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2016 DIGILAW 157 (GAU)

Rama Bhoumik @ Smti. Rama Mukherjee v. Mitra Mukherjee @ Smti. Ratna Mukherjee

2016-03-01

N.CHAUDHURY

body2016
JUDGMENT AND ORDER : N. Chaudhury, J. This is an application under section 115 of the Code of Civil Procedure read with Article 227 of the Constitution of India challenging the order dated 15.11.2014 passed by the learned District Judge, Sonitpur in Title Suit (P) No. 43/2010 rejecting the application of the present petitioner filed under Order 7, Rule 11 of the Code of Civil Procedure. By the same order, the learned court also recorded that the learned counsel for the defendant side has refused to cross examine the witnesses on being asked to do so and accordingly the case was fixed for cross examination of one witness, namely, Dr. Suren Gogoi only and refusing to allow cross examination of the other witnesses for whose presence the defendant wanted to pay the cost. 2. The brief facts involved in the present revision petition may be necessary for understanding the basic purpose for which purported application under Order 7, Rule 11 of the Code of Civil Procedure was rejected by the learned trial court. The opposite party as an executor filed application under Section 276 of the Indian Succession Act, 1925 (hereinafter referred to as 'the Act') stating that Dr. Soumendra Mohan Mukherjee, who had died on 10.06.2009, had executed a WILL on 18.11.2006 bequeathing all his movable and immovable properties in favour of the executrix and accordingly the application was filed for getting probate. Paragraph 5 and 7 of the probate application are relevant for the purpose of the present proceeding and accordingly the same are quoted below:- "5. That said Dr. Soumendra Mohan Mukharjee husband of the petitioner left a writing written with his own hand on 18th day of November, 2006 in presence of witnesses being his last WILL and testament out of his free WILL and consent and without any undue influence and coercion from any quarter and by the said WILL and testament he has appointed the petitioner as the executrix of the said WILL. 7. That by the said WILL the deceased Soumendra Mohan Mukharjee bequeathed and devised all his movable and immovable properties, Estates and assets to and in favour of the petitioner and has appointed her as the executrix of the said WILL." 3. 7. That by the said WILL the deceased Soumendra Mohan Mukharjee bequeathed and devised all his movable and immovable properties, Estates and assets to and in favour of the petitioner and has appointed her as the executrix of the said WILL." 3. On being summoned, the present petitioner as the sole defendant appeared and submitted application contesting the claim and accordingly application was converted in the form of suit and re-numbered as Title Suit (P) No. 43/2010 of the said court. At the evidence stage when the plaintiff had already submitted examination-in-chief, the defendant filed an application under Order 7, Rule 11 of the Code of Civil Procedure praying for rejection of the plaint, inter alia, on the ground that the application does not disclose any cause of action. The said application has been annexed to the present proceeding as Annexure-6. In paragraph 4 of the application it is stated that the plaint is false, frivolous and vexatious because on a meaningful and not formal reading of the so called document annexed to the application, the same cannot be termed as a WILL at all and it does not come within the four walls of the Act. According to the defendant, it was a mere deed of settlement of immovable property and pension of Dr. Soumendra Mohan Mukherjee in favour of his second wife for depriving of his first wife who is none other than the answering defendant. In paragraph 5, it was stated that the WILL was a collusive one and a shammed document and was not immediately filed after death of the testator which smacks doubt about the whole thing. With these averments, it was prayed that the application filed under section 276 and registered as T.S.(P) No. 43/2010 or T.S.(P) 36/2010 is to be rejected in terms of law laid down by the Hon'ble Supreme Court in the case of T. Arivandandam Vs. T.V. Satyapal & anr. reported in AIR 1977 SC 2421 . The opposite party submitted an objection against the application under Order 7, Rule 11 of the Code of Civil Procedure wherein the allegations labelled by the defendant was repudiated. The learned court after hearing the parties passed his order dated 22.07.2015 whereby the application filed under Order 7, Rule 11 of the Code of Civil Procedure was rejected. The opposite party submitted an objection against the application under Order 7, Rule 11 of the Code of Civil Procedure wherein the allegations labelled by the defendant was repudiated. The learned court after hearing the parties passed his order dated 22.07.2015 whereby the application filed under Order 7, Rule 11 of the Code of Civil Procedure was rejected. The learned trial court considered the judgment of the Hon'ble Supreme Court in the case of T. Arivandandam Vs. T.V. Satyapal (supra) and noticed that a meaningful reading of the plaint is necessary before exercising jurisdiction under Order 7, Rule 11 of the Code of Civil Procedure and not a formal reading. Keeping the aforesaid law laid down by the Hon'ble Supreme Court in regard to the provision of Order 7, Rule 11 of CPC and after perusal of the provision of Section 276 of the Indian Succession Act, the learned trial court examined the plaint as to whether necessary averments as to execution of WILL was there in the plaint. The learned trial court found that in paragraph 5 of the petition, averment has been specifically made that late Dr. Soumendar Mohan Mukharjee had executed WILL on 18.11.2006 bequeathing properties to the plaintiff. The learned court also noticed that issue No. 4 has already been framed in the case in regard to the validity of the WILL. Issue No. 4 is also quoted as follows:- "Whether the WILL in question is genuine or not?" Having considered the averments made in the plaint and the issues framed, the learned trial court was of the considered opinion that it is not a fit case for rejecting the plaint and the point raised can be decided at the time of trial of the proceeding. Thereafter, the learned counsel for the defendant was asked to cross examine the witness present in the court that day and the defendant was given the right to examine only one witness, namely, Dr. Suren Gogoi. This judgment and order passed on 22.07.2015 has been called in question in the present revision petition. 