Bombay High Court
Trustees Co. Ltd. Ig vs Ashok Raju Shetty And Ors on 18 October, 2013
Bench: R.D. Dhanuka
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hvn
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY & INTESTATE JURISDICTION
CHAMBER SUMMONS NO. 126 OF 2012
IN
TESTAMENTARY SUIT NO. 46 OF 1997
IN
TESTAMENTARY PETITION NO. 308 OF 1997
Trustees Co. Ltd. ig ... Plaintiffs
Versus
Ashok Raju Shetty and Ors. ... Defendants
Mr. Shailesh Shah, Sr. Advocate along with Mamta Sadh i/by
Zohair & Co. for applicant (defendant nos. 4 and 5).
Mr.U.J. Makhija, Sr. counsel i/by Ms. Manju Rajbhar for defendant
nos. 1 to 3.
Mr. Milind Shewale for plaintiff in Testamentary Suit No. 46 of
1997.
CORAM : R.D.DHANUKA J.
RESERVED ON : 30/08/2013
PRONOUNCED ON : 18/10/2013
ORAL JUDGMENT :
By this chamber summons, defendant nos,. 4 and 5 seeks
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permission to examine Dr. Shri. R.V. Adyanthaya who had alleged
to have examined deceased at the time of execution of the Will of
the deceased and who had alleged to have put signature on the
Will dated 9th August, 1995. Defendant nos. 4 and 5 are claiming
to be the beneficiaries under the alleged Will dated 9 th August,
1995 executed by the deceased testator.
2. Petitioners who are appointed as executors of the Will
left by the deceased filed testamentary petition in this court (308
of 1997) inter alia praying for probate of the said will dated 9 th
August, 1995. The caveator filed caveat and affidavit in support.
Testamentary petition was converted into suit. Defendant nos. 4
and 5 are claiming to be beneficiaries under the said will and are
supporting the petitioners.
3. Petitioners examined five witnesses. On 1 st December,
2009, defendant nos. 4 and 5 made statement that they were not
intending to file any written statement as they were supporting the
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petitioner/plaintiff. On 20th December, 2010, this court recorded
statement of the defendant nos. 4 and 5 through their learned
senior counsel that defendant nos. 4 and 5 support
petitioner/plaintiff and shall not lead any evidence. On 21 st
March, 2011 by an order passed by R.Y. Ganoo,J., it was observed
that the witnesses examined by the plaintiff/petitioner does not
prove that there was evidence as to who had incorporated the
figures in the will in question and that omission was material
omission in the matter of proving the document of Will. It was
observed that on the basis of the evidence placed before this court,
plaintiffs/petitioners had failed to prove the document of Will as
having been duly executed on 9 th August, 1995 by the testator and
accordingly the said will could not be marked as exhibit and it
continues to be marked as X2 for identification. This court directed
the matter to be placed on board for arguments.
4. Plaintiff/Petitioners thereafter filed Chamber summons
(60 of 2011) inter alia praying for recalling of the attesting
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witness. By an order dated 10th June, 2011 passed by this court, it
is held that the witness who has proved the Will is required to
depose about the date of the Will and the same must be allowed.
This court directed the plaintiff to file further affidavit of
examination in chief within one week only on that limited aspect
with liberty to the defendant to further cross examine the plaintiff's
witness. This court observed that the entire truth has to be brought
on record and the court may recall any witness. It is held that no
party can take advantage of any inadvertent error. The court is
interested only in asserting the whole truth. It is held that under
section 151 of the Code of Civil Procedure, 1908, the court can
recall any witness for further evidence, however, the same shall be
subject to witness being cross examined thereafter. The said order
was impugned by the defendant nos. 1, 2 and 3 by filing appeal
[Appeal (Lodging) No. 393 of 2011]. By an order dated 4 th July,
2011 passed by the Division Bench, the said appeal is summarily
dismissed on the ground that it was not maintainable. This court
further observed that the learned Single Judge has allowed the
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Chamber summons filed by the applicants after hearing the parties
and after holding that the witness who proved the Will was
required to depose about the date of the Will.
5. It is not in dispute that the plaintiffs have closed their
evidence. Defendant Nos. 4 and 5 have filed this chamber
summons for permission to examine Dr. R.V. Adyanthaya who had
alleged to have examined the deceased.
