Bombay High Court
Agnes Miranda And 3 Ors vs Howard Miranda & 3 Ors on 3 July, 2017
Bench: R.D. Dhanuka
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vai
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY & INTESTATE JURISDICTION
CHAMBER SUMMONS NO.154 OF 2016
IN
TESTAMENTARY SUIT NO.28 OF 2001
IN
TESTAMENTARY PETITION NO.953 OF 1997
1. Mr.Howard Miranda, )
through his Constituted Attorney )
Ms.Phyllis Miranda )
)
2. Mr.Roy Miranda )
)
3. Ms.Arlene Miranda, )
)
All residing at "Roma", 36, Perry Road, )
Bandra (W), Mumbai - 400 050 )
)
4. Ms.Ginnette Fernandes nee )
Miranda residing at B-12, Gyandeep, )
17th Road, Santacruz (West), )
Mumbai - 400 054 ) ...Applicants /
) Ori.Defendants
)
IN THE MATTER BETWEEN : )
)
1. Mrs.Agnes Miranda of Mumbai )
Indian Inhabitant, residing at )
BSR Diagnostic Limited at "Roma" )
36, Perry Road, Bandra (West) )
Mumbai - 400 050. )
)
2. Ms.Jullien Miranda of Mumbai )
Indian Inhabitant, residing at )
BSR Diagnostic Limited at "Roma" )
36, Perry Road, Bandra (West) )
Mumbai - 400 050. )
)
1
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)
3. Mr.Savio Miranda having address )
at 7/22 B, Arabi Street, Sandringham, )
Auckland - 1041, New Zealand )
)
)
4. Ms.Avril Rodrigues of Mumbai )
Indian Inhabitant, residing at )
BSR Diagnostic Limited at "Roma" )
36, Perry Road, Bandra (West) )
Mumbai - 400 050. )
)
....Versus.... )
)
1. Mr.Howard Miranda )
through his Constituted Attorney )
Ms.Phyllis Miranda )
2. Mr.Roy Miranda )
)
3. Ms.Arlene Miranda, )
)
All residing at "Roma", 36, Perry Road, )
Bandra (W), Mumbai - 400 050 )
)
4. Ms.Ginnette Fernandes nee )
Miranda residing at B-12, Gyandeep, )
17th Road, Santacruz (West), )
Mumbai - 400 054 ) ...Defendants /
) ...Respondents
Mr.Aditya Bapat with Ms.Shilpan Gaonkar and Mr.Subodh Kurdukar
i/b Kurdukar & Associates for the Applicants / Original Defendants.
Mr.Nimay Dave with Mr.Ayaz Bilawala and Ms.Sidhi Doshi i/b
Bilawala & Co. for the Respondents / Original Plaintiffs.
CORAM : R.D. DHANUKA, J.
DATE : 3RD JULY, 2017.
ORAL JUDGMENT :-
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1. By this chamber summons, the applicants (original
defendants) seek recall of the witness no.1 examined by the
applicants i.e. Ms.Ginnette Fernandes nee Miranda for the purpose of
proving and accepting the documents in evidence annexed as
Exhibits 1 to 5 to the affidavit in lieu of examination in lieu of witness
no.2 (DW-2) i.e. Ms.Nisha Menon, proposed to be examined by the
applicants whose affidavit in lieu of examination in chief has been
already filed by the applicants. Some of the relevant facts for the
purpose of deciding this chamber summons are as under :
2. It is the case of the original petitioner - Joseph Miranda in
Testamentary Petition No.953 of 1997 (converted into Testamentary
Suit No.28 of 2001) that Robert Miranda had executed a Will on 10 th
January, 1980, who died on 10th May, 1991. It was also the case of
the original petitioner that the original petitioner was one of the two
executors named in the said Will. The first executor Kevin Miranda
alleged to have been named in the said Will died on 1st September,
1995. According to the original petitioner, the said deceased died
leaving behind two daughters viz. Mrs.Loretta Peter Fonseca and
Mrs.Joan Alec Monterio and one son by name Mr.Joseph Miranda
(original petitioner to the testamentary petition). The original petitioner
- Joseph Miranda claiming to be one of the legatee is also alleged to
have been named in the said Will. After the demise of Mr.Joseph
Miranda, his legal heirs have been brought on record.
3. On or abort 27th October, 1997 the said Mr.Joseph
Miranda filed Testamentary Petition bearing No.953 of 1997 inter-
alia praying for Probate of the alleged last Will dated 10th January,
1980 alleged to have been executed by Mr.Robert Miranda.
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4. In view of the caveats filed by the five parties on whom
citations were served, the testamentary petition was converted into
suit on 22nd June, 2001.
5. After considering the petition and the affidavits in support
of the caveat, this Court framed the following issues on 5 th July,
2011 :
1). Whether the last Will and Testament of the
deceased Robert Miranda dated 10th January, 1980
was validly executed ?
2). Whether the said Will was executed upon the
domination of the plaintiff/petitioner and his
brother ?
3). Whether the deceased was in a sound state of mind
at the time of the execution of the Will ?