4. I have heard Mr. N. Dhar, learned counsel for the petitioner and Mr. S.K. Singh, learned counsel for the sole opposite party. I have perused the documents annexed to the revision petition to understand the respective cases of the parties. 5. Mr. This judgment and order passed on 22.07.2015 has been called in question in the present revision petition. 4. I have heard Mr. N. Dhar, learned counsel for the petitioner and Mr. S.K. Singh, learned counsel for the sole opposite party. I have perused the documents annexed to the revision petition to understand the respective cases of the parties. 5. Mr. N. Dhar, learned counsel for the petitioner, would argue that apparently from the perusal of the plaint it is clear that the opposite party is none other than the second wife during the life time of the first wife and so she was not a wife at all. The opposite party herein, therefore, is not entitled to any right to inherit the property of the deceased and so the WILL in question is not a valid WILL. He further argued that the WILL in question being a legal declaration within the meaning of Section 2(h) of the Act, it does not satisfy the definition as the beneficiary of the WILL though described as second wife but was not a wife at all. According to the learned counsel, the WILL was not a WILL but it is a settlement of the property in favour of the opposite party. 6. Per contra, Mr. S.K. Singh, learned counsel for the sole opposite party, would argue that in deciding an application under Order 7, Rule 11 of the CPC, court is not required to enter into the merit of the case. The court is duty bound to see as to whether necessary averments in the plaint are there. If on bare perusal of the plaint it appears that cause of action has not been disclosed or that it is barred by a law in that event, the court shall reject the plaint in exercise of power under Order 7, Rule 11 of the CPC. But in the present case, the defendant has been arguing as to the validity of the WILL itself. Whether the WILL was validly executed or not WILL be the subject matter of the probate proceeding and not the subject matter of an application filed under Order 7, Rule 11 of the Code of Civil Procedure. 7. But in the present case, the defendant has been arguing as to the validity of the WILL itself. Whether the WILL was validly executed or not WILL be the subject matter of the probate proceeding and not the subject matter of an application filed under Order 7, Rule 11 of the Code of Civil Procedure. 7. Having learned the learned counsel for the parties and having perused decision relied on by them it appears that the point for determination in the case is the impugned order dated 22.07.2015 has been correctly filed by the learned trial court in exercise of power under Order 7, Rule 11 of the Code of Civil Procedure. It is settled law that while deciding an application under Order 7, Rule 11 of the Code of Civil Procedure on the ground that cause of action has not been disclosed, the court is not required to go into any other document other than the plaint. Even consideration of written statement and/or evidence adduced by the parties would not be necessary for deciding an application under Order 7, Rule 11(a) of the CPC. Even the learned counsel for the petitioner has placed reliance on the case of T. Arivandandam Vs. T.V. Satyapal & anr., AIR 1977 SC 2421 where the Hon'ble Supreme Court held in paragraph 5 as follows: "5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful - not formal - reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7, Rule 11, C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clear drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10, C.P.C. An activist Judge is the answer to irresponsible law suits. And, if clear drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10, C.P.C. An activist Judge is the answer to irresponsible law suits. The trial Courts would insist imperatively on examining the party at the first hearing so that bogus litigation cam be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men, (Ch. XI) and must be triggered against them. In this case, the learned Judge to his cost realised what George Bernard Shaw remarked on the assassination of Mahatma Gandhi "It is dangerous to be too good." 8. The aforesaid judgment of the Hon'ble Supreme Court laying down the law of Order 7, Rule 11 has been followed by the Hon'ble Supreme Court in subsequent judgments. In the case of Saleem Bhai and ors. Vs. State of Maharashtra and ors. reported in (2003) 1 SCC 557 , the same law has been reiterated by the Hon'ble Supreme Court in paragraph 9 and the same is quoted below for ready reference. "9. A perusal of Order 7, Rule 11 C.P.C. makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power under Order 7, Rule 11 C.P.C. at any state of the suit - before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under Clauses (a) and (d) of Rule 11Order 7 C.P.C., the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under Order 7, Rule 11 C.P.C. cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court. The order, therefore, suffers from non-exercising of the jurisdiction vested in the court as well as procedural irregularity. The High Court, however, did not advert to these aspects." 