The Tara Charan Satya Sangha Vs. Atanu Banerjee and Anr. - Court Judgment

SooperKanoon Citationsooperkanoon.com/110566
CourtKolkata High Court
Decided OnJul-28-2017
JudgeBiswanath Somadder
AppellantThe Tara Charan Satya Sangha
RespondentAtanu Banerjee and Anr.
Excerpt:
in the high court at calcutta civil appellate jurisdiction original side present : the hon’ble mr.justice biswanath somadder and the hon’ble mr.justice sankar acharyya g.a.no.1584 of 2017 with apdt no.18 of 2017 t.s.no.3 of 2002 the tara charan satya sangha -vs.atanu banerjee & anr. for the appellant : mr.mr.mr.mr.mr.syama prosad sarkar, sr.adv.utpal bose, sr.adv.sanjoy bose, advocate. sounak sengupta, advocate. abhishek banerjee, advocate. for the respondent : mr.amal kanti das, advocate. mr.debayan sinha, advocate. ms.anyasha das, advocate. heard on : 17.05.2017, 12.06.2017, 14.06.2017, 12.07.2017, 17.07.2017 & 19.07.2017. judgment on : 28.07.2017. sankar acharyya, j. this appeal being apdt no.18 of 2017 has been filed by plaintiff appellant on being aggrieved by and dissatisfied with the judgment of dismissal dated 30th march, 2017 passed by learned single judge of this high court in testamentary suit no.3 of 2002. the appellant has filed an application being no.g.a.no.1584 of 2017 for stay of operation of the impugned judgment and decree. respondents have filed counter affidavit against the application for stay and appellant has filed affidavit in reply to that counter affidavit. the appeal and the application have been heard together. we have perused the memorandum of appeal and application for stay with counter affidavit and affidavit in reply referred to above. in the memorandum of appeal, inter alia, the appellant has contended that in the impugned judgment learned judge erred in explaining section 138 of the evidence act and holding that ingredients of the indian succession act, 1925 were not fulfilled. appellant has claimed that the will as a document itself is admissible in evidence, and that there was no irregularity in this case in the mode of proving the will. appellant has also claimed that the will in this case was clearly proved in accordance with the requirement of section 63 of the indian succession act. in the application for stay with annexures, the appellant has stated in substance that testator pranab nath mukhopadhyay executed his will dated 26th august, 1968 and that executor of that will prakriti nath mukhopadhyay filed p.l.a.no.197 of 1999 in this high court for granting probate of that will stating death of the testator on 10th december, 1978. that the defendant nos.1 and 2 contested the application for probate as caveators and that the application thereafter has become contentious and has been registered as a testamentary suit. after the death of pranab nath mukhopadhyay on the appellant’s prayer as legatee in the firs.court, the suit for probate was converted to a suit for letters of administration, as per order dated 14th march, 2016 in g.a.no.782 of 2016. on the prayer of the appellant, as plaintiff’s witness ashoke kumar roychowdhury was examined and cross-examined on commission as per order dated 3rd august, 2016 passed in g.a.no.2239 of 2016. thereafter the witness identified signatures of testator and the witness as attesting witness in the will, but the same were not marked as exhibits and that during cross-examination of the witness, identity of attesting witness was challenged for which the plaintiff filed g.a.2868 of 2016 for re-examination of that witness. it was allowed on 8th november, 2016. subsequently, the said witness was re-examined. appellant has claimed that the impugned judgment and decree is bad in law and operation of the same is required to be stayed. in the counter affidavit, the respondent no.1 has supported the impugned judgment. it has been claimed that at the time of examination-in-chief of plaintiff’s witness ashoke kumar roychowdhury, on 30.08.2016, that the alleged will dated 26.08.1968 had been shown to the witness and he was questioned about that document and signatures appearing on it. some questions and answers.recorded during his examinationin-chief and during re-examination have also been pointed out in the counter affidavit to support the findings of the impugned judgment. in his counter affidavit the respondent no.1 has claimed that his mother pratima alias ira banerjee and her sister, respondent no.2, jointly filed suit for partition being title suit no.18 of 1999 on 18th february, 1999 in alipore court against prakriti nath mukherjee and another in respect of the properties left by pranab nath mukherjee, and thereafter as a counter, the said prakriti nath mukherjee filed pla197of 1999 on 19.05.1999 in this high court. respondent no.1 has alleged that the said will is spurious and a manufactured document. the respondent no.1, in cours.of his arguments in the counter affidavit, has prayed for dismissal of the application for stay. in the affidavit in reply, the allegations against the genuineness of the will have been denied. having gone through the impugned judgment it seems that the learned single judge reviewed his own order dated november 8, 2016 passed in g.a.2868 of 2016 and considered the implementation of the said order regarding re-examination of plaintiff’s witness, ashoke kumar roychowdhury. it has been held that the evidence tendered during re-examination has to be ignored against the backdrop of the present case and that the plaintiff has failed to establish its case. the suit has been dismissed. it is obvious that in the impugned judgment that no particular issue has been decided. prior to refusing to accept the result of re-examination of said witness, the will in question and signatures of testator and attesting witness were kept on record as exhibits, which means that the same were admitted in evidence. it is true that upon admission of a document as a piece of evidence, it does not become sacrosanct, neither is it excluded from evidence for consideration. however, the evidentiary value of the same may be adjudged. in the instant case, even in case of denial by the attesting witness, of execution of the said will, the plaintiff could have taken the recours.of section 71 of the evidence act for proving execution of the will by other evidence but, in this case, the plaintiff was not given such opportunity. act of the commissioner who is duly appointed by court is presumed to be the act of court until such act is refused acceptance by order of court. the case of the defendants, as made out in the affidavit of caveators has also not been discussed. there is no discussion about evidence of defendant respondent which was recorded on commission in the conference room of this high court on 30.11.2016 and the exhibited documents which were marked at the time of recording his evidence. it transpires from the records of the firs.court, that several amendments of plaint had taken place during the pendency of the suit but defendants were not given an opportunity to file additional written statement, notwithstanding the fact that, at the time of hearing the g.a.782 of 2016 the learned advocate for the defendants had contended, that some incorrect statements were made in the application for converting the proceeding into letters of administration. he had insisted for filing the opposition, to said application. it is significant to note, that in the firs.court, after registering the testamentary suit no.3 of 2002 and converting the pla no.197 of 1999, issues were not framed and procedures of the code of civil procedure 1908 relating to admission, inspection, discoveries etc.before peremptory hearing of a suit were not at all followed. no decree has yet been pronounced in the suit on the basis of the impugned judgment. in our opinion, in a civil suit, final adjudication requires the compliance