6. Mr. Shah, learned senior counsel appearing for defendant
nos. 4 and 5 submits that in the Will dated 9 th August, 1995
executed by the deceased, the doctor's certificate is also typed.
There is certificate on page 6 of the said Will certifying that the
deceased was in sound state of health and mental condition and is
thus required to be examined. Learned senior counsel submits that
the examination of Doctor as a witness is necessary for deciding
the issue raised in the above matter. It is submitted that the
plaintiffs have not examined the Doctor, defendant nos. 4 and 5
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who are beneficiaries under the said will and testament be
permitted to examine the doctor. Learned senior counsel invited my
attention to the additional issue framed by this court on 11 th
March, 2005 which reads as under :
"Do the caveators/defendants prove that the execution
of the Will was obtained by undue influence and that
the Will is unnatural?"
7. Learned senior counsel submits that the doctor's
certificate on the said will is not marked so far. It is submitted
that the final arguments have not commenced so far. The evidence
of Doctor is relevant evidence and is required to be led for proving
physically sound and disposing state of mind of the testator and
also to prove the date of Will. He submits that to avoid
multiplicity and since final arguments have not yet commenced,
no prejudice would be caused to defendant nos. 1 to 3 if defendant
nos. 4 and 5 are allowed to examine the doctor. It is submitted
that the petitioners are professional writers of the Will and have
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no vested interest. It is submitted that since the petitioners have
not chosen to examine doctor who had issued certificate on the
Will after examining the testator, defendant nos. 4 and 5 who are
beneficiaries and who are supporting the petitioner are entitled to
examine the doctor. It is submitted that testamentary petition is
filed by the executors for obtaining probate of the Will by which
various legacies are bequeathed by the testator in favour of the
beneficiaries. It is submitted that ultimately rights of defendant
nos. 4 and 5 would be prejudiced if the doctor is not allowed to
be examined. Learned senior counsel submits that the defendant
no. 1 can be allowed to cross examine the witness. The learned
senior counsel submits that if the defendant nos. 1 to 3 also seek to
examine any witness, even those defendants also can be permitted
to lead evidence. It is submitted that additional issue framed by
this court caste burden on the caveator/defendants to prove that
the execution of the Will was obtained by undue influence and that
the Will is unnatural. It is submitted that defendant nos. 1 to 3 had
made statement not to lead any evidence since the said Will
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was not marked as exhibit. It is submitted that since defendant nos.
4 and 5 have made out a case for marking the Will, if the Will is
marked by this court, no prejudice would be caused to defendant
nos. 1 to 3 if defendant Nos. 4 and 5 are allowed to lead evidence
of the doctor.
8. Mr. Shah, learned senior counsel submits that under
Order 18 rule 2 of the Code of Civil Procedure, the court can
entertain any application for additional evidence, even at the stage
when case is fixed for arguments. It is submitted that the court has
inherent powers under section 151 of the Code of Civil Procedure,
1908, to permit the party to lead oral evidence, if it is found that
the applicant is entitled to reliefs prayed for in the facts and
circumstances of the case. The court is not powerless to grant relief
if the ends of justice and equity demands under section 151 of the
Code of Civil Procedure which are of wide scope and ambit. Mr.
Shah, learned senior counsel placed reliance on the judgment of the
Punjab & Haryana High Court in the case of Mam. Raj. Vs. Smt.
Sabiri Devi and Others, AIR 1999 Punjab and Haryana 96 and
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in particular paragraph 7 and 10 which read thus :
"7. Coming to the merits of these contentions, the first
contention raised by the learned counsel for the
petitioner with regard to the maintainability of the
additional evidence merits rejection at the very out set,
in view of the recent judgment rendered by this Court
in the case,of Chandgi v. Mehar Singh, Civil Revision
No. 2134 of 1997 decided on 12-3-1998 (reported in
MANU/PH/0254/1998) wherein it has been held that
the application for additional evidence, can be moved
at any stage that is till the Court concerned becomes
functus officio of the matter before it and signs the
judgment finally determining the issues involved in
the suit.
10. It is settled principle of law that the Court
necessarily need not be guided by the provisions of
law under which the application is made. The Court
has to look into the contents of the application and the
prayer made of such basis. What is to be seen is
whether the applicant is entitled to the relief prayed
for in the facts and circumstances of the case. The
Court is not powerless to grant relief, if the ends of
justice and equity demands because the powers vested
in the Court under Section 151 of the C.P.C. are of
wide scope and ambit. Reference in this regard can be
made to the judgment in the case of Ankayya v.
