Delhi High Court
Suman Chatterjee vs The State & Ors on 12 September, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 12th September , 2017
+ TEST.CAS. 9/2010
SUMAN CHATTERJEE ..... Petitioner
Represented by: Mr. Pankaj Agarwal, Adv.
versus
THE STATE & ORS ..... Respondent
Represented by: Mr. Naushad Ahmed Khan,
ASC with Mr. Sachin Saini,
Adv. for GNCTD.
Mr. Arjun Harkauli, Adv. for R-
2.
Mr. Puneet Agarwal, Dalveer
Kaur, Adv. for R-3.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)
IA 10002/2017 (u/O XVIII R. 4 CPC by R-2)
1. Notice. Learned counsels for the plaintiff and respondent No.3, the
contesting parties accept notice. Learned counsels state that they do not wish
to file reply to the application and have addressed their respective arguments.
2. By the present application the respondent No.2 states that since the
interest of petitioner and respondent No.3 is in propounding the Will because
both of them got the property in equal shares; the only difference being
respondent No.3 propounds the registered Will dated 5th August, 2004 which
is an unregistered document and petitioner propounds the Will dated 23 rd
May, 2008. Further besides the two attesting witnesses A. Das and Samresh
Chandra Bhadra, petitioner and respondent No.3 were also present before the
Sub-Registrar when the Will dated 23rd May, 2008 was registered. Hence if
respondent No.3 is provided an opportunity to cross-examine the plaintiff's
witnesses after the respondent No.2, he might be prejudiced by some
questions as respondent No.2 would get no further opportunity to cross-
examine petitioner for clarifying facts.
3. This Court has heard learned counsel for the parties. Present petition
has been filed by Suman Chatterjee impleading Gautam Chatterjee and
Anupam Chatterjee his two brothers as respondent No.2 and 3 respectively
seeking probate/ letters of administration of the Will dated 23 rd May, 2008
executed by their late father Shri Narayan Chandra Chatterjee. Another
petition being TEST.CAS. No.29/2009 was filed by respondent No.3
Anupam Chatterjee propounding the Will dated 5 th August, 2004. By both
the Wills the immovable property of the deceased testator has been
bequeathed in equal shares to Suman Chatterjee and Anupam Chatterjee
divesting Gautam Chatterjee of the rights in the immovable property. In the
present petition though respondent No.3 has filed objections and according
to him the Will dated 5th August, 2004 was the last valid Will by their father,
however the fact remains that the registered Will dated 23rd May, 2008 notes
the presence of both Suman Chatterjee and Anupam Chatterjee at the time of
registration of the said Will. Case of Gautam Chatterjee/ respondent No.2 is
that when the Will was executed, their father was suffering from cancer and
was hospitalized, thus he was neither in a fit medical state to have visited the
Sub-Registrar's office and get the Will registered nor in a sound disposing
mind to execute the same.
4. On the basis of the pleadings of the parties issues were settled on 30 th
March, 2012 and in the time granted Suman Chatterjee failed to file evidence
by way of affidavit of his witnesses. When the matter was listed on 16th
November, 2012 and 12th April, 2013 adjournments were sought by learned
counsel for Suman Chatterjee which was not opposed. On the next date
adjournment was sought by learned counsel for the respondent No.2 and the
matter had to otherwise also adjourned as no time was left. The first witness
of the petitioner being PW-1 Samresh Chandra Bhadra, the attesting witness
was partly examined in chief on 29th April, 2014 when he tendered his
evidence by way of affidavit, however thereafter the petitioner filed fresh
affidavit of Samresh Chandra Bhadra without permission of the Court and
thus the proceedings languished. Finally on no objection by learned counsel
for the respondent No.2 to the fresh affidavit of PW-1, the same was taken
which was tendered on 20th November, 2015. Cross-examination of
Samresh Chandra Bhadra was deferred due to paucity of time, however four
questions were put to him by learned counsel for the respondent No.2 which
were general in nature asking about the relationship between the parties. On
the next date when PW-1 again appeared for cross-examination a request
was made by learned counsel for the respondent No.2 who stated that
petitioner and respondent No.3 are in collusion with each other and have set
up two similar Wills and thus it would be appropriate that before respondent
No.2 cross-examines the petitioner's witnesses they be cross-examined by
respondent No.3 because he would not get any opportunity to further cross-
examine the petitioner's witnesses if some material comes in the cross-
examination of respondent No.2. This plea was rejected by the learned Joint
Registrar on 26th April, 2017. Hence the present application by respondent
No.2.
5. As noted above, even if the petitioner and respondent No.3 are not in
collusion since both of them have set up respective Wills of their late father
bequeathing the immovable property to petitioner and respondent No.3 in
equal shares to the exclusion of respondent No.2, it is evident that they have
a common interest. In view of this common interest, it would be thus in the
interest of justice if permission is granted to respondent No.2 to cross-
examine the witnesses of the petitioner after respondent No.3 has cross-
examined the witnesses. Ordered accordingly.
6. Application is disposed of.
TEST.CAS. 9/2010
List before the learned Joint Registrar for proceedings and recording
of the evidence on 10th October, 2017.
(MUKTA GUPTA)
JUDGE
SEPTEMBER 12, 2017
'ga'