4). What relief, if any, the plaintiff is entitled to ?
6. In the year 2014, the testamentary petition was converted
into a suit for Letter of Administration with the Will annexed in view of
the death of the alleged executors under the said alleged Will.
7. On 13th September, 2011, the plaintiffs tendered affidavit
of evidence and compilation of documents of their first witness. The
cross-examination of the plaintiffs' witness was completed in the
month of April, 2015. On 13th April, 2015, the original defendant no.1
Mrs.Phyllis Miranda died. On 22nd April, 2015, this Court recorded that
the evidence of the plaintiffs was closed and directed the defendants
to file affidavit of evidence of their first witness along with compilation
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of documents and affidavit of the documents on or before 15 th June,
2015. The defendants however, belatedly filed the affidavit of the first
witness i.e. Mrs.Ginnette Fernandes - defendant no.4 in the suit. On
20th April, 2016, cross-examination of the first witness of the
defendants commenced. On 21st July, 2016, cross-examination of
DW-1 was concluded. There was no re-examination of the said
witness by the defendants.
8. On 10th August, 2016, this Court directed the defendants to
file affidavit of evidence of the handwriting expert within one week
from the date of the said order. On 23rd August, 2016, the defendants
filed affidavit in lieu of examination in chief of DW-2 i.e. Ms.Nisha
Menon, the forensic expert. Along with the said affidavit, the
defendants placed reliance on several documents. This Court passed
an order on 23rd November, 2016 and observed that DW-2 could
have validly referred to the documents already on record or to
admitted documents. The documents sought to be relied upon by
DW-2 were not proved. Those documents were not even referred in
the affidavit of documents already filed by the defendants. This Court
held that the first defendant will have to explain how those documents
came into her possession now and from whom and how. She will
have to prove not only the signature but the documents in full.
9. It is held that till all this was done, the report submitted by
DW-2 could not be accepted fully and her cross-examination could
only be conducted on her report but without any reference to the
additional documents provided by the defendants or to any portions
of them that she may have used. At that stage, the defendants sought
leave to file a formal application to recall DW-1, to disclose additional
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documents and to lead them in evidence. It is accordingly held that
the defendants may file and move that application if permissible in
law. It was clarified that this Court had not granted leave to the
defendants to file any such application and the defendants would
have to make out a case that they were entitled to maintain such an
application. All the contentions were kept open. Pursuant to the said
order passed by this Court on 23 rd November, 2016, the defendants
have filed this chamber summons.
10. Mr.Bapat, learned counsel appearing for the applicants
invited my attention to the affidavits in support of the caveats filed by
his clients including the affidavit in support of the caveat filed by the
original defendant no.1 - Mrs.Phyllis Miranda dated 19 th April, 2000.
He submits that in each of the affidavits in support of the caveat, the
defendants have disputed the execution of the alleged Will
propounded by the original petitioner. The original petitioner and his
brother had used their position of trust to coerce the deceased into
singing the purported Will at a time when the deceased was not
capable of making any testamentary disposition. He submits that the
original defendant no.1 had also specifically referred to certain
application forms signed by the deceased. The original defendant
no.1 was daughter in law of the deceased.
11. It is submitted by the learned counsel that in view of the
disputes raised by the defendants in the affidavits in support of the
caveat, this Court had framed specific issue at serial no.1 i.e.
"Whether the last Will and Testament of the deceased Robert
Miranda dated 10th January, 1980 was validly executed ? He submits
that it is thus clear that the Will allegedly executed by the deceased
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Robert Miranda dated 10th January, 1980 was executed by him or not
is a specific issue which is required to be adjudicated upon by this
Court in this suit.
12. It is submitted by the learned counsel that when the
affidavit in lieu of examination in chief of the first witness of the
defendants dated 9th October, 2015 was filed on behalf of the
defendants, the said witness had not filed any documents along with
her affidavit in lieu of examination in chief as at that time she was not
in possession of any documents. He submits that during the cross-
examination of DW-1, Mrs.Loretta Fonseca, daughter of late -
Mr.Robert Miranda handed over two letters i.e. original letter dated
28th July, 1980 and photocopy of the letter dated 3rd July, 1980
bearing the signatures of late Mr.Robert Miranda to DW-1.
13. Learned counsel invited my attention to various questions
and answers in the cross-examination of DW-1 and more particularly
question nos.163 to 166. He submits that DW-1 was specifically
asked a question by the learned counsel for the plaintiffs as to who
had approached Ms.Nisha Menon to give evidence on behalf of the
defendants in this matter. DW-1 deposed that she had approached
Ms.Nisha Menon for the purpose of verifying the signature of the
deceased and decipher the writing of the second witness. DW-1 was
asked whether she had provided any documents for such purpose to
said Ms.Nisha Menon. DW-1 answered in affirmative and deposed
that she had provided a copy of Will and some other letters signed by
deceased Mr.Robert Miranda to the said Ms.Nisha Menon. She
further deposed that those letters did not form part of the present
proceedings as of now because they were of personal in nature. He
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submits that DW-1 was thereafter asked as to when and how she
came into possession of those alleged letters of her deceased grand-
father, DW-1 answered that they were given to her by her aunt
Mrs.Loretta Fonseca a couple of months ago.
