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2005 DIGILAW 726 (CAL)

KRISHNA PROSAD CHATTERJEE v. SATYEN CHAKRABORTY

2005-12-07

ASHIM KUMAR BANERJEE

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Ashim Kumar Banerjee ( 1 ) ONE Nagendra Bala Devi died leaving a Will. The applicant claims to be the propounder of the said Will. According to the applicant he was the "viksha putra" of the deceased whereas the opposite party submits that he was the lawyer of the deceased. ( 2 ) HOWEVER, Mr. Roy Chowdhury, learned Counsel appearing for the petitioner strongly objects to the above fact being recorded as according to him the aforesaid fact has not found place in any of the pleadings. ( 3 ) AFTER the death of the testatrix her daughter-in-law Smt. Ashalata ganguly sold the property belonged to the deceased to the opposite party by a deed of sale. When the probate proceeding was initiated Ashalata initially contested the said probate proceeding by filing written objection. However, during the pendency of the probate proceeding she died. The opposite party wanted to participate in the said proceeding stepping into the shoes of the ashalata. The issue was once brought to this Court by way of a revisional application which was disposed of by an order dated August 7, 2004 appearing in pages 25-28 of the present application. While disposing of the said application His Lordship observed that since Ashalata filed written objection before the Court below, the opposite party would have to base his objection on that and he would not be entitled to file any fresh objection. The opposite party was however granted leave to disclose documents ''in respect of any contention". The relevant paragraph of His Lordship's judgment is quoted below :"however as I have already held that they cannot be permitted to file written objection on their own therefore, must not proceed on the basis of the written objection already filed on behalf of the Ashalata Ganguly. However, if it is necessary in the interest of justice to produce any document in respect of any contention, the opposite parties may be permitted to produce the same and the learned Court below shall consider the same in accordance with law. Since the probate proceeding is pending since 1993 it is expected that the learned Court below shall dispose of the same as expeditiously as possible but preferably within a period of eight months from the date of communication of this order. Since the probate proceeding is pending since 1993 it is expected that the learned Court below shall dispose of the same as expeditiously as possible but preferably within a period of eight months from the date of communication of this order. " ( 4 ) AFTER the said order was passed at the argument stage the opposite parties filed an application before the Court below disclosing inter alia, the title deeds by which the property was conveyed to him by Ashalata. The admissibility of those documents was questioned before the Court below by the applicant herein as according to him in a probate proceeding the title deed in question would have no bearing as the Probate Court has neither any requirement nor has competency to decide the testator's title over the immovable property. The probate Court is only to see whether the Will was actually executed by the testator or not and if so whether he was in sound mind and did so on his own volition. ( 5 ) THE learned Judge while considering the issue observed that the Court could not go into the question of title of the testator as it was to decide only whether the instrument was testamentary or not or whether the Will was genuine or not. The learned Judge also held that the deeds in question even if admitted in evidence would have little probative value in the instant case. Even after observing as such the learned Judge allowed those documents to come in evidence on the basis of the petition filed by the opposite parties. ( 6 ) MR. S. P. Roy Chowdhury, learned Counsel appearing for the petitioner in support of the application submits that once the Court found that the documents were of little probative value in the matter of testamentary proceedings concerning a Will of the testatrix the learned Judge should not have directed documents to come in evidence and that too without having any formal proof. ( 7 ) I am in full agreement with Mr. Roy Chowdhury's contention to the effect that the learned Judge once observing that the documents were of little probative value should not have allowed the documents to come in evidence without assigning any specific reason therefor. That way the order, in my view, is wrong. ( 7 ) I am in full agreement with Mr. Roy Chowdhury's contention to the effect that the learned Judge once observing that the documents were of little probative value should not have allowed the documents to come in evidence without assigning any specific reason therefor. That way the order, in my view, is wrong. The learned Judge should have assigned reasons as to why he allowed documents to come in evidence and that too without having any formal proof. ( 8 ) I however, intend to view this problem from another angle. In a probate proceeding, ordinarily the heirs on intestacy were served with the citation so that they can come before the Probate Court and object to the probate being granted if they so chose. In this peculiar case Ashalata was served with the citation. She was contesting the proceeding. Unfortunately she died before the proceeding could reach its finality. Ashalata transferred her interest in the property in favour of the opposite party thinking that she was the sole owner of the property after the demise of Nagendra Bala as if there had been no Will. When the Will was brought in Court by the applicant as propounder asking for a probate on the said Will, Ashalata filed her objection. Hence after the death of Ashalata the opposite party was allowed by this Court earlier to contest the proceeding. To contest the said proceeding by stepping into the shoes of Ashalata, in my view, it would be necessary for the Court to find out whether the opposite party has any interest at all in the estate of the deceased. To find out that the deed of sale is the only document to be looked at. It is true, that the deed of sale would not ultimately be of any relevance in the matter of execution of the Will. However, to consider the objection of the opposite party and his locus to contest the said probate proceeding, the said document should come in evidence and I do not find any reason to disagree with the ultimate order passed by the Court below. However, to bring on record a document unless both the parties agree the document has to come through the procedural channel as prescribed in evidence law and for that a formal tender by the opposite party is necessary. However, to bring on record a document unless both the parties agree the document has to come through the procedural channel as prescribed in evidence law and for that a formal tender by the opposite party is necessary. The learned Court should allow the document to come in through a formal tender by allowing the opposite party to call their witness only for the said limited purpose. ( 9 ) EARLIER this Court directed expeditious disposal of the suit. Hence, it is expected that the learned Judge would expedite hearing of the suit without granting any unnecessary adjournment to the parties. ( 10 ) WITH these observations, this revisional application being C. O. 2559 of 2005 is disposed of without any order as to costs. Urgent xerox certified copy of this order, if applied for, shall be given to the parties expeditiously. Ashim Kumar Banerjee, J. : revisional application disposed of.