Subhadrayya MANU/TN/0199/1931 : AIR 1932 Mad
223 and Anumulasetti Venkateswara Rao v. Konduri
Siraiah MANU/AP/0099/1978."
9. Mr. Shah also placed reliance on the judgment of the
Punjab & Haryana High Court in the case of Chandgi Versus
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Mehar Chand and Others, AIR 1998 Punjab and Haryana 197
in support of his submission that till judgment is pronounced, the
court is not functious officio and thus the application for leading
additional evidence at the stage when case was pending for
pronouncement of judgment is permissible. Reliance is placed on
paragraph Nos. 7 and 8 which read thus :
"7. On the application of the well settled principles of
law governing the subject, I find it very difficult to
hold that the judgment is not a recognised stage of
the proceedings in a suit. Section 2(a) of the Code
defines the judgment as statement given by the judge
of the grounds of decree and order. The legal
cannotation of judgment is the declaration or final
determination of rights of the parties in the matter
before the Court. Even in common parlance the
expression 'judgment' is understood to pui an end at
least at some stage to the lis between the parties.
Hearing of a suit would have to be understood in the
context, where the Court fixes a date for some acts to
be done by either parties, while the stage or a later
stage of a suit would be a stage till the
pronouncement of judgment when the court is
funclus officio of the case before it.
8. In view of the above legal position, now I
advert to the merits of the present case. The
application filed by the defendants-applicants for
leading additional evidence has been allowed by the
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learned trial Court in spite of the fact that the case
was pending for pronouncement of judgment. The
reasoning given by the trial Court does not suffer
from any patent jurisdictional error."
10. Learned senior counsel submits that even under Order 41
Rule 27 (1)(b) the court can allow party to lead evidence even at
that stage for any substantial cause. Order 41 Rule 27(1)(b) reads
thus :
"R.27 : Production of additional evidence in Appellate
Court.-(1) The parties to an appeal shall not be
entitled to produce additional evidence, whether oral
or documentary, in the Appellate Court. But if -
(a) ......
(b) the Appellate Court requires any document to be
produced or any witness to be examined to enable it
to pronounce judgment, or for any other substantial
cause,
the Appellate Court may allow such evidence or
document to be produced or witness to be examined."
11. Mr. Makhija, learned counsel for defendant nos. 1 to 3 in
reply submits that defendant nos. 4 and 5 are not propounder of
the Will and has no say in the matter. If the petitioner has not
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examined the doctor to prove the health and disposing mind of the
testator, defendant nos. 4 and 5 cannot examine the Doctor. It is
submitted that defendant nos. 4 and 5 have no locus to examine the
doctor. It is submitted that defendant nos. 4 and 5 had
repeatedly made statement before this court that they did not
propose to file any written statement and did not wish to lead any
oral evidence. This court has recorded the said statement made
by defendant nos. 4 and 5. It is submitted that even when order
dated 21st Mach, 2011 passed by R.Y. Ganoo,J., directing the office
to place the matter for final arguments, defendant nos. 4 and 5 did
not seek liberty to lead any oral evidence or to examine the doctor.
12. It is submitted by Mr. Makhija that the Doctor was not the
attesting witness and would not be able to depose on the issue as
to when the date was put by the attesting witness. He submits that
the executors have to prove the will and not the beneficiary. It is
submitted that the plaintiffs had taken out chamber summons (60
of 2011) for recalling a witness examined by the plaintiffs. Even at
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that stage, when order was passed on 10 th June, 2011 by this court,
permitting the plaintiff to recall the attesting witness, defendant
nos. 4 and 5 did not seek permission to lead evidence of the
doctor.
13. By a separate order passed by this court, the Will executed
by the deceased has been marked as exhibit. Various documents
produced by the witnesses of the petitioners to prove execution of
the Will are already marked as exhibits. It is true that the
defendant nos. 4 and 5 had made a statement that they did not
propose to lead any oral evidence as they were supporting the
plaintiffs/petitioners. It is not in dispute that after the order passed
by R.Y. Ganoo,J., on 21st March, 2011 directing the office to place
the mater on board for final arguments, the petitioners had filed
Chamber summons inter alia praying for recalling the attesting
witness. Even at that stage, this court by passing an order on 10 th
June, 2011, in the interest of justice and to find out the truth
permitted the petitioners to recall the attesting witness though the
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matter was directed to be placed on board for final arguments after
evidence of the plaintiffs as well as defendant nos. 1 to 3 was
closed. The said order passed by this court on 10 th June, 2011 is in
force. An appeal filed by defendant nos. 1, 2 and 3 has been
dismissed by this court as not maintainable. Pursuant to the said
order dated 10th June, 2011, plaintiffs had recalled the attesting
witness. Defendant nos. 1 to 3 have cross examined the attesting
witness pursuant to the last opportunity granted by this court by
order dated 10th June, 2011.