14. Insofar as the other three documents i.e. applications
signed by the deceased are concerned, it is submitted that those
documents were discovered by DW-1 from the suit-case lying on the
loft which belonged to her late mother - Mrs.Phyllis Miranda (original
defendant no.1). He submits that DW-1 had visited the residence of
her mother i.e. "Roma" on 23rd July, 2016 for ascertaining the cause
of leakage in the loft of her mother's residence and to repair the
same. He submits that DW-1 discovered three original documents
described in paragraph 8 of her affidavit in support of the chamber
summons. He submits that DW-1 had handed over those documents
to Ms.Nisha Menon being forensic expert for the purpose of obtaining
an expert opinion for the purpose of verification of the signature and
initials of late Mr.Robert Miranda. He submits that those five
documents are annexed to the affidavit in lieu of examination in chief
of Ms.Nisha Menon (DW-2), the forensic expert as Exhibits 1 to 5
respectively.
15. It is submitted by the learned counsel that the said DW-1
can identify the signature of Mr.Robert Miranda on the documents
annexed to the examination in chief of Ms.Nisha Menon. He submits
that the applicants in the aforesaid circumstances could not produce
the documents when her affidavit in lieu of examination in chief of
DW-1 was filed and even before conclusion of her cross-examination.
He submits that since the applicants have disputed the signatures of
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the deceased on the alleged Will, the production of these five
documents would be most essential to prove the case of the
applicants that the deceased had not executed the alleged Will in
question. He submits that it is therefore, in the interest of justice that
the applicants be permitted to recall DW-1 for further evidence and to
prove those five documents.
16. It is submitted that this Court has ample power to permit
the parties to recall any witness at any stage. He submits that the
cross-examination of the second witness of the applicants is not
commenced. No prejudice would be thus caused to the plaintiffs if
DW-1 is recalled for proving the documents and the signatures of the
deceased Mr.Robert Miranda thereon and that the signature on the
alleged Will is fabricated. In support of this submission, learned
counsel for the applicants placed reliance on the judgment of the
Supreme Court in case of Salem Advocate Bar Association, T.N.
vs. Union of India (2005) 6 SCC 344 and in particular paragraph 13
and also in case of K.K. Velusamy vs. N. Palanisamy (2011) 11
SCC 275 and in particular paragraphs 3, 9, 11, 13 to 15, 18 and 18.
17. Mr.Dave, learned counsel appearing for the plaintiffs on
the other hand submits that there is no dispute about the proposition
of law that the Court has power to permit additional evidence or to
permit recall of the witness under section 151 of the Code of Civil
Procedure, 1908 in appropriate cases if the case is made out. He
however, submits that such discretion can be exercised by the Court
only if such party who seeks recall of the witness for the purpose of
leading additional evidence shows that inspite of his due diligence he
could not produce such evidence earlier when the same ought to
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have been produced. He submits that in this case, the defendants
have not come to this Court with clean hands and have failed to
prove that such documents could not be produced earlier inspite of
due diligence.
18. It is submitted that under Order 18 Rule 17 of the Code of
Civil Procedure, if any, lacuna remains in evidence or pleadings, the
same cannot be cured by filing additional evidence / pleadings. He
invited my attention to the affidavits in support of the caveats filed by
the defendants and submits that since it was the case of the
defendants that the deceased was coerced by the original petitioner
to execute the Will, that itself presupposes that the defendants have
admitted the existence of the Will. He submits that since the
execution of the Will is admitted in the affidavits in support of the
caveat, the defendants cannot be allowed to produce any new
documents at this stage to indirectly dispute the signature of the
deceased on the Will.
19. Learned counsel for the plaintiff also invited my attention to
the issues framed by this Court and more particularly issue nos.2 and
3 in support of the submission that those issues clearly indicate that
the execution of the Will by the deceased was admitted.
20. Learned counsel also invited my attention to some portions
of the cross-examination of DW-1 and would submit that the said
witness when was put a suggestion that the signature on the Will was
that of the deceased, she answered that she did not know. He
submits that since DW-1 is not familiar with the signature of the
deceased as deposed by her in reply to question no.168, she will not
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be able to identify the signature of the deceased on any other
document. He submits that the defendants have sought to create a
new case after evidence of the plaintiffs is already closed which is not
permissible.
21. Learned counsel for the plaintiffs invited my attention to
paragraph 4.3 of the affidavit in support of the caveat filed by
Mrs.Phyllis Miranda on 19th April, 2000 making a reference to the
application forms alleged to have been signed by the deceased. He
submits that though the said documents were already alleged to be in
possession of the said Mrs.Phyllis Miranda, the original defendant
no.1, those documents were never sought to be produced by the
defendants by filing compilation of documents, affidavit of documents
or even in the affidavit in lieu of examination in chief filed by DW-1.
