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2015 DIGILAW 477 (GAU)

Surjya Baro v. Urmila Das

2015-04-23

NISHITENDU CHAUDHURY

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JUDGMENT : Nishitendu Chaudhury, J. 1. Heard Mr. D.K. Bordoloi, learned counsel for the appellants and Ms. S. Chakraborty, Legal Aid Counsel on behalf of the respondents. This first appeal depicts a very sorry state of affairs in the original jurisdiction of learned District Judge. A probate proceeding was instituted by three sons of Late Abhoy Baro stating that Abhoy Baro died on 21.04.2001 leaving behind three sons and three daughters. The three daughters have been named and their addresses have been furnished in paragraph 8 of the application. The three sons of the deceased claimed that deceased Abhoy Baro executed a registered Will bequeathing all his properties in favour of them and thus three daughters mentioned in paragraph 8 of the application were disinherited. The application was accompanied by verification of one attesting witness apart from affidavit filed by one of the petitioners. A copy of the Will was also annexed to the application along with death certificate of Abhoy Baro. 2. Upon such application being filed, Probate Case No. 232 of 2003 was registered. Two daughters, namely, Pramila Baro and Bimala Kalita appeared and submitted affidavit stating that they have no objection if the Will is probated. But the third daughter, namely, Urmila Das submitted written statement objecting to the probate prayer and stated that no such Will was ever executed by the testator and that execution, if there be any, was due to undue influence. The objector, therefore, prayed that the application for probate be rejected. In view of the contentions raised by the objector, the proceeding was converted in the form of a suit and this is how probate Case No. 232 of 2003 was registered. 3. In course of trial, the learned counsel for the petitioners submitted as many as 6 (six) sets of examination in chief on behalf of PW 1 to PW 6 including two attesting witnesses as PW 5 and PW 6. But incidentally none of these so called examinations in chief were actually sworn before Notary Public or Sherestadar of the Court and so technically there was no affidavit within the meaning of Order XVIII Rule 4 of the Code of Civil Procedure. These statements were submitted on 04.03.2004 before the learned District Judge and it went unnoticed that the affidavits were not in form and virtually there was no affidavit. These statements were submitted on 04.03.2004 before the learned District Judge and it went unnoticed that the affidavits were not in form and virtually there was no affidavit. Even thereafter the learned court presumed the same to be examination in chief on behalf of petitioner and fixed the case for cross examination of the PWs. Subsequently, PW 1 to PW 5 were cross examined being oblivious of the fact that there was no examination in chief on record. However, P W 6 Tankeswar Deka failed to subject himself for cross examination for which his examination in chief was expunged. The learned Additional District Judge, Ad-hoc No. 4 before whose court the proceeding was going on thereafter took up the matter for argument and passed judgment on 31.08.2006 rejecting the prayer for probate. It is at this stage only it came to notice to the learned Presiding Officer of this Court that none of the witnesses of the petitioner had at all sworn any affidavit before any authority as required by law and so legally and technically there was no examination in chief on record. Be that as it may, the cross examinations were done on of the of the PW 1 to PW 5. Having realised that there was no examination in chief on behalf of plaintiffs/petitioners, the learned District Judge did not grant any opportunity to the parties to lead proper evidence but dismissed the probate case holding that petitioners failed to prove their case in accordance with law. It is unfortunate to note here that the learned counsel for the petitioner might have committed mistake in filing statements of the witnesses before getting the same sworn before a competent authority. It was the duty of the learned court to return the same to the petitioner for swearing affidavit in accordance with law so that it could become evidence within the meaning of Order XVIII Rule 4 of the Code of Civil Procedure. Had the court noticed this anomaly at the threshold and returned the papers to the party, the subsequent exercises going for long period could have been averted. Probate application deals with a solemn intention of a deceased and such an intention of deceased needs to be dealt with far more care and caution. Had the court noticed this anomaly at the threshold and returned the papers to the party, the subsequent exercises going for long period could have been averted. Probate application deals with a solemn intention of a deceased and such an intention of deceased needs to be dealt with far more care and caution. Virtually in the case in hand, the petitioners were under the impression that they have adduced evidence and that is why the witnesses of the petitioners were subjected for cross examination and they were duly cross examined. While their cross examination part may be evidence within the meaning of law but the so called examination in chief is no evidence in the eye of law for absence of swearing. 4. Considering the entirety of circumstances, this court feels that it would be just and proper to remand the matter to the learned trial court for giving scope to the parties to lead evidence in accordance with law and thereafter to decide the case afresh as otherwise it would be sheer injustice to the litigants. The litigants may not be aware of the intricacies of law but the learned counsel representing the parties and the Presiding Officer of the court cannot be absolved for such reckless mistake and negligence. Virtually, there was no trial before the learned trial court and so the impugned judgment and order has been vitiated for total non-application of mind at all levels. The impugned judgment and order is accordingly, set aside. The matter is remanded to the court of the learned District Judge, Kamrup for proper trial and decision in accordance with law. Parties shall appear before the learned District Judge on 18th May, 2015. In the mean time, Registry shall transmit the records to the Court of the learned District Judge at Kamrup. No order as to costs.