9. Similarly in the case of Sopan Sukhdeo Sable and ors. Vs. Assistant Charity Commissioner and ors. reported in (2004) 3 SCC 137 , the Hon'ble Supreme has relied on the case of Saleem Bhai and ors. The High Court, however, did not advert to these aspects." 9. Similarly in the case of Sopan Sukhdeo Sable and ors. Vs. Assistant Charity Commissioner and ors. reported in (2004) 3 SCC 137 , the Hon'ble Supreme has relied on the case of Saleem Bhai and ors. (supra) in paragraph 10 and reiterated the same view again. Paragraph 10 of the case of Sopan Sukhdeo Sable and ors. (supra) is quoted below:- "10. In Saleem Bhai and Ors. Vs. State of Maharashtra and ors., it was held with reference to Order 7, Rule 11 of the Code that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial Court can exercise the power at any stage of the suit - before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under Clauses (a) and (d) of Order 7, Rule 11 of the Code, the averments in the plaint are the germane: the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage." 10. Thus, there is no doubt that an application under Order 7, Rule 11(a) of the Code of Civil Procedure has to be decided on the basis of the averment made in the plaint only. This is an application under section 276 of the Act praying for probate and the ingredients of the application are also laid down therein. An application under section 276 must contain the time of testator's death, that the writing annexed is his last WILL and testament, that it was duly executed the amount of assets which are likely to come to the petitioner's hands and petitioner must be the executor in the WILL. Having perused the application filed under section 276 of the Act, it appears that all the information required to be filed under section 276 have been duly mentioned. Even in paragraph 5 of the application it is specifically stated that testator executed his last WILL on 18.11.2006 bequeathing all his movable and immovable properties in favour of the executrix. Having perused the application filed under section 276 of the Act, it appears that all the information required to be filed under section 276 have been duly mentioned. Even in paragraph 5 of the application it is specifically stated that testator executed his last WILL on 18.11.2006 bequeathing all his movable and immovable properties in favour of the executrix. It is mentioned in the same paragraph that the WILL was executed out of his free WILL and consent and without any undue influence and coercion from any quarter and that the opposite party herein was appointed as the executrix of the WILL. In paragraph 7, it is stated that testator had bequeathed and devised all his movable and immovable properties, estates and assets to and in favour of the executrix. 11. Whether an application under section 276 of the Act is to be rejected under Order 7, Rule 11 of the Code of Civil Procedure or not, is to be decided as to whether the ingredients mentioned in the said section have been pleaded in the application or not. If on bare perusal of the application it appears that a prima facie case has been made out by mentioning as to execution of WILL, appointment of executor and bequeathing of property and also the value of the property, in that event that WILL would amount to substantial compliance of Section 276 of the Act. In that event question of applying power under Order 7, Rule 11 of the Code of Civil Procedure would not arise in such case. Considering the same in view, it is clear from perusal of the application in the present case that all the necessary averments have been made. It is claimed that a WILL has been executed by the testator in favour of the executor on 18.11.2006 without being influenced or coerced by any one. The averment as to appointment of executor has been made and under such circumstances, it appears that the application under section 276 contains all the ingredients necessary for maintaining a probate application. Whether there was really a WILL or it was a shammed document is a matter to be considered after trial of the proceeding and not while deciding an application under Order 7, Rule 11 of the Code of Civil Procedure. Whether there was really a WILL or it was a shammed document is a matter to be considered after trial of the proceeding and not while deciding an application under Order 7, Rule 11 of the Code of Civil Procedure. The learned trial court has considered all aspects of the matter and after due application of mind rejected the application under VII Rule 11 of the Code of Civil Procedure and as such there is no scope to interfere with the same in exercise of revisional jurisdiction. This part of the judgment accordingly is upheld. 12. At that stage, Mr. N. Dhar, learned counsel for the petitioner, would argue that the defendant has been deprived the right of cross examine the witnesses and this amounts to miscarriage of justice. He has drawn attention of the court to the fact that the defendant wanted to make payment of cost for the witnesses for coming to the Court but even that prayer of the defendant was turned down by the learned trial court. Having heard the learned counsel for the petitioner and having perused the order, it appears that since the learned court already permitted cross examination of Dr. Suren Gogoi who is one of the witnesses, in that event, ends of justice would be satisfied if the petitioner is permitted to cross examine other witnesses as well at her cost. It is accordingly ordered that on next day fixed for appearance of the parties, an order shall be passed by the learned trial court directing the plaintiff to produce the witnesses in one fixed day as per convenience of the parties and thereupon the defendant shall be permitted to cross examine the same. Parties shall appear before the learned trial court on 8th April, 2016 for fixing date of cross examination of the witnesses. 13. Civil revision petitioner stands disposed of.