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2016 DIGILAW 1021 (CAL)

Saraj Kumar Chatterjee v. Tridib Kumar Sarkar

2016-12-15

ARIJIT BANERJEE

body2016
JUDGMENT : ARIJIT BANERJEE, J. 1. The present application has been filed in a proceeding for grant of probate of a Will and Testament dated 31 August, 1988 claimed to be executed by one Saraj Kumar Chatterjee who passed away on 3 September, 1988. The petitioner is one of the joint executors named in the said Will. The other executor expired during the pendency of the probate application. The main prayers made in the present application are as follows:- "(a) Leave be given to serve subpoena upon Sri Partha Dutta, Senior Manager, Punjab National Bank, Ballygunge Branch to produce the original full signature of Late Saroj Kumar Chatterjee of 143A, Rash Behari Avenue, Kolkata from the custody of the Bank in this Hon'ble Court; (b) Third Handwriting expert be appointed from the panel of the High Court with a direction to inspect the signature of Late Saroj Kumar Chatterjee appearing in the Will of Saroj Kumar Chatterjee dated 31st August, 1988 being the subject matter of the instant suit and Will dated 30 August, 1988 the subject matter of Matter No. 107A of 1991 against the original signature of Late Saroj Kumar Chatterjee produced from the custody of Punjab National Bank and take photographs thereof and submit his opinion on the same." 2. During the pendency of the present probate proceeding, one Sabitri Banerjee applied for probate of another Will of the said deceased, dated 30 August, 1988. The propounder of the said prior Will was the sole beneficiary and executrix thereunder. On 11 December, 1997, the said earlier Will was probated in favour of the said Sabitri Banerjee, since deceased. 3. The application for probate of the later Will dated 31 August, 1988, was contested by one Dr. Gopal Mitra by filing caveat and an affidavit in support thereof. Dr. Gopal Mitra passed away on 6 September, 2015. Presently the legal heirs of Dr. Gopal Mitra being his wife and two sons are contesting the probate application. 4. In the course of the present probate proceeding, two Handwriting experts were appointed, one at the instance of each party, to examine and express their opinion about whether or not the signature of the testator appearing on the Will dated 31 August, 1988 is genuine. Both the Handwriting experts opined that the signature on the said WILL is not of the testator. 5. Mr. Both the Handwriting experts opined that the signature on the said WILL is not of the testator. 5. Mr. Utpal Bose, Learned Senior Counsel for the petitioner submitted that one of the beneficiaries under the said Will, namely, Bharat Sevashram Sangha has recently been able to ascertain that the deceased had fixed deposits and a locker in his name with the Punjab National Bank, Ballygunge Branch. He submitted that the genuine signature of the testator is lying in the custody of the said Bank. Accordingly, this application has been made for leave to serve subpoena upon the Senior Manager of the said Bank to produce the original full signature of the testator from the custody of the Bank and to appoint a third Handwriting expert from the panel of the High Court to compare the signature of the testator appearing on the Will in question and the signature of the testator on the Will dated 30 August, 1988 with the original signature of the testator produced from the Bank's custody and to give a report as regards the genuineness or otherwise of the testator's signature on the will in question. 6. Mr. Dhruba Ghosh, Learned Senior Counsel appearing for the defendant submitted that O. 18 R. 17A of the CPC which pertains to production of evidence not previously known or which could not be produced despite due diligence, has been deleted by the CPC (amendment) Act, 1999. Hence, the present application is not maintainable. Mr. Ghosh then submitted that evidence has been closed and notes of arguments have been filed. The present application has been made at this belated stage only to fill up a lacuna in the evidence of the plaintiff. This is not permissible. The concerned fixed deposits were part of the affidavit of assets and at all material times were known to the plaintiff. There is no justification for making the present application at this belated stage. No new facts have emerged which may justify filing of the present application. He further submitted that there is no way to certify that the signature in the records of the Punjab National Bank is the authentic signature of the testator. The defendants do not admit the genuineness of such signature. Hence, comparison with such signature will be an exercise in futility. He further submitted that there is no way to certify that the signature in the records of the Punjab National Bank is the authentic signature of the testator. The defendants do not admit the genuineness of such signature. Hence, comparison with such signature will be an exercise in futility. He submitted that two hand writing experts have opined that the signature on the Will dated 31 August, 1988 is not that of the testator. The present application is speculative and a shot in the dark. 7. Mr. Ghosh relied on a decision of the Hon'ble Apex Court in the case of Bagai Construction-vs.-Gupta Building Material Store, (2013) 14 SCC 1 , wherein the Hon'ble Apex Court indicated the circumstances in which the power under O. 18 R. 17 of the CPC to recall and examine a witness may be exercised. He submitted that such power should not be exercised in a routine manner but sparingly and only when the Court deems it necessary for clearing some doubt regarding the evidence already adduced by a witness. The circumstances of the present application do not call for exercise of such power, contended Mr. Ghosh. 8. In reply, Mr. Bose, Learned Senior Counsel submitted that the present application is not one under O. 18 R. 17 of the CPC. Hence, the decision of the Hon'ble Supreme Court relied on by Mr. Ghosh would have no manner of application. He further submitted that the probate of the Will dated 30 August, 1988 was obtained behind the back of the plaintiff. The plaintiff had no opportunity of contesting such proceeding. Although the Court by granting probate accepted the signature on the earlier Will to be the genuine signature of the testator, the same cannot be binding on the plaintiff and the plaintiff does not admit the authenticity of such signature. The reports of the two hand writing experts are not conclusive since the same were based on a comparison of the testator's signature on the later Will with his signature on the earlier Will. Hence, the Punjab National Bank should be directed to produce the signature of the testator from its records and a third hand writing expert should be appointed to compare the testator's signature on the Will dated 31 August, 1988 with the admitted signature of the testator which is to be produced by the Bank. 9. Hence, the Punjab National Bank should be directed to produce the signature of the testator from its records and a third hand writing expert should be appointed to compare the testator's signature on the Will dated 31 August, 1988 with the admitted signature of the testator which is to be produced by the Bank. 9. I have carefully considered the rival contentions of the parties. I am not inclined to allow the present application for the reasons that follow. 