He submits that this Court shall thus not accept the story of the
defendants that those three forms are now discovered from the suit-
case of the mother of DW-1.
22. Learned counsel for the plaintiffs also invited my attention
to the affidavit of evidence dated 9th October, 2015 filed by DW-1 and
more particularly paragraph 8 and submits that the said witness did
not rely upon any documents, including those copies of the
applications alleged to have been signed by the deceased though
such documents were already referred to and relied upon in the
affidavit of evidence filed by her mother Mrs.Phyllis Miranda.
23. It is submitted by the learned counsel that even according
to DW-1, she had already spoken to Ms.Nisha Menon, handwriting
expert on 20th April, 2016 about the documents which itself would
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indicate that at least on 20th April, 2016, the defendants were already
in possession of such documents, which are annexed to the affidavit
in lieu of examination in chief of the said Ms.Nisha Menon.
24. Learned counsel for the plaintiffs invited my attention to
the cross-examination of DW-1 and more particularly to the answers
to question nos.115 to 120. He submits that even in the cross-
examination DW-1 admitted that there were no documents annexed
by the defendants in the affidavits in support of the caveats filed by
them nor the same were in the custody of the defendants. He also
invited my attention to the answers given by DW-1 to question
nos.162 to 166 and 168 and would submit that DW-1 has already
admitted that for what purpose the said witness had approached the
handwriting expert.
25. Learned counsel for the plaintiffs invited my attention to
paragraphs 3 and 5 of the affidavit in support of the chamber
summons admitting that DW-1 was not in possession of any
documents when the affidavit in lieu of examination in chief dated 9th
October, 2015 was filed by the said witness. It is submitted that the
person who was addressed those letters allegedly by the deceased
has not handed over those letters to Mrs.Phyllis Miranda. The
defendants have no explanation as to how those letters came into
existence of other party, who was not the addressee of those letters.
He submits that the defendants have not explained and proved the
alleged leakage in the loft in the area in "Roma" where the mother of
DW-1 was staying.
26. Learned counsel for the plaintiffs submits that even in the
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affidavit of evidence of DW-2 i.e. Ms.Nisha Menon, or in the two
reports filed by her, she has not mentioned as to when those
documents were shown to her or the copies thereof were furnished to
her. He submits that the said handwriting expert could not have
prepared the report merely within seven days of the defendants
allegedly handing over the documents to the said witness. It is thus
clear that the defendants have not exercised any due diligence for
producing these documents at the earliest opportunity available to
them. He submits that the aunt of DW-1 was not the recipient of those
documents. Out of five documents, three documents were already in
alleged possession of the mother of DW-1, the original defendant
no.1. He submits that in these circumstances, this Court shall not
exercise any discretion in favour of the defendants by permitting the
defendants to recall DW-1 and to lead additional evidence. He
submits that the matter is already delayed on one or other ground
and thus if any further opportunity is granted to the defendants to lead
evidence at this stage by recalling DW-1, prejudice would be caused
to the plaintiffs.
27. Mr.Bapat, learned counsel for the applicants (original
defendants) in rejoinder invited my attention to the averments made
in the affidavits in support of the caveats, including the affidavit in
support filed by DW-1 herself. He submits that each of the defendants
have disputed the existence of the Will, including the alleged
signatures thereon. He submits that the allegations of coercion made
by the defendants in those affidavits are in the alternate. In support of
this submission, my attention is invited to paragraphs 5, 6, 8 and 9 of
the affidavit in support of the caveat filed by DW-1 and also the
original defendant no.1. He submits that this Court has already
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framed the issue about the valid execution of the alleged Will which
includes the dispute about the signature on the alleged Will.
28. Insofar as the submission of the learned counsel for the
plaintiffs that those alleged application forms were already relied
upon by the original defendant no.1 in her affidavit in support of the
caveat and more particularly in paragraph 4.3 and thus the said
documents not having been produced though was in the custody of
the original defendant no.1, it cannot be allowed to be produced now
is concerned, it is submitted by the learned counsel that the said
documents were referred to and relied upon by the original defendant
no.1. The plaintiffs never applied for inspection of those documents.
The original defendant no.1 - Mrs.Phyllis Miranda has already
expired. Those documents could be discovered by DW-1 only
recently. He invited my attention to paragraph 7 of the affidavit in
support of the chamber summons and would submit that DW-1 came
in possession of those three applications referred to and relied upon
by the said Mrs.Phyllis Miranda from a cupboard when DW-1 had
visited the said house for the purpose of ascertaining the extent of
leakage and for taking further steps to stop such leakage. He invited
my attention to the objections raised by the plaintiffs and the
deposition of DW-1 in reply to question nos.165 and 166. He submits
that in any event the letters proposed to be produced by the
defendants are 34 years old letters and thus can be allowed to be
produced.
29. Insofar as the deposition of the witness to question no.168
that she did not know whether the deceased had signed the Will is
concerned, it is submitted that the said DW-1 may not have
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recognized the signature of the deceased on the Will but can
recognize the signature on other documents sought to be produced.
