Telangana High Court
Dr.Subhalakshmi Atmaram Jaiswal vs Mr.Rahul Asoorya And 3 Others on 12 January, 2024
THE HONOURABLE SMT. JUSTICE K. SUJANA
CIVIL REVISION PETITION No.821 of 2023
ORDER:
Aggrieved by the order dated 01.02.2023 in I.A.No.1689 of 2022 in O.S.No.1009 of 2014 passed by the Court of learned XI Additional Chief Judge, City Civil Courts, Hyderabad, the present Civil Revision Petition is filed.
2. I.A.No.1689 of 2022 is filed under Section 151 of CPC read with Section 65 of the Indian Evidence Act not to mark the copy of alleged will deed dated 28.05.1996 in the suit. The petitioners therein submitted that petitioner No.1 therein is the defendant No.1 in the main suit seeking recovery of possession of the schedule property based on the alleged will deed dated 28.05.1996 vide Judgment of Probate dated 29.04.2006 in C.M.A.No.138 of 1999 passed by the Civil Judge, Senior Division, Sholapur. He further submitted that the plaintiff filed chief affidavit and list of documents including copy of alleged probate will, dated 28.05.1996. The forged and fabricated will brought on record through written statement filed by defendant.
3. The petitioner herein filed counter stating that the present petition is at premature stage of marking of 2 SKS,J C.R.P.No.821 of 2023 documents on behalf of P.W.1. A certified copy of Will deed dated 28.05.1996 is intended to mark by the petitioner vide application No.138 of 1999 is allowed on 29.04.2006. Thereafter, no appeal is preferred and the first appeal was disposed off on 20.08.2011, subsequently, the defendants have filed restoration petition and it is pending and the Original Will dated 28.05.1996 is under the Custody of the Hon'ble High Court of Bombay by virtue of the First Appeal. He further submitted that since CMA.No.138 of 1999 is pending, the plaintiff filed rejoinder. The genuineness appeal is not in dispute before Sholapur Court. Thereby, a certified copy of Will was marked. He filed the present petition seeking not to mark a copy of Will which cannot be entertained at this preliminary stage and it is liable to be dismissed. The trial Court after hearing on both sides, allowed the petition stating that only the original will can to prove or disprove their contents, not its certified copy. Hence, the present Civil Revision Petition.
4. Heard Sri Sujith Jaiswal, learned counsel for the revision petitioner as well as Sri K. Rajendran, learned counsel for the respondents.
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5. Learned counsel for the petitioner submitted that Will is not a private document when it is after the probate. The Probate Court has been conferred with an exclusive jurisdiction to probate of the will of the deceased annexed to the petition, on grant or refusal thereof, it has to preserve the original will produced before it. The grant of probate is final subject to appeal, if any, or revocation if made in terms of the provisions of the Succession Act. It is a judgment in rem and conclusive and binds not only the parties but also the entire world. As such, in view of the observation of the trial Court in the impugned order that Will deed dated 28.05.1996 is a private document and the certified copy cannot marked etc., is erroneous.
6. Learned counsel for the petitioner further submitted that as already the probate has been issued in respect of Will dated 28.05.1996 by a competent Court at Sholapur, Maharashtra, it cannot be rejected for marking, as such, prayed the Court to set aside the order of the trial Court by allowing this Civil Revision Petition.
7. On the other hand, learned counsel for the respondents relied on the judgment of various High Courts and the Hon'ble Supreme Courts according to probate granted in other State 4 SKS,J C.R.P.No.821 of 2023 is not a finding, even though it is a probate taken contemplates the will, as such, prayed the Court to dismiss the Petition.
8. Having regard to the rival submissions made by both the learned counsel and having gone through the material available on record, the present petition is filed not to mark the document, which is filed along with the chief affidavit of P.W.1 in O.S.No.1009 of 2014. The trial Court discussed the validity of the document and the objection for marking of document has to be taken at the stage of marking of the documents. The document was not yet numbered to mark the evidence. Mere marking of document does not mean to prove all the contents. It is at premature stage to discuss about the validity of the document. Any document accepted in the Court has to be proved by the party. Therefore, before taking the document as evidence, the trial Court went on discussing about the contents of documents whether it is a public document or a private document. Since it is not the stage to discuss about the validity of documents, whether it proves the plaintiff' case, the trial Court erred in entertaining the petition filed for praying the Court not to mark the said document. This Court, without expressing any opinion with 5 SKS,J C.R.P.No.821 of 2023 regard to the validity and proof of document, deems it appropriate to set aside the order of the trial Court as it is a premature stage and an objection for marking of the document has to be taken at the time of marking the documents and it is not the stage to discuss all about the proof.
9. With the above observation, this Civil Revision Petition is allowed setting aside the order of the trial Court dated 01.02.2023 in I.A.No.1689 of 2022 in O.S.No.1009 of 2014 passed by the Court of learned XI Additional Chief Judge, City Civil Courts, Hyderabad. Further, the trial Court is directed to dispose of the case as expeditiously as possible. There shall be no order as to costs.
As a sequel, miscellaneous petitions, pending if any, shall stand closed.
______________ K.SUJANA, J DATE: 12.01.2024 SAI 6 SKS,J C.R.P.No.821 of 2023 371 THE HONOURABLE SMT. JUSTICE K. SUJANA CIVIL REVISION PETITION No.821 OF 2023 Date: 12.01.2024 SAI