Calcutta High Court
Sunil Krishna Mitra vs Debasish Kumar Sinha & Anr on 17 December, 2009
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
GA No. 2262 of 2009
PLA NO. 359 OF 2008
IN THE HIGH COURT AT CALCUTTA
Testamentary and Intestate Jurisdiction
IN THE GOODS OF:NARENDRA NATH MITRA
SUNIL KRISHNA MITRA
Versus
DEBASISH KUMAR SINHA & ANR.
For the propounder Petitioner : Mr. Ratnanko banerjee, Mr. A. Mitra. Advs.
For the Respondent : Mr. S. N. Mitra, Mr. Raja Basu Chowdhury,
Advs.
BEFORE:
The Hon'ble JUSTICE SANJIB BANERJEE Date : 17th December, 2009.
The Court : This is an application for examining on commission a person claimed to be the surviving attesting witness to an alleged Will.
The propounder says that the Will was executed in the year 1960 and that the application for grant of probate was made only in the year 2008. The grant is opposed by a grandson through a daughter of the alleged testator and it is such grandson who opposes the present application.
In connection with the application for grant of probate, an affidavit of the alleged attesting witness has been relied upon. Such affidavit appears to have been affirmed on September 24, 2008. The respondent says that nothing in paragraphs 8, 9 and 10 of the affidavit in support of the summons would show that the condition of the alleged attesting witness had deteriorated to such extent that he would be unable to come to Court. The point that the respondent seeks to make is that since the alleged attesting witness was fit and able to affirm the affidavit in 2 September, 2008 in the Court house there is nothing that the applicant has shown to demonstrate that the said attesting witness is no longer fit to travel to Court to be examined.
The applicant has relied on medical certificates most of which date back to September, 2008 and dates prior to the date of affirmation of the affidavit of the alleged attesting witness. There is only one document of June, 2009 which is the patient discharge summary issued by a hospital which says that the alleged attesting witness had been admitted in the hospital for a couple of days.
The respondent has referred to two judgments reported at AIR 24 Cal 971 and 28 CWN 327. The respondent says that unless a clear case is made out of the inability of a witness to attend court, a witness is ordinarily not permitted to be examined on commission since the witness stepping into the witness box in court has a particular significance and further since the demeanor of the witness can be assessed by the Court. Such aspect has been emphasized in the judgments relied upon by the defendants.
It is of the significance that the respondent has brought judgments going back to the 1920s when a suit would be tried within months of its institution.
The practical aspect of the matter is that the suits are today tried many years after their institution. It is unlikely that in the usual course an action instituted in this Court in the year 2008 will be brought to trial immediately. It is the propounder's case that the witness was aged 78 years when the application for grant of probate was made and the witness is now 80 years old. In the circumstances, particularly when there is some record of the witness being unwell, it would take something more than merely citing the witness box and the demeanor for the respondent to deny the prayer that is made on behalf of the propounder. Though the respondent suggests that 3 the alleged attesting witness may be examined de bene esse, that would imply that the trial Judge would not have the advantage of gauging the demeanour of the witness.
GA No. 2262 of 2009 is disposed of by permitting the propounder to carry this order for the purpose of mentioning the matter before the regular Suit Court with a prayer for this matter to be taken up expeditiously. If it is not convenient or otherwise not possible for the alleged attesting witness to be examined within a period of six weeks from now, provided that the matter is mentioned within a week from date, then Mr. Rajarshi Dutta, Advocate will proceed as Commissioner for the purpose of examining the alleged attesting witness Subrata Basu in terms of prayer (a) of the Master's Summons.
The Commission should be completed within a period of eight weeks from the Commissioner taking up the matter. The Commissioner will be paid a consolidated remuneration of 2000 GM to be paid by the propounder. The costs of the Commission will abide by the result of the probate proceedings.
There will be no order as to costs.
Urgent certified photocopies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(SANJIB BANERJEE, J.) kc.
AR(CR)