He also invited my attention to the reply given by DW-1 in response
to the question nos.115 to 119. He submits that the defendants have
acted with due diligence and have made an application for recall of
DW-1 immediately after the affidavit of DW-2 was filed. He also
invited my attention to the order dated 23 rd November, 2016 passed
by this Court in this regard.
30. It is submitted that insofar as the deposition of DW-1 that
she did not have the documents is concerned, the said deposition in
respect of the relevant documents enquired by the learned counsel
for the plaintiffs during the course of cross-examination had nothing
to do with the documents now sought to be produced by the
defendants. He submits that in reply to question no.166, DW-1 has
already answered that the said documents were handed over to her
by her aunt - Mrs.Loretta Fonseca couple of months back. He
submits that there was no further cross-examination of the said
witness by the plaintiffs. It is thus proved that the said documents
came in the custody of DW-1 before couple of months of closure of
the evidence of DW-1. He submits that balance of convenience is in
favour of the applicants and no prejudice would be caused to the
plaintiffs if DW-1 is permitted to be recalled.
REASONS AND CONCLUSIONS :
31. A perusal of the affidavits in support of the caveats filed by
all the defendants clearly indicates that the defendants have disputed
the execution of the alleged Will dated 10th January, 1980 and more
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particularly in paragraphs 3, 5, 6, 8, 9, 10, 17 and 24. Based on the
pleadings filed by the parties, on 5th July, 2011 this court framed three
issues which are as under :-
1). Whether the last Will and Testament
of the deceased Robert Miranda dated 10th
January, 1980 was validly executed ?
2). Whether the said Will was executed
upon the domination of the plaintiff / petitioner
and his brother ?
3). Whether the deceased was in a
sound state of mind at the time of the execution
of the Will ?
32. A perusal of the issue no.1 clearly indicates that the
dispute about the existence and execution of the alleged Will and
Testament dated 10th January, 1980 is an issue which will have to be
adjudicated upon by this court in this testamentary suit.
33. Insofar as issue nos. 2 and 3 are concerned, if this court
comes to the conclusion that the Will was executed by the deceased
on 10th January, 1980, the issue nos. 2 and 3 will have to be decided
by this court independently. If the answer to issue no.1 is in negative,
the question of any adjudication of issue nos. 2 and 3 would not arise.
A perusal of the averments in the affidavit in support of the caveat
clearly indicates that even in paragraph (5) of the affidavit in support
of the caveat, it was alleged by the defendants that the original
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petitioner and his brother had misused their position of trust to coerce
the deceased into signing the purported Will at a time when the
deceased was not capable to make any testamentary disposition. It is
averred that the said plea raised by the defendants is on the face of it
is without admitting the execution of the said alleged Will dated 10 th
January, 1980. I am thus not inclined to accept the submission of the
learned counsel for the plaintiffs that since the applicants (original
defendants) have alleged that there was coercion on the deceased by
the original petitioner and his brother into signing the purported Will,
that would indicate that the execution of the Will is admitted by the
defendants.
34. Insofar as production of the additional documents by
recalling of the DW-1 by the applicants in this chamber summons is
concerned, it is the case of the applicants in the chamber summons
that when the DW-1 had filed affidavit in lieu of examination in chief
dated 9th December,2015 on behalf of the applicants, she had not
filed any documents along with her affidavit in lieu of examination in
chief since at the time of filing of the same, she was not in possession
of any documents. It is the case of the applicants that during the
cross examination of DW-1, Mrs.Loretta Peter Fonseca, the daughter
of Mr.Robert Miranda handed over two letters i.e. the original letter
dated 28th July, 1980 and photocopy of the letter dated 3 rd July, 1980
to the DW-1 bearing the signatures of late Mr.Robert Miranda who
had alleged to have executed the Will dated 10th January, 1980.
35. Insofar as the remaining three documents i.e. the
application forms alleged to have been signed by the deceased
Mr.Robert Miranda are concerned, it is the case of the applicants that
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DW-1 discovered certain documents from the suit-case which was
lying on the loft which belonging to her late mother - Mrs.Phyllis
Miranda during the process of clearing the loft. Those three
documents are alleged to have been signed by the deceased
Mr.Robert Miranda for seeking various permissions from the
Municipal Corporation of Greater Mumbai.
36. A perusal of the affidavit in support of the caveat filed by
the mother of DW-1 i.e. Mrs.Phyllis Miranda, the original defendant
no.1 and more particularly paragraph 4.3 thereof clearly indicates that
it was her case in the said affidavit in support of caveat that the
husband of the original defendant no.1 was to construct the additional
floor in 'Roma' for her husband, the original defendant no.1 and their
children. To that end, the deceased Mr.Robert Miranda had even
signed certain application forms for the construction of the additional
floors which she had sought leave to refer to and rely upon. It is the
case of the applicants that the defendant no.1 could discover those
three application forms signed by the deceased which were made to
the Municipal Corporation only recently after evidence of DW-1 was
concluded.
