted and, although, he put the peripheral questions on the subject which is now seeking to ask the plaintiff's witness Sant Agarwal on further cross- examination will not be totally contrary to what was asked on the earlier occasion. Mr. Chakraborty submits that Order XVIII, Rule 17 of the Code of Civil Procedure (hereinafter referred to as the said 'Code') gives ample power to the Court to recall any witness at any stage if the Court is satisfied that certain relevant questions may be asked to the witness on recall and answer to those questions may be very much relevant for proper adjudication of the lis. Although, no averment has been made in the application as to what are the left out questions proposed to be put in cross-examination to the witness on recall but in 6 course of argument Mr. Chakraborty has handed up a copy of the proposed questions which are six in numbers, a copy whereof has also been handed over to Mr. Mitra, learned counsel appearing for the plaintiff. According to Mr. Chakraborty, such questions ought to have been asked to the witness before closing of cross-examination but on the fault of the learned advocate who was cross-examining the witness, did not ask the questions. Therefore, he submits that the witness may be recalled and the questions may be allowed to be asked. The questions proposed to be asked relates to the said documents being balance- sheet and profit and loss account appearing at page 15 and 16 of his reply affirmed on 11th May, 2017. Mr. Chakraborty has relied on various decisions in order to justify the prayer made in his application for recalling of the witness.
Mr. Aniruddha Mitra, learned counsel appearing for the plaintiff strenuously opposed the prayer of Mr. Chakraborty for recalling of the witness for further cross-examination. He submits that even if such prayer is considered that can only be considered for a limited extent. The defendant, after cross- examination, cannot pray for recalling of the witness to fill up his lacuna. According to Mr. Mitra, even if the application filed by Mr. Chakraborty's clients is taken into consideration, he has made a prayer for recalling of the witness for the purpose of re-examination on the specific points raised in paragraph 10 in the application. According to Mr. Mitra, paragraph 10 deals with the documents which are already on record as DD II and DD III. Therefore, according to Mr. Mitra, these two documents can be tendered by the defendant through his 7 witness and it is premature at this stage to pray before the Court for admission of those two documents.
Mr. Mitra further submits that so far page 15 and 16 of the reply as aforesaid is concerned, those are unsigned documents and have been manufactured by the defendant after the closure of cross-examination of the plaintiff's witnesses. He submits that, although, a Xerox signature appears on the alleged balance-sheet but there is no signature on the profit and loss account relating to the assessment year of 1989-90. Therefore, these documents, according to Mr. Mitra, cannot be tendered through plaintiff's witness unless it is proved that plaintiff's witness is the author of those documents. According to Mr. Mitra, simply because the names of Asha Agarwal and Saroj Agarwal have been typed on the said two pages, they are not under any obligation to answer to the said documents. Mr. Mitra submits that, although, the petitioner prayed for production of the documents under Order XII, Rule 3 of the Code but there cannot be any occasion for production of such document as his client is not the author of the document, nor those documents are in his custody. Those apart, it is the specific case of Mr. Mitra that, although, he has alleged in paragraph 7 of his opposition that the said two documents appearing at page 15 and 16 of the reply of the petitioner has been manufactured, the petitioner has avoided to controvert the same and he has made only evasive denial thereof. Mr. Mitra has also submitted that in the application petitioner has not made out a positive case by saying that these documents annexed to his reply were found at a subsequent date, no averment appears to have been made by the petitioner in his 8 application. Therefore, in his reply he has made out a case which cannot be considered at this stage and the petitioner is not to be allowed to improve his case in his reply. Court may not allow the petitioner to put any question to plaintiff's witness on the said two documents annexed to the affidavit-in-reply. Mr. Mitra also submits that it is surprisingly noted that no explanation has been offered by the petitioner in his application with regard to the delay in non- disclosure of the said documents if at all, those have been found subsequent to the closure of the cross-examination of the plaintiff's witness. It is always accepted that party should show his due diligence to disclose a document before the Court and he must come with a plausible explanation as to why there has been such a delay in furnishing the documents at the right time.
In support of his case Mr. Chakraborty has relied on the following decisions in the case of -
• A.E.G. Carapiet - Vs. - A.Y. Derderian, reported in AIR 1961 Cal 359;
• Salem Advocate Bar Association Tamil Nadu - Vs. - Union of India, reported in AIR 2005 SC 3353;
• K.K. Velusamy - Vs. - N. Palanisamy, reported in (2011) 11 SCC 275;
• Sisir Kumar Bhattacharjee & Gautam Bhattacharjee, reported in 2015 (2) CHN (CAL) 497;
• Arabind Shaw Alias Arvind Shaw - Vs. - Ajay Kumar Shaw & Ors., reported in (2015) 4 WBLR (CAL) 102 and 9 • Ram Rati - Vs. - Mange Ram (Dead) Through Legal Representatives & Ors., reported in (2016) 11 SCC 296.
Mr. Mitra has relied on a decision in the case of Vadiraj Naggappa Vernekar (Dead) Through LRs. - Vs. - Sharadchandra Prabhakar Gogate, reported in (2009) 4 SCC 410.
On consideration of the materials on record, application by the defendant, affidavit-in-opposition filed by the plaintiff and reply filed by Mr. Chakraborty's clients it appears that the scope of the present application is very limited. It has got two aspects -
i) To recall the witness, if at all permissible in law and
ii) To allow Mr. Chakraborty to make further cross-examination to such
recalled witness of the plaintiff.
