Calcutta High Court
Pradeep Kumar Jeloka (Deceased) vs Unknown on 23 June, 2008
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
PLA No. 1 of 2008
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE
IN THE GOODS OF :
PRADEEP KUMAR JELOKA (DECEASED)
BEFORE:
The Hon'ble JUSTICE SANJIB BANERJEE
Date : 23rd June, 2008.
Mr. D. Basak, Advocate appears.
The Court :- The anomaly was noticed only when the papers were otherwise (surprisingly) found to be in order by the department to be placed for signature of the Judge. In accordance with the practice of this Court and the rules framed on the Original Side an application for grant of Probate, if uncontested and in order, need never appear before a Judge in Court and after scrutiny of all documents the papers is presented only for the final signature of the Judge in chambers. Such power is exercised by the interlocutory Judge.
Upon the papers relating to the present application for grant of Probate being presented for signature, it appeared that the application was sought to be made by the constituted Attorney of the alleged propounder. The matter was thereafter placed before Court. In course of the adjournments granted from time to time, the matter was dismissed for default. It was restored last week 2 and directed to appear today. It appears that the alleged propounder is a resident of Wakefield, Massachusetts in the United States of America and he has appointed one Amit Kumar Kanodia as his constituted Attorney. The purported Power of Attorney bears the signature of Notary Public of Massachusetts, but is not authenticated by any clerk or countersigned on behalf of the Indian Embassy or Consulate. The application is styled, before the averments therein, in the following words :-
"The humble petition of Satish Deorah, son of late Sahadeolal Deorah residing at Rajnigandha, 25, Ballygunge Park Road, Kolkata - 700 019 being the constituted Attorney of Amit Kumar Kanodia, son of Sri Roshan Lal Kanodia residing at 8, Crescent Hill, Wakefield, Massachusetts 01880, U.S.A. as the Sole Executor of the last Will and Testament dated 23rd March, 2000 of the deceased abovenamed ..................."
It is submitted on behalf of the alleged propounder that the petition should be read as one on behalf of the named Executor and that the petition has been erroneously made on behalf of the alleged constituted Attorney. It is submitted that it would appear from the verification at page 6 of the petition that it was intended to be made on behalf of the alleged executor and Satish Deorah had merely indicated that he was the constituted Attorney of the alleged executor.
3The Power of Attorney on which the petitioner relies appears at annexure C. As noticed above it only bears a scribble by way of signature and the stamp is of Raghida Awde described as the Notary Public, Commonwealth of Massachusetts whose term as Notary Public runs still September 11,2014.
The petitioner states that in view of the judgements reported at AIR 1967 Cal 636 and AIR 2006 Cal 158, and in view of the fact that there is no opposition to the grant, the Court should accept the Power of Attorney to have been validly made and the Court should lean in favour of the validity of the document rather than question it. It is submitted that the application is also accompanied by the declaration made by one alleged contesting witnesses and is otherwise in order.
Section 85 of the Evidence Act, inter alia, provides as to the presumption of a foreign Power of Attorney. Courts in India shall presume that every document purporting to be a Power of Attorney and to have been executed before and authenticated by a Notary Public to be valid upon the Indian Consul or Vice-Consul or representative of the Central Government authenticating the document. Despite several adjournments in this matter, no attempt was made to obtain any authentication of the Power of Attorney by the Indian Embassy in Washington or by any person who may have been delegated such authority in law.
4
In the judgement reported at AIR 1967 Cal 636 it would appear from paragraph 4 of the report that the notarial act was certified by the County clerk of the Supreme Court, New York County and was certified by the Consulate General of India in New York for legalising the seal of the clerk of the County of New York. There was not only the stamp of the Notary Public, such stamp was authenticated by the office of the Supreme Court, New York County which in turn had been authenticated by the relevant Indian official in the Embassy or the Consulate.
In the judgement reported at AIR 2006 Cal 158, reliance has been placed on the earlier judgement of 1967 at paragraph 36 of the report. The matter in issue was as to the acceptability of an affidavit that had been placed before Court and which had been challenged as to its veracity. In connection with the various judgements noticed, reference was made to the 1967 case in the context of the Court leaning in favour of an act done by a foreign notary.
For the Court to take notice of the document and to assume the validity thereof and for the presumption to arise under Section 85 of the Evidence Act, the document has to be authenticated by the Indian Consul or relevant Indian authority. Ordinarily, in the absence of such an authentication the Court will not receive the document or lean in favour of its validity. 5
In the present case, the petitioner was also afforded a chance to lead the American law by way of evidence as the law of the foreign land may be received in evidence. Nothing was forthcoming on the law of the United States or of the relevant State of the United States as to the authority of Notary Public and the validity of the document presented.
There is also a minor matter of the handwritten portion on the first page of the petition not being initialled whether by the petitioner or by the Commissioner of Oaths. As to the declaration of one of the attesting witnesses, it is trite that without the same the petition could not have been made. The second attesting witness, however, has not affirmed any affidavit or made any declaration though a declaration by one of the two attesting witnesses to the will would suffice.
For the reasons above, it does not appear that the application was made in order or that the application had the necessary material in support thereof warranting the making of an order as prayed for. PLA 1 of 2008 is dismissed with costs assessed at 2000 GMs. It will, however, be open for the rightful person to obtain Probate or Letters of Administration, in accordance with law, of the same Will which was put up by way of the present proceedings.
The holder of the alleged Power of Attorney who had presented the papers and who had affirmed the affidavit in support of the 6 application will be at liberty to collect the original Will from the department upon presentation of a photostat copy thereof duly certified as true copy by the advocate-on-record and on an undertaking by way of indemnity to be furnished in favour of the Registrar, Original Side that upon the original Will being lost or any claim being made in respect thereof such holder of the alleged Power of Attorney shall remain liable therefor.
Urgent certified photostat copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(SANJIB BANERJEE, J.) skc