37. A perusal of the cross-examination of the DW-1 indicates
that the witness was asked by the plaintiffs' counsel in the cross-
examination whether she was going to examine any other witness.
The DW-1 answered the said question in affirmative. The witness
also denied the suggestion that her mother had copy of the Will dated
10th January, 1980 of the deceased prior to 1985 and her mother had
seen copy of the said Will prior to addressing her letter dated 18th
January, 1985. In reply to question no.164 when the witness was
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asked whether she had provided any documents to Ms.Nisha Menon,
the handwriting expert for verifying the signature of the deceased and
decipher the writing of the second witness, the witness answered that
she had provided a copy of Will and some other letters signed by her
grand-father to Ms.Nisha Menon. She admitted that as of now, those
documents did not form part of the present proceedings because they
were of personal nature. In reply to question no.166, when she was
asked whether she could tell how and when she came in possession
of those alleged letters of her grand-father Mr.Robert Miranda, the
witness answered that they were given to her by her aunt Mrs.
Loretta Peter Fonseca, a couple of months ago.
38. It is thus clear that in cross-examination, the witness has
prima-facie proved that those two documents were given to her by
her aunt Mrs. Loretta Peter Fonseca, a couple of months before the
date of the said deposition i.e. 21st July, 2016.
39. Insofar as the remaining three documents are concerned,
it is not disputed by the plaintiffs that the said application forms were
referred by the original defendant no.1 Mrs.Phyllis Miranda in her
affidavit in support of the caveat as far back as on 19 th April, 2000.
She had sought leave of this court to refer to and rely upon those
documents. It is not the case of the plaintiffs that they had applied for
any inspection of those documents from the said Mrs.Phyllis Miranda,
the original defendant no.1. The said Mrs.Phyllis Miranda expired on
13th April, 2015. In these circumstances, I am inclined to accept the
explanation of the applicants that those documents were discovered
by the applicants only when she visited the residence of her late
mother for solving the problem of leakage.
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40. A perusal of the further cross-examination of the DW-1
indicates that after the said witness deposed that those two
documents were given to her by her aunt Mrs. Loretta Peter
Fonseca, a couple of months ago in response to specific question as
to how and when she came into possession of those alleged letters of
her grand-father, the plaintiffs did not pursue the further cross-
examination of the witness on that issue. It is thus clear that those
documents were discovered recently by the applicants.
41. In my view since the applicants (original defendants) have
disputed the execution of the alleged Will dated 10th January, 1980
and have proposed to examine the handwriting expert to prove their
case, these five documents if proved would be relevant for the
purpose of determining issue no.1 as framed by this court.
42. Insofar as the submission of the learned counsel for the
plaintiffs that since the DW-1 had specifically answered in reply to
question no.168 that she did not know when she was put a
suggestion that the signature on the Will was that of the deceased
and thus she would not be able to identify the signature of the
deceased on the other documents also and thus no opportunity to
lead any additional evidence by recalling the DW-1 shall be given is
concerned, I am inclined to accept the submission of the learned
counsel for the applicants that even if the DW-1 did not identify the
alleged signature of the deceased on the alleged Will on the ground
that she did not know the signature of the deceased on the alleged
Will, it cannot be said that she would not be able to identify the
signature of the deceased on the other documents. The Court can
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also compare the signatures on the documents.
43. The court has to read the entire evidence in proper
prospective and not any particular answer in isolation. I am not
inclined to accept the submission of the learned counsel for the
plaintiffs that the defendants have sought to create a new case after
the evidence of the plaintiffs is already closed. The alleged signature
of the deceased on the alleged Will have been all throughout disputed
by the defendants and thus no new case is sought to be made out by
the applicants as canvassed by the original plaintiffs.
44. Insofar as submission of the learned counsel for the
plaintiffs that in paragraph 4.3 of the affidavit in support of the caveat
filed by Mrs.Phyllis Miranda on 19th April, 2000, she herself had made
a reference to the application forms alleged to have been signed by
the deceased and thus the said Mrs.Phyllis Miranda did not produce
those documents by filing compilation of documents, affidavit of
documents or even in the affidavit in lieu of examination in chief filed
by DW-1 and thus cannot be allowed to produce the documents at
this stage is concerned, it is clear that the said Mrs.Phyllis Miranda
herself had referred to those documents in her affidavit in support of
the caveat dated 19th April, 2000 itself. It is also not in dispute that
the plaintiffs did not make any request for inspection of those
documents. It is not in dispute that the said Mrs.Phyllis Miranda
expired on 13th April, 2015. The DW-1 filed her affidavit in lieu of
examination in chief on 9th October, 2015. The DW-1 therefore could
not produce those documents earlier. The fact remains that the
original petitioner had filed a testamentary petition after more than 14
years of the demise of Mr.Robert Miranda.
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45. A perusal of the record clearly indicates that when those
five documents were sought to be produced by the applicants after
closure of the evidence of the DW-1 through the second witness i.e.
Ms.Nisha Menon, the handwriting expert appointed by the applicants,
the applicants strongly raised objection in respect of the production of
those documents on the ground that those documents were neither
produced by the applicants nor referred at any point of time earlier
and thus could not have been produced through the second witness.