If the witness is recalled, how far the defendant would be allowed to put questions for further cross, it depends upon the facts and circumstances of the case as also the questions already asked by Mr. Chakraborty to the witness, Mr. Sant Agarwal. Firstly, the proposed questions to be asked by Mr. Chakraborty on the document mentioned in paragraph 4 of his application whether can be permitted or not and whether such document has any relevancy in the present case in the context of the affidavit filed by the defendant is to be judged according to the defence taken by the defendant. The documents DD II and DD III are the documents of the defendant and there is no doubt that these documents can be tendered by Mr. Chakraborty at the time of examination of defendant's witnesses but question is whether these documents are of any importance in this case to 10 confront with the plaintiff's case. If the document has got such a value to contradict the case of the plaintiff and if the defendant has sufficiently pleaded on the basis of such document then of course, the defendant has a right to ask questions to the witness on the said document. Now, questions arise at what stage the plaintiff should ask the question as Mr. Mitra pointed out that the defendant can tender these documents or even the document can be admitted into evidence and may be marked as an Exhibit but how far that will help Mr. Chakraborty to confront with the document vis-à-vis the Will executed by the testator. Had these proposed questions been asked by Mr. Chakraborty in cross- examination of Mr. Sant Agarwal, to my opinion, Mr. Mitra would not have any objection or he could not have made any objection to put such questions to his witnesses. Therefore, simply because Mr. Chakraborty has failed to ask the witness during cross-examination certain questions relating to the said two documents whether that will totally deprive the defendant to confront with the said two documents during cross-examination of the witness. It is settled law that during cross-examination the defendant can always be permitted to confront with any document in relation to which the plaintiff has any connection in the suit filed by him. If the said document has any kind of relation with the plaintiff's case the document can be confronted with by the defendant during cross-examination of the plaintiff's witness. Now, the question arises whether at this stage Mr. Chakraborty should be allowed to put questions for further cross-examination of Mr. Sant Agarwal. The situations which a Court is required to visualize are whether the defendant has made inordinate delay after 11 the cross-examination is closed to make a prayer for recalling of witness to introduce certain other questions; whether such delay is fatal that by no stretch of imagination the defendant can be allowed to recall the witness for cross- examination; whether any man of ordinary prudence can come to a conclusion that the defendant might have manufactured certain documents and he is trying to introduce a new fact through the witness of the plaintiff.
So far the first situation is concerned, regarding delay, this can be overcome by the defendant by payment of cost. So far the second instance is concerned, the delay can be condoned by the Court by imposing penal cost but so far the third instance is concerned, the same cannot be allowed under any circumstances if the Court has any amount of suspicion in its mind to hold that there may be a chance of manufacturing the document. From the trend of the cross-examination so far made by Mr. Chakraborty, particularly the question no.171 is concerned, it mentions about the undated agreement and also the relation between such undated agreement and the Will made by the testator. Therefore, it will be prudent to hold that the defendant should be allowed to put questions on the said undated agreement being DD II and DD III of the Judge's Brief of document.
In my opinion, submission made by Mr. Mitra that the document can be tendered through the defendant's witnesses, is undoubtedly true but the defendant will not get any chance to confront the plaintiff's witness on the question of the said undated agreement if the said witness is not recalled. I have already stated that had such questions been asked at the appropriate time 12 perhaps, the plaintiff could not have any occasion to raise objection which he proposes to raise now. Therefore, the defendant may be permitted to recall the said witness for putting relevant questions on the said documents. The relevancy of the questions to be put in by Mr. Chakraborty on the said two documents DD II and DD III will be considered by the Court at the time when further cross- examination will be conducted by Mr. Chakraborty and Mr. Mitra will be at liberty to raise objection to any irrelevant question / questions which may be asked by the learned counsel for the defendant at the time of such further cross- examination.
So far the other two documents, namely, page 15 and 16 of the affidavit-in- reply, according to Mr. Chakraborty, has got corroborative value to those of DD II and DD III. According to Mr. Chakraborty, these documents should also be allowed to be admitted into evidence. To this, I clearly disagree with the submission made by Mr. Chakraborty and I, accordingly, disallow Mr. Chakraborty's prayer that these documents should be admitted into evidence based on prayers made in the present application. Such prayer cannot be allowed if Mr. Chakraborty tenders the said two documents through his witnesses whether it will be admitted or not it depends upon many things when the documents will be tendered through the witness of the defendant but no question can be permitted to be made on the basis of the said two documents being page 15 and 16 of the affidavit-in-reply filed by Mr. Chakraborty's client. A document which per se has not been signed by Mr. Mitra's client, he cannot be compelled to answer to the said documents unless the witness has disclosed its source earlier 13 during cross-examination or the defendant gives suggestions over the source of the document. Questions would have been different if the same was an original one and if those documents would have been public documents or any other evidence were produced to which the said two documents could have had any link or relevancy.
The prayer for recalling of witness Sant Agarwal is allowed for further cross-examination for a very limited purpose as indicated hereinbefore.
The application being G.A. 648 of 2017 is disposed of. Parties shall bear their respective costs.
Let this matter be listed for hearing two weeks hence.
(SAHIDULLAH MUNSHI, J.) sp3