Anita Tukaram Bohane (Now Smt. ... vs Desmond A. D'Souza
2016 Latest Caselaw 4394 Bom

                                      3-TS-94-2015.DOC




     JSN




                                                                                 
           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
           TESTAMENTARY AND INTESTATE JURISDICTION




                                                         
                    TESTAMENTARY SUIT NO.94 OF 2015
                                            IN
               TESTAMENTARY PETITION NO.704 OF 2015




                                                        
     Anita Tukaram Bohane (Now Smt. Anita                                   ...Plaintiff
     Bhagwant Ghate)




                                           
           Versus
     Desmond A D'Souza        ig                                         ...Defendant


    Mrs. Eventa Gonsalves, for the Plaintiff.
                            
    Mr. Desmond A. D'Souza, Caveator No.1 in person.
    Mr. Suresh Barne, for the Defendant No.1.
    Mrs. Sawant, Translator and Interpreter present.
      


                                   CORAM:      G.S. PATEL, J
   



                                   DATED:      3 rd August 2016
     PC:-





     1.

There is a witness in a contested Testamentary Proceedings in the witness box. A further examination in chief of sorts has been conducted by Ms. Gonsalves, to whom I have granted considerable

latitude in putting questions since the witness (the Plaintiff herself ) is clearly not able to speak English.

2. The Plaintiff claims to have signed an evidence Affidavit dated 28th April 2016 in compliance with Order 18 Rule 4 of the

3 rd August 2016

3-TS-94-2015.DOC

Code of Civil Procedure, 1908. She has signed in English. I have

myself asked her (as part of the trial) whether or not she speaks English. She says does not. She can obviously understand a fair

amount but does not speak it. She has confirmed that she knows the contents of this Affidavit, that they were explained to her, translated for her into Marathi, alanguage that she does understand, and that

this explanation and translation was by Ms. Gonsalves herself.

3. Unfortunately, and this is not uncommon, there is absolutely

no endorsement of this anywhere on the Affidavit nor has the notary, one Mr. N.R. Gupta, supposedly a Notary of the

Government of India, bothered to make this endorsement on the Affidavit.

4. In our Court, looking to the convenience of the litigants, we have provided that they may affirm Affidavits before notaries.

Previously, all Affidavits for use in court proceedings had to be

affirmed before an officer of the Court. What was meant to be a convenience is now being abused. Elementary precautions are thrown to the winds. Day in and day out, I have improper

affirmations -- those who should swear and not affirm are made to affirm. Where translations and explanations are clearly necessary, there is almost never any endorsement to that effect. Notaries of

descriptions do not care to ensure that the deponent has been explained and understood the Affidavit. I do not know what they imagine is being 'notarized'.

3 rd August 2016

3-TS-94-2015.DOC

5. Even if such notarized affidavits are acceptable at the stage of

a Motion or in other, more summary, proceedings, in an Affidavit in lieu of Examination-in-Chief this kind of affirmation is wholly

unacceptable.

6. An Affidavit of Evidence under Order 18 Rule 4 of the CPC is

a very special kind of document. It substitutes for actual testimony in chief, that which ought to be given by a witness from the stand. Testimony is always carefully translated for a witness in a witness

box, and the answers are always translated before being recorded. This is why we always have an officer from the Chief Translator's

office present in Court for assistance, where necessary. Not to make the necessary endorsement of translations or endorsement on

Evidence Affidavit is, therefore, an extremely serious omission or lapse. It is not a trivalent technicality. In a given case, it might conceivably prejudice the witness completely and it hamper him or

her in cross examination.

7. I am not in the least satisfied that the current practice of permitting Evidence Affidavits to be affirmed before the Notary

should be continued. I believe that such improper affirmations are seriously impeaching the integrity of the trial record and might vitiate an entire trial. The notaries in question are either

inexperienced or unconcerned about these consequences. A Court, however, has to be vigilant and mindful of the consequences to the trial and to the witnesses themselves.

3 rd August 2016

3-TS-94-2015.DOC

8. For these reasons, in all matters where Evidence Affidavits

are to be filed here after in this Court, such Affidavits must, in my view, necessarily be affirmed in the Court Registry before an officer

of the Court alone. They should not be notarised. Where a witness is unable to come to Court, arrangements must be made for an Associate of this Court to go to the witness's residence for the

necessary affirmation. No notary should be permitted to notarise an Evidence Affidavit under Order 18 Rule 4 of the CPC. Every such Affidavit should bear at its head a statement that it is an Affidavit

under Order 18 Rule 4 of the Code of Civil Procedure, 1908.

9.

Let a copy of this order be placed before the Prothonotary and Senior Master (who has very kindly attended Court at my request

while this order is being dictated) as also the Registrar General for obtaining the necessary directions on the administrative side to issue a suitable practice note.

(G. S. PATEL, J.)

3 rd August 2016