This court accepted the objections raised by the plaintiffs. The
applicants accordingly indicated that the applicants would apply for
recall of the DW-1.
46. This court by an order dated 29th November,2016
recorded those submissions, however made it clear that the
applicants may file and move such application if permissible in law.
The applicants immediately thereafter filed this chamber summons
inter-alia praying for recall of the DW-1 and to prove those
documents. In my view the applicants have thus justified the delay if
any, in filing these chamber summons after closure of the evidence of
the DW-1 for seeking recall of the DW-1 and for production of the
additional documents.
47. Insofar as submission of the learned counsel for the
plaintiffs that even according to the applicants, the documents were
already in possession of the applicants atleast on 20 th April, 2016
when the same were shown to Ms.Nisha Menon, handwriting expert
is concerned, it is not the case of the applicants, that those
documents were there in their possession of the applicants since
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long. The application forms alleged to have been signed by the
deceased were lying with the original defendant no.1 but could not be
handed over to the other applicants during her lifetime.
48. Insofar as submission of the learned counsel for the
plaintiffs that in reply to question nos. 115 to 120, DW-1 herself had
admitted that there were no documents annexed to the affidavit in
support of the caveat filed by the applicants, the same were not in
custody of the applicants is concerned, a perusal of the answer to
those questions clearly indicates that those questions were relating to
specific averments made in the affidavits in support of the caveat.
DW-1 had answered in cross-examination in response to the question
no.165 that those two documents were given to her by her aunt
Mrs.Loretta Fonseca a couple of months ago.
49. Insofar as the submission of the learned counsel for the
plaintiffs that even in the affidavit of evidence of DW-2 or in her two
reports filed by her along with affidavit in lieu of examination in chief,
she has not mentioned as to when those alleged documents were
shown to her or copies thereof were furnished to her is concerned,
DW-1 in her cross-examination has already deposed that those
documents were shown to DW-2 before her affidavit in lieu of
examination in chief was prepared by the said witness. Be that as it
may, DW-2 can be cross-examined on this deposition by the
plaintiffs. I am thus not inclined to accept the suggestion of the
plaintiffs that the defendants have not exercised any due diligence for
producing these documents at the earliest opportunity available to
them.
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50. Insofar as the submission of the learned counsel for the
plaintiffs that the aunt of DW-1 was not recipient of those two
documents out of five documents and that the aunt of DW-1 has not
been examined by the defendants is concerned, as and when those
documents are produced in evidence by DW-1, she can be subjected
to cross-examine on this issue.
51. The Supreme Court in case of Salem Advocate Bar
Association, T.N. (supra) has held that even before insertion of
Order 18 Rule 17-A in the Code of Civil Procedure, 1908, the Court
had inbuilt power to permit parties to produce evidence not known to
them earlier or which could not be produced inspite of due diligence.
Order 18 Rule 17-A did not create any new right but only clarified the
position. It is held that deletion of Order 18 Rule 17-A does not dis-
entitle production of evidence at a later stage. On a party satisfying
the Court that after exercise of due diligence that evidence was not
within his knowledge or could not be produced at the time the party
was leading evidence, the Court may permit leading of such evidence
at a later stage on such terms as may appear to be just.
52. The Supreme Court in case of K.K. Velusamy (supra)
has dealt with the scope of section 151 of the Code of Civil
Procedure, 1908 at great length. The principle of law that can be
culled out from the judgment of the Supreme Court in case of K.K.
Velusamy (supra) are :-
(i). Section 151 is not substantive provision which creates or
confers any power or jurisdiction on Courts. Section 151 recognizes
and confirms that if CPC does not expressly or impliedly cover any
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particular procedural aspect, the inherent power can be used to deal
with such situation or aspect, if the ends of justice warrant it.
(ii). The inherent powers of the Court being complementary to
the powers specifically conferred, a Court is free to exercise them for
the purposes mentioned in section 151 when the matter is not
covered by any specific provision in CPC and the exercise of those
powers would not in any way be in conflict with what has been
expressly provided in CPC against the intention of the legislature.
(iii). Powers under section 151 will have to be used with
circumspection and care, only where it is absolutely necessary, when
there is no provision in CPC governing the matter, when the
bonafides of the applicant cannot be doubted, when such exercise is
to meet the ends of justice and to prevent abuse of process of Court.
(iv). There is no specific provision in the Code of Civil
Procedure enabling the parties to reopen the evidence for the
purposes of further examination in chief or cross-examination. In the
absence of any provision providing for reopening of evidence or recall
of any witness for further examination in chief or cross-examination,
for the purpose other than securing the clarification required by the
Court, inherent powers under section 151 of the Code of Civil
Procedure, subject to its limitations, can be invoked in appropriate
cases to reopen the evidence and / or recall witnesses for further
examination.
(v). Such inherent powers are not affected by the express
power conferred upon the Court under Order 18 Rule 17 of the Code
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to recall any witness to enable the Court to put such question to elicit
any clarifications.