10. It is not in dispute that an earlier Will of the testator, dated 30 August 1988, has been admitted to probate by this Court. By granting probate, this Court has accepted the authenticity and/or genuineness of the signature of the testator on the said earlier Will. The appeal against the order granting probate to the earlier Will was dismissed. The applicant/plaintiff appears to have been a party to the said appeal. No Special Leave Petition was preferred against the order of the Division Bench. Hence, the finding that the signature of the testator on the earlier Will was authentic/genuine has attained finality. It is well-known that a probate operates in rem. It binds the whole world. (See Smt. Rukmani Devi-vs.-Narendra Lal Gupta, (1985) 1 SCC 144 ). Hence, the finding of this Court that the signature on the earlier Will is needed that of the testator binds the present appellant/plaintiff. There is no further scope for disputing the genuineness of such signature. Both the handwriting experts have taken into consideration the testator's signature on the earlier Will while filing their reports. The reports have gone against the plaintiff. In my opinion, at this stage there is no further scope for appointing a third handwriting expert to consider the signature lying in the records of the Punjab National Bank which the plaintiff claims is the undisputed signature of the testator. The defendants, of course, dispute the authenticity of such signature. There is no guarantee that the plaintiff will not file an application for appointment of a fourth handwriting expert in the event the report of the third handwriting expert also goes against him. This may continue ad infinitum. That cannot be allowed. 11. The application for grant of probate of the Will dated 31 August, 1988 was filed in 1990 i.e. 26 years ago. The proceeding was marked as a contentious cause in 2006. This may continue ad infinitum. That cannot be allowed. 11. The application for grant of probate of the Will dated 31 August, 1988 was filed in 1990 i.e. 26 years ago. The proceeding was marked as a contentious cause in 2006. Since then, ten long years have gone by. Mr. Ghosh submitted and which was not disputed by Mr. Bose that evidence was concluded in the year 2010, the suit was argued before three Learned Judges but for some reason or the other hearing could not be concluded and notes of arguments have been filed. It is highly desirable that the suit comes to a logical conclusion at an early date. There is no sufficient explanation as to why the present application has been filed as such a belated stage. It is evident that the plaintiff has filed this application to try and fill up a lacuna in the evidence adduced by the plaintiff. The same cannot be permitted at this stage of the suit. The inherent power of the Court to allow a party to adduce fresh evidence after evidence is closed and arguments have begun, should be exercised carefully and sparingly depending on the facts of a case to do complete justice between the parties. Such power ought not to be exercised to enable a party to try and improve its case at this advance stage of the suit. I am inclined to agree with Mr. Ghosh's submission that this application is speculative. The plaintiff is merely taking a chance to see if he can improve his case. 12. It is true that the present application is strictly not one under O. 18 R. 17 of the CPC. But in my opinion similar considerations would apply to the present application as would apply to an application under O. 18 R. 17. Hence, it cannot be said that the decision of the Hon'ble Apex Court in the case of Bagai Construction (supra) is not relevant for the present purpose. In that case, the Hon'ble Apex Court extracted paragraph 19 of its judgment in the case of K.K. Velusamy-vs.-N. Palanisamy, (2011) 11 SCC 275 , which reads as follows:- "19. We may add a word of caution. The power under Section 151 or Order 18 Rule 17 of the Code is not intended to be used routinely, merely for the asking. We may add a word of caution. The power under Section 151 or Order 18 Rule 17 of the Code is not intended to be used routinely, merely for the asking. If so used, it will defeat the very purpose of various amendments to the Code to expedite trials. But where the application is found to be bona fide and where the additional evidence, oral or documentary, will assist the court to clarify the evidence on the issues and will assist in rendering justice, and the court is satisfied that non-production earlier was for valid and sufficient reasons, the court may exercise its discretion to recall the witnesses or permit the fresh evidence. But if it does so, it should ensure that the process does not become a protracting tactic. The court should firstly award appropriate costs to the other party to compensate for the delay. Secondly the court should take up and complete the case within a fixed time schedule so that the delay is avoided. Thirdly if the application is found to be mischievous, or frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs." 13. In Bagai Construction (supra) the Hon'ble Apex Court further observed that though power under Sec. 151 can be exercised if the ends of justice so warrant and to prevent abuse of process of court and court can exercise its discretion to permit reopening of evidence (emphasis is mine) or recalling of witness for further examination/cross-examination after evidence has been laid by the parties, if the new documents are sought to be introduced by way of reopening the evidence, which were available through-out the trial, the power under Sec. 151 of the CPC should not be exercised. In the present case, there is no explanation as to why the plaintiff did not seek to tender the document in the custody of the Punjab National Bank at the evidence stage or soon thereafter if necessary by causing subpoena to be served on the Bank. The facts of the present case do not warrant exercise of the Court's inherent power to allow the plaintiff to reopen the evidence. 14. In view of the aforesaid, this application fails and is dismissed, however, without any order as to costs. 15. Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities.