Mr. Jitendra Singh Rajendra Singh ... vs Mr.Mayur Khandeparkar I/By Nitin ...
2013 Latest Caselaw 119 Bom

                                                .. 1 ..                          tp-832.2010.sxw


hvn        




                                                                                      
                                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY.




                                                             
                               TESTAMENTARY & INTSTATE  JURISDICTION 

                                      PETITION NO. 832 OF 2010




                                                            
              Late  Shri. Rajendra  Singh Chhatrasal Singh
              Kushwaha alias Rajendra C. Kushwaha alias
              R.C. Kukshwaha of Mumbai, Hindu, Inhabitant,
              Widower, Occupation  Property Holder, residing
              at permanently at 381-A Kalbadevi Road,




                                                    
              Narottamwadi, 34rd Floor, Room No. 31 to34,
              Mumbai and residing at the time of his death at 502,
                                     
              Rajdeep Apartment,s 219, Tank Lane, 5th Floor,
              Santacruz (West), Mumbai 400 054                     ...   Deceased
                                    
                  1. Mr. Jitendra Singh Rajendra Singh Kushwah
                     of Mubai,  Hindu Inhabitant, permanently residing
                     at 381-A, Kalbadevi Road, Narrottam Wadi,
                    

                     3rd Floor, Room No. 31 to 34, 
                     Mumbai 400 002 and temporarily
                 



                     residing at 502, Rajdeep Apartments, 3/9, Tank
                     Lane, 5th Floor, Santacruz (West), Mumbai 400 054
                     being one of the Executors and Admnistrators
                     named in the last Will and Testament of the 





                     deceased abovenamed.

                  2. Mrs,. Suman Jitendra Singh Kushwaha
                     of Mumbai, Hindu Inhabitant, permanently
                     residing at 381-A,  Kalbadevi Road, Narottam 





                     Wadi, 3rd Floor, Room No. 31 to 34,
                     Mumbai 400 002 and temporarily
                     residing at 502, Rajdeep Apartments, 3/9, Tank
                     Lane, 5th Floor, Santacruz (West), Mumbai 400 054
                     being one of the Executors and Admnistrators
                     named in the last Will and Testament of the 
                     deceased aboveanamed. 




                                                              ::: Downloaded on - 27/11/2013 20:30:41 :::
                                             .. 2 ..                             tp-832.2010.sxw


         3. Miss Nisha Jitendra Singh Kushwaha of Mumbai,




                                                                                     
            Hindu, Inhabitant, permanently rsiding at 
            at 381-A, Kalbadevi Road, Narrottam Wadi,




                                                             
            3rd Floor, Room No. 31 to 34, Mumbai 400 002
            and temporarily residinga t 502, Rajdeep Apartments,
            3/9 Tank Lane, 5th  Floor, Santacruz (West), Mumbai
            400 054  being one of the Executors and Admnistrators




                                                            
            named in the last Will and Testament of the 
            deceased aboveanamed.

         4. Suresh Rajendra Singh Kushwaha,
            Hindu Inhabitant of Mumbai




                                                
            residing at 381, Kalbadevi Road,
            Narottamwadi, 34rd Floor, Room NO. 31 to 34,
                              
            Mumbai 400 002                          ...Caveators/defendants
                             
    Mr. Shailesh Shah, Sr. Advocate  along with Ms.  Mamta  Sadh i/by Zohair & 
    Co. for the Plaintiff/applicant. 

    Mr.Mayur Khandeparkar i/by Nitin Parkhe for respondent. 

CORAM : R.D.DHANUKA J.

                                       RESERVED ON       :  14 OCTOBER, 2013
                                       PRONOUNCED ON :  29 OCTOBER, 2013

    ORAL JUDGMENT :

Plaintiffs have filed an application for striking of the order deleting

paragraph 3, 4, 13 to 17 from the affidavit dated 18 th March, 2013 filed by

the defendant/caveator filed in lieu of examination in chief.

Defendant/caveator has filed affidavit in reply to this application.

2. Mr. Shah, learned senior counsel appearing for the plaintiff

invited my attention to paragraphs 3, 4, 13 to 17 of the affidavit in lieu of

.. 3 .. tp-832.2010.sxw

examination in chief filed by defendant on 18 th March, 2013. The learned

senior counsel also invited my attention to the issues framed by this court on

23rd August, 2012. The Testamentary petition was filed by the executor in

this court inter alia praying for probate in respect of the alleged will and

testament dated 10th May, 2006. This court has framed the following issues :

1. Whether the last Will and testament of the deceased, Rajendra Singh

Chhatrasal Singh dated 10th May, 2006 was validly executed.

2. Whether the deceased was in sound state of mind at the time of

execution of the Will.

3. What relief, if any, is the plaintiff entitled to?

3. Learned senior counsel submits that by an order dated 23 rd August,

2012 read with order dated 23rd January, 2013, plaintiff has been permitted

to lead evidence in rebuttal if required. Evidence of two additional witnesses

is complete. Learned senior counsel submits that in paragraph 3 and 4 of the

affidavit in lieu of examination in chief filed by the defendant, it is deposed by

defendant that the deceased parents were also staying with the plaintiffs

at Santacruz address since 1982 and not at the address mentioned by the

plaintiff. Learned senior counsel submits that paragraph 3 and 4 of the said

affidavit are not relevant or material in any manner for deciding the petition

.. 4 .. tp-832.2010.sxw

for probate. Whether the said deceased was staying at the address

mentioned by the plaintiff or at the address mentioned by the defendant is

irrelevant for the purpose of deciding whether the said deceased had validly

executed the Will and testament dated 10 th May, 2006 or whether he was in

sound state of mind at the time of execution of the Will. Learned senior

counsel submits that similarly in paragraphs 13 to 17 of the affidavit in lieu

of examination in chief, defendant has raised dispute in respect of certain

properties which according to defendant, the said deceased could not have

bequeathed. He submits that the issue of title cannot be decided by this court

in testamentary proceedings and thus evidence if any on the issue of title

would not be relevant or material in any manner for deciding the probate

petition/testamentary suit. Mr. Shah submits that this legal position is not in

dispute.

4. Mr. Shah learned senior counsel placed reliance on Order 18 Rule 2 of

the Code of Civil Procedure, 1908 in support of his submission that evidence

has to be led in support of the issues which the party is bound to prove and

not on any other irrelevant issues. Learned senior counsel submits that the

dispute about address of the said deceased or whether the said deceased

could have bequeathed some of the properties as mentioned in the affidavit in

lieu of examination in chief, are not the issues in respect of which evidence

.. 5 .. tp-832.2010.sxw

can be led by the defendant. It is submitted that since all these

paragraphs referred to aforesaid are not relevant in support of the issues

involved, these paragraphs are required to be struck off at this stage. It is

submitted that if this part of evidence which is not relevant is not struck of,

there will be unnecessary lengthy cross examination of the defendant which

would not be in the interest of any party. Order 18 Rule 2 and 4 of the Code

of Civil Procedure read thus :

"2. Statement and production of evidence.- (1) On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and

produce his evidence in support of the issues which he is bound to prove.

(2) The other party shall then state his case and produce his evidence (if any) and may then address the court generally on the whole case.

(3) The party beginning may then reply generally on the whole case. (3A) Any party may address oral arguments in a case, and shall before

he concludes the oral arguments, if any, submit if the Court so permit concisely and under distinct headings written arguments in support of his case to the Court and such written arguments shall form part of the record.

(3B) A copy of such written arguments shall be simultaneously furnished to the opposite party.

(3C) No adjournment shall be granted for the purpose of filing the written arguments unless the Court, for reasons to be recorded in writing considers it necessary to grand such adjournment.

(3D) The Court shall fix such time-limits for the oral arguments by either of the parties in a case, as it thinks fit. 4 Recording of evidence.- (1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence:

Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are

.. 6 .. tp-832.2010.sxw

files along with affidavit shall be subject to the orders of the Court.

(2) The evidence (cross-examination and re-examination) of the witness in attendance, whose evidence (examination-in-chief) by

affidavit has been furnished to the Court, shall be taken either by the Court or by the Commissioner appointed by it:

Provided that the Court may, while appointing a commission under this sub-rule, consider taking into account such relevant factors as it thinks

fit:

(3) The Court or the Commissioner, as the case may be shall record evidence either in writing or mechanically in the presence of the Judge or of the Commissioner, as the case may be, and where such evidence is recorded by the Commissioner he shall return such evidence

together with his report in writing signed by him to the Court appointing him and the evidence taken under it shall form part of the

record of the suit.

(4) The Commissioner may record such remarks as it thinks material respecting the demeanour of any witness while under examination:

Provided that any objection raised during the recording of evidence before the Commissioner shall be recorded by him and decided by the Court at the stage of arguments.

(5) The report of the Commissioner shall be submitted to the Court

appointing the commission within sixty day from the date of issue of the commission unless the Court for reasons to be recorded in writing

extends the time.

(6) The High Court or the District Judge, as the case may be, shall prepare a panel of Commissioners to record the evidence under this

rule.

(7) The Court may by general or special order fix the amount to be paid as remuneration for the services of the Commissioner. (8) The provision of rules 16, 16A, 17 and 18 of Order XXVI, in so far as they are applicable, shall apply to the issue, execution and return of

such commissions under this rule."

5. Mr. Khandeparkar, learned counsel appearing on behalf of the

defendant on the other hand submits that the application filed by the plaintiff

for striking of the defence is not maintainable. Reliance is placed on Rule

.. 7 .. tp-832.2010.sxw

121 (5) and 125(38) of the Bombay High Court (Original Side) Rules, in

support of his submission that the applicants ought to have filed chamber

summons and not such application by way of affidavit. Learned counsel

submits that there is no provision for striking of the evidence under Order 18

Rule 2 or Order 18 Rule 4. Learned counsel placed reliance on Order 19

Rule 3 and submits that the defendant has personal knowledge to prove

what is deposed in the affidavit in lieu of examination in chief. It is

submitted in the event of this court coming to the conclusion that any matter

whether hearsay or argumentative matter is referred in the affidavit, this

court can impose cost which can be considered only after entire evidence is

completed and this court can not strike of any part of evidence at this stage.

Learned counsel submits that this court has no power to strike of portion of

the affidavit.

6. Mr. Khandeparkar placed reliance on Rule 206 of the High Court

(Original Side) Rules and submits that the court or Judge in chambers may

order to be struck out from any affidavit any matter which is scandalous and

may order the cost of any application to strike out such mater to be paid as

between Advocate and client. Mr. Khandeparkar, learned counsel submits

that in so far as the deposition made in para 3 and 4 in affidavit in lieu of

examination in chief is concerned, the deponent of the affidavit has placed

.. 8 .. tp-832.2010.sxw

substantial evidence on record about the correct residential address of the

said deceased at the time of his death to demonstrate that the plaintiff

prevailed upon the deceased testator to execute the Will in question by

bequeathing the property in favour of the party executing the Will. It is

submitted that paragraphs 3 and 4 would indicate the conduct of the said

deceased and the plaintiff and are thus relevant for the purpose of deciding

the issue.

7. As far as depositions made in paragraphs 12 to 17 of the affidavit

in lieu of examination in chief is concerned, the learned counsel submits that

even in paragraph 12 of the affidavit in lieu of examination in chief, the

witness has deposed that the said deceased cannot be bequeathed the

ancestral property by Will. It is submitted that though in paragraphs 13 to 17

also the defendant has raised similar objection regarding the rights of the

said deceased to bequeath by Will various other properties, Plaintiff seeks

striking of the evidence laid in paragraph 13 to 17 of the said affidavit.

Learned counsel submits that what is stated in paragraph 13 to 17 was out of

depositions made in paragraph 12. Reliance is placed on Section 136 of the

Indian Evidence Act, 1871 by the learned counsel and would submit that it

is for the court to decide as to admissibility of evidence after entire evidence

is over and not at this stage. If the court comes to the conclusion that certain

.. 9 .. tp-832.2010.sxw

part of the evidence is not relevant, the same can be ignored or struck off at

that stage. It is submitted that any part of the said affidavit can not be

considered as irrelevant at this stage and thus cannot be struck of in view of

section 136 of the Indian Evidence Act. Section 136 of the Indian Evidence

Act reads thus :

"136. Judge to decide as to admissibility of evidence.- When either party proposes to give evidence of any fact, the Judge

may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the

Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise. If the fact proposed to be proved is one of which evidence is admissible

only upon proof of some other fact, such last- mentioned fact must be proved before evidence is given of the fact first- mentioned, unless the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking. If the

relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either

permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact. "

8. Mr. Shah, learned senior counsel for the plaintiff in rejoinder

submits that Rule 121(5) of the Bombay High Court (Original Side) Rules,

would apply if an application is made to amend the plaint or subsequent

proceeding or to strike out any matter therein, the same has to be disposed of

by the Judge in chambers. Learned senior counsel submits that affidavit in

lieu of examination in chief is not pleadings but is evidence. It is submitted

that Rule 121(5) thus does not apply. As far as Rule 121(38) is concerned,

.. 10 .. tp-832.2010.sxw

learned senior counsel submits that the matters which are not expressly

required to be disposed of in court and which Judge thinks fit to be heard in

chambers, such applications can be directed to be heard in chambers by the

learned Judge. He submits that the said rule also will not apply to the facts of

this case. It is submitted that the plaintiff has already filed an application.