14. After hearing the learned counsel for parties on the issue
of marking the Will, I have also heard their submissions on this
chamber summons filed by defendant nos. 4 and 5. Since by
separate order passed by this court, I have marked the Will in
question as exhibit, in my view, no prejudice would be caused to
defendant nos. 1 to 3 if defendant no. 4 is permitted to examine
the doctor who was alleged to have issued certificate after
examining the testator that he was of sound and disposing mind.
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15. Merely because the plaintiffs have not examined the
doctor, defendant nos. 4 and 5 who are the beneficiaries under the
said Will and are ultimately going to be affected by any order
passed by this court, in my view, cannot be refused an opportunity
to lead oral evidence even at this stage to prove that the deceased
testator was in sound and disposing state of mind at the time of
executing will. The Petitioners are professional writers of the Will
and have no personal interest. The executors have to act for the
benefit of legatees/beneficiaries. On the contrary the interest of the
beneficiaries is larger than the interest of the executors in this case
who are professional writers. The beneficiaries are entitled to
prove their case independently by examining the doctor since the
plaintiffs have not proposed to examine the doctor. In my view,
Mr. Makhija, the learned counsel for defendant nos.1 to 3 is not
correct in his submission that defendant nos. 4 and 5 have no
locus to examine the doctor and the same can be done only by the
petitioners being executors.
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16. It is not in dispute that this court had permitted the
plaintiffs to recall the attesting witness inspite of closure of
evidence after giving opportunity to defendant nos. 1 to 3 to cross
examine the said attesting witness on recall which opportunity
was exercised by defendant nos. 1 to 3.
17. Defendant nos. 1 to 3 who had not examined any
witness so far, in view of the Will not having been marked as
exhibit earlier, since this court has now marked the will in
question as exhibit, defendant nos. 1 to 3 may also lead oral
evidence if they so desire, which witnesses can be cross examined
by the plaintiff and defendant nos. 4 and 5. If defendant nos. 4 and
5 are also allowed to lead oral evidence of Doctor at this stage who
is alleged to have issued certificate, no prejudice would be caused
to the defendant nos. 1 to 3. Defendant nos. 1 to 3 would be
entitled to cross examine the doctor. The relevance of the evidence
would be considered at the stage of final arguments.
18. In my view, under section 151 of the Code of Civil
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Procedure, the court has ample power to permit the party to lead
additional evidence before the suit is finally heard. Under Order 41
Rule 27(1)(b) even the appellate court may allow any witness to be
examined to enable it to pronounce judgment or for any
substantial cause. In this case, final arguments have not yet
commenced. Interest of both the parties would be protected if
defendant nos. 1 to 3 and defendant nos. 4 and 5 are allowed to
lead evidence. I am in agreement with the principles laid down by
the Punjab & Haryana High Court in the judgment referred
aforesaid.
19. I, therefore, pass the following order :
(a) Defendant nos. 4 and 5 are permitted to examine Dr. R.V.
Adyanthaya with liberty to defendant nos. 1 to 3 to cross examine
the said witness.
(b) Defendant nos. 1 to 3 are also permitted to examine any
witness with liberty to plaintiff and defendant nos. 4 and 5 to
cross examine such witness.
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(c) Defendant nos. 4 and 5 are permitted to file affidavit in
lieu of examination in chief of Dr. R.V. Adyanthaya within four
weeks from today. After evidence of the Dr. R.V.Adyanthaya is
closed, defendant nos. 1 to 3 may file affidavit in lieu of
examination in chief if they so desire of their first witness within
four weeks from the date of the closure of evidence of Dr.
R.V.Adyanthaya.
(d) Chamber summons is disposed of in the aforesaid terms.
There shall be no order as to costs.
(R.D.DHANUKA, J.)