(vi). Order 18 Rule 17-A of CPC was deleted with effect from
1st July, 2002. The deletion of the said provision however, does not
mean that no evidence can be received at all, after a party closes his
evidence.
(vii). If there is time gap between completion of evidence and
hearing of arguments, for whatsoever reason and if in that
interregnum, a party comes across some evidence which he could
not lay his hands on earlier, or some evidence in regard to the
conduct or action of the other party comes into existence, the Court
may in exercise of its inherent power under section 151 of the Code,
permit the production of such evidence if it is relevant and necessary
in the interest of justice, subject to such terms as the Court may
deem fit to impose.
(viii). The need for the Court to act in a manner to achieve the
ends of justice subject to the need to comply with the law does not
end when arguments are heard and judgment is reserved. If there is
abuse of the process of the Court, or if interests of justice require the
Court to do something or take note of something, the discretion to do
those things does not disappear merely because the arguments are
heard, either fully or partly.
(ix). The convention that no application should be entertained
once the trial or hearing is concluded and the case is reserved for
judgment is a sound rule, but not a straitjacket formula.
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(x). There can always be exceptions in exceptional or
extraordinary circumstances, to meet the ends of justice and to
prevent abuse of process of Court, subject to the limitation
recognised with reference to exercise of power under section 151 of
the Code.
(xi). The power under section 151 or Order 18 Rule 17-A of the
Code of Civil Procedure is not intended to be used routinely, merely
for asking and if so used, it will defeat the very purpose of various
amendments to the Code to expedite trials.
(xii). Where the application is found to be bonafide and where
additional evidence oral or documentary, will assist the Court to
clarify the evidence on the issues and will assist in rendering justice
and Court is satisfied that non-production earlier was for valid and
sufficient reasons, the Court may exercise its discretion to recall the
witnesses or permit fresh evidence. The Court however, shall ensure
that the process does not become protracting tactic. The Court
should firstly award appropriate costs on other side to compensate for
delay. The Court then shall take up and complete the case within the
fixed time schedule so that the delay is avoided. If the application is
found to be mischievous or frivolous or to cover up negligence or
lacunae, it should be rejected with heavy costs.
(xiii). If the application is allowed and the evidence is permitted
and ultimately the Court finds that evidence was not genuine or
relevant and did not warrant the reopening of the case recalling the
witnesses, it can be made a ground for awarding exemplary costs
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apart from ordering prosecution if it involves fabrication of evidence.
(xiv). If the party had an opportunity to produce such evidence
earlier but did not do so or if the evidence already led is clear and
unambiguous, or if it comes to the conclusion that the object of the
application is merely to protract the proceedings, the Court should
reject the application.
53. In this case the evidence of DW-1 has been closed. The
applicants had already filed affidavit of DW-2. During the course of
cross-examination of DW-1, she had already indicated that certain
papers were shown to the handwriting expert for her opinion. Two
out of five documents were given to DW-1 by her aunt Mrs.Loretta
Peter Fonseca a couple of months ago as deposed by the said
witness in her cross-examination in reply to question no.166. The
cross-examination was concluded on 21st July, 2016. I am inclined to
accept the submission of the learned counsel for the applicants that
all the said five documents could not be produced by the applicants
inspite of due diligence. In my view, those documents would be
required for the purpose of proving issue no.1 as to whether the
deceased had executed the last Will and Testament dated 10 th
January, 1980 validly or not.
54. Ultimately the Court has to find out the truth in the matter
and for that purpose if any additional opportunity by way of recall has
to be furnished, in the interest of justice and with a view to find out the
truth, the Court can exercise discretionary power under section 151 of
the Code of Civil Procedure. The Court can in such an event can
expedite the hearing of the suit and hear the arguments of the parties
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day to day. The other party can be also compensated in terms of
payment of exemplary costs.
55. It is not in dispute that the entire evidence of the applicants
is not concluded. DW-2 has yet to be cross-examined by the original
plaintiffs. The existence and the contents of the documents sought to
be relied upon by the applicants by recalling DW-1 can be considered
by this Court when such documents are tendered by DW-1. In my
view, thus no prejudice would be caused to the original plaintiffs if
DW-1 is recalled as a witness for the purpose of proving and
exhibiting the documents in evidence which are annexed as Exhibits-
1 to 5 to the affidavit in lieu of examination in chef of Ms.Nisha Menon
- DW-2.
56. I, therefore, pass the following order :-
a). The chamber summons is made absolute in terms of
prayer clause (a).
b). It is made clear that the original plaintiffs are permitted to
cross-examine the DW-1 after her additional evidence is concluded.
The admissibility of the documents proposed to be tendered by DW-1
to be considered by this Court before the cross-examination of DW-1
is recommenced.
c). The original plaintiffs are permitted to cross-examine DW-
1.
d). The applicants are directed to pay the costs of Rs.25,000/-
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to the original plaintiffs within two weeks from today, without fail.
e). The chamber summons is disposed of in aforesaid terms.
(R.D. DHANUKA, J.)