It is submitted that the objections raised by the defendant is hyper-

technical. It is submitted that Rule 121 does not apply to striking of the

evidence. In any event, under Section 151 of Code of Civil procedure, 1908,

this court has inherent power to consider such application. It is submitted

that order 18 rule 2 of Code of Civil Procedure does not curtail the powers

of the court under section 136 of the Indian Evidence Act. It is submitted

that the plea raised about the address of the deceased in the affidavit in lieu

of examination in chief is not raised in the affidavit in support of caveat and

cannot be allowed to be raised for the first time in affidavit of evidence.

Learned senior counsel submits that as far as depositions made in paragraph

12 which is not objected by the plaintiff, as to whether bequest could be

made as to whether bequest could be made by the said deceased in respect of

the ancestral property is concerned, in paragraph 12 of the said affidavit,

deponent has also alleged that the Will was executed under pressure

and/or undue influence, exercised or practiced upon the deceased by Plaintiff

.. 11 .. tp-832.2010.sxw

no. 1. It is submitted that since part of the evidence deposed in paragraph

12 is relevant to the issue, plaintiff rightly did not raise any objection in

respect of the entire paragraph.

9. On perusal of the issues framed by this court, it is clear that the

issues which are required to be proved by the parties is limited to the

execution of the Will and as to whether deceased was in sound state of mind

at the time of execution of the Will. This court while exercising the

testamentary jurisdiction cannot decide the title in respect of the properties

of the deceased or any third party in this testamentary suit. On perusal of

paragraphs 13 to 17 of the affidavit in lieu of examination, it is clear that

defendant has alleged that various properties described therein were

ancestral properties and such properties cold not have been bequeathed by

the deceased testator by Will. Defendant also has set up adverse title in the

said properties. In my view since this court cannot decide the title in respect

of the properties of the deceased or third party, while exercising

testamentary jurisdiction deposition made in paragraphs 13 to 17 of the

affidavit in lieu of examination in chief disputing the title to the properties of

the deceased or his power to bequeath the property by Will, are not relevant

to the issue framed in this suit and thus no evidence on such allegation made

by the defendant can be laid.

.. 12 .. tp-832.2010.sxw

12. As far as deposition made in paragraph 12 of the affidavit in lieu

of examination in chief is concerned, on perusal of the said paragraph, it is

clear that defendant has not only submitted that the deceased cannot

bequeath the ancestral property as the same were not self acquired properties

of the deceased, but has also alleged that the Will was not executed or the

deceased was under pressure and/or undue influence which was alleged to

have been exercised or practiced on the deceased by the plaintiff. In my

view, Mr. Shah, learned senior counsel for the plaintiff is right that in view of

the dispute about the validity of Will having been raised along with title

issue, Plaintiff did not raise objection for striking part of paragraph no. 12.

Even if plaintiff has not applied for striking of the portion of paragraph 12, it

would not mean that what is deposed in paragraph Nos. 13 to 17 would be

relevant to the issue in testamentary proceedings. In my view, there is no

merit in this submission of Mr. Khandeparkar, learned counsel for the

defendant.

12. As far as deposition made in paragraph 3 and 4 of the affidavit

are concerned, on perusal of the said paragraphs, it is clear that the

allegations of the defendant is that the deceased was staying with plaintiff

at Santacruz address since 1982 and not at the address mentioned in the

.. 13 .. tp-832.2010.sxw

plaint. In my view whether the said deceased was staying at Santacruz or at

Kalbadevi is not relevant for the purpose of deciding whether the Will was

validly executed or not or whether the deceased was in sound state of mind

at the time of execution of the Will and thus both these paragraphs are not

relevant to the issues involved.

13. On perusal of Order 18 Rule 2 of the Code of Civil Procedure, it is

clear that the party is entitled to produce his evidence in support of all the

issues which he is bound to prove. The court has to see whether evidence

proposed to be led by the party is relevant in support of the issues involved.

Only such evidence which is relevant in support of the issues, the party is

bound to prove such issue. Any evidence which is not relevant to the issues

involved, can be considered irrelevant. There was an amendment to Order

18 Rule 4 of the Code of Civil Procedure, 1908 by which examination in

chief of the witness is allowed to be filed on affidavit. The legislative intent to

permit examination in chief of the witness by filing affidavit was to expediate

the trial. The question that arises for consideration of this court is if there

was no such amendment permitting the party to file affidavit in lieu of

examination in chief of the witnesses and if the oral examination of the

party who seeks to lead oral evidence was required to be recorded in the

court, whether court could have permitted the party in examination in chief to

.. 14 .. tp-832.2010.sxw

lead any evidence which was not relevant to the issue. In my view, the court

could not have permitted or would have stopped the party from leading

evidence in examination in chief to the issue which were not relevant for the

purpose of deciding the suit. The court cannot permit the party to lead an

irrelevant evidence or evidence not related to the issue even in affidavit

filed by way of examination in chief in lieu of oral evidence. Order 18 rule 4

in my view has to be read with Order 18 rule 2 which clearly provides that

evidence has to be in support of the issues which party is bound to prove. In

my view, since the defendant is not bound to prove nor it is relevant in the

testamentary proceedings that the deceased who was alleged to have

bequeathed particular property was not owner of the said property such

part of evidence is irrelevant and can not be permitted by Court. If the court

could not have permitted the defendant to lead such evidence as not related

to the issue involved under Order 18 rule 2, the court cannot permit the said

party to lead evidence not related to the issue involved or the issue which the

party is not bound to prove under Order 18, rule 4 by filing affidavit in lieu of

examination in chief.

14. As far as maintainability of this Chamber summons is concerned,

on perusal of Rule 121 (5) and 121(38), in my view, since 121(5) applies to

.. 15 .. tp-832.2010.sxw

the pleadings and not to evidence, such rule will not apply to the application

filed by the plaintiff for striking of the part of the evidence. As far as rule

121(38) is concerned, that gives discretionary power to the court to dispose

of the matters which are not expressly required to be disposed of in the

court by hearing the same in chambers. The said rule also does not apply to

such application. In my view, section 151 of the Code of Civil Procedure,

1908, gives inherent powers to the court to strike of the irrelevant evidence at

this stage with a view to avoid any further delay in the matter and to avoid

any cross examination on irrelevant issues. In my view, part of the evidence

which is on the face of it irrelevant and not relevant to the issue involved or

issue which the court ultimately cannot decide, can be struck of and/or can

be ignored even before commencement of cross examination.

15. As far as submission of Mr. Khandeparkar that the court has to

decide the admissibility of evidence at the stage of final arguments and not at

this stage under section 136 of the Indian Evidence Act is concerned, in my

view on plain reading of section 136 of the Indian Evidence Act, it is clear that

at the stage when the party proposes to give any evidence on any fact, the

court is empowered to ask such party who is proposing to give evidence,

.. 16 .. tp-832.2010.sxw

in what manner the alleged fact if proved would be relevant and the court

shall admit the evidence, if it deems that fact if proved would be relevant and

not otherwise. The court is thus empowered to consider whether to admit the

evidence which would be relevant and not otherwise. In my view, there is no

substance in the submissions made by Mr.Khandeparkar learned counsel for

the defendant.

16.

I am of the view that paragraphs 3 and 4 of the affidavit in lieu of

examination in chief which refers to the address alleged to be correct address

according to the defendant of the deceased is not relevant to the issue. What

is deposed in paragraph 13 to 17 which dealt with the power of the testator

to bequeath the property alleged to be ancestral property in which defendant

has claimed rights are irrelevant to the issue. Since this court cannot decide

these issues in the testamentary proceedings, no purpose would be served by

allowing the witnesses to depose on these allegations which are not relevant

to the issues involved and which the court cannot decide.

17. I, therefore, pass the following order :

(a) Deposition made in paragraphs 3, 4, 13 to 17 of the affidavit in

lieu of examination in chief dated 18 th March, 2013, being not relevant to the

.. 17 .. tp-832.2010.sxw

issue will not be read in evidence. Plaintiff is not required to cross examine

the defendant in respect of such deposition made in paragraph 3, 4 and 13 to

17 of the affidavit dated 18th March, 2013. Defendant can adopt appropriate

proceedings for adjudication of title before appropriate court.

(b) Both the parties are directed to proceed with evidence in respect of

the remaining paragraphs of the said affidavit expeditiously.

(c)

Application is disposed of in the aforesaid terms. There shall be no

order as to costs.

(R.D.DHANUKA, J.)