Telangana High Court
Dr.Subhalakshmi Atmaram Jaiswal vs Mr.Rahul Asoorya And 3 Others on 12 January, 2024
THE HONOURABLE SMT. JUSTICE K. SUJANA
CIVIL REVISION PETITION No.821 of 2023
ORDER:
Aggrieved by the order dated 01.02.2023 in I.A.No.1689
of 2022 in O.S.No.1009 of 2014 passed by the Court of
learned XI Additional Chief Judge, City Civil Courts,
Hyderabad, the present Civil Revision Petition is filed.
2. I.A.No.1689 of 2022 is filed under Section 151 of CPC
read with Section 65 of the Indian Evidence Act not to mark
the copy of alleged will deed dated 28.05.1996 in the suit.
The petitioners therein submitted that petitioner No.1 therein
is the defendant No.1 in the main suit seeking recovery of
possession of the schedule property based on the alleged will
deed dated 28.05.1996 vide Judgment of Probate dated
29.04.2006 in C.M.A.No.138 of 1999 passed by the Civil
Judge, Senior Division, Sholapur. He further submitted that
the plaintiff filed chief affidavit and list of documents
including copy of alleged probate will, dated 28.05.1996. The
forged and fabricated will brought on record through written
statement filed by defendant.
3. The petitioner herein filed counter stating that the
present petition is at premature stage of marking of
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documents on behalf of P.W.1. A certified copy of Will deed
dated 28.05.1996 is intended to mark by the petitioner vide
application No.138 of 1999 is allowed on 29.04.2006.
Thereafter, no appeal is preferred and the first appeal was
disposed off on 20.08.2011, subsequently, the defendants
have filed restoration petition and it is pending and the
Original Will dated 28.05.1996 is under the Custody of the
Hon'ble High Court of Bombay by virtue of the First Appeal.
He further submitted that since CMA.No.138 of 1999 is
pending, the plaintiff filed rejoinder. The genuineness appeal
is not in dispute before Sholapur Court. Thereby, a certified
copy of Will was marked. He filed the present petition seeking
not to mark a copy of Will which cannot be entertained at this
preliminary stage and it is liable to be dismissed. The trial
Court after hearing on both sides, allowed the petition stating
that only the original will can to prove or disprove their
contents, not its certified copy. Hence, the present Civil
Revision Petition.
4. Heard Sri Sujith Jaiswal, learned counsel for the
revision petitioner as well as Sri K. Rajendran, learned
counsel for the respondents.
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5. Learned counsel for the petitioner submitted that Will is
not a private document when it is after the probate. The
Probate Court has been conferred with an exclusive
jurisdiction to probate of the will of the deceased annexed to
the petition, on grant or refusal thereof, it has to preserve the
original will produced before it. The grant of probate is final
subject to appeal, if any, or revocation if made in terms of the
provisions of the Succession Act. It is a judgment in rem and
conclusive and binds not only the parties but also the entire
world. As such, in view of the observation of the trial Court in
the impugned order that Will deed dated 28.05.1996 is a
private document and the certified copy cannot marked etc.,
is erroneous.
6. Learned counsel for the petitioner further submitted
that as already the probate has been issued in respect of Will
dated 28.05.1996 by a competent Court at Sholapur,
Maharashtra, it cannot be rejected for marking, as such,
prayed the Court to set aside the order of the trial Court by
allowing this Civil Revision Petition.
7. On the other hand, learned counsel for the respondents
relied on the judgment of various High Courts and the Hon'ble
Supreme Courts according to probate granted in other State
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is not a finding, even though it is a probate taken
contemplates the will, as such, prayed the Court to dismiss
the Petition.
8. Having regard to the rival submissions made by both
the learned counsel and having gone through the material
available on record, the present petition is filed not to mark
the document, which is filed along with the chief affidavit of
P.W.1 in O.S.No.1009 of 2014. The trial Court discussed the
validity of the document and the objection for marking of
document has to be taken at the stage of marking of the
documents. The document was not yet numbered to mark
the evidence. Mere marking of document does not mean to
prove all the contents. It is at premature stage to discuss
about the validity of the document. Any document accepted
in the Court has to be proved by the party. Therefore, before
taking the document as evidence, the trial Court went on
discussing about the contents of documents whether it is a
public document or a private document. Since it is not the
stage to discuss about the validity of documents, whether it
proves the plaintiff' case, the trial Court erred in entertaining
the petition filed for praying the Court not to mark the said
document. This Court, without expressing any opinion with
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regard to the validity and proof of document, deems it
appropriate to set aside the order of the trial Court as it is a
premature stage and an objection for marking of the
document has to be taken at the time of marking the
documents and it is not the stage to discuss all about the
proof.
9. With the above observation, this Civil Revision Petition
is allowed setting aside the order of the trial Court dated
01.02.2023 in I.A.No.1689 of 2022 in O.S.No.1009 of 2014
passed by the Court of learned XI Additional Chief Judge, City
Civil Courts, Hyderabad. Further, the trial Court is directed to
dispose of the case as expeditiously as possible. There shall
be no order as to costs.
As a sequel, miscellaneous petitions, pending if any,
shall stand closed.
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K.SUJANA, J
DATE: 12.01.2024
SAI
SKS,J
THE HONOURABLE SMT. JUSTICE K. SUJANA
CIVIL REVISION PETITION No.821 OF 2023
Date: 12.01.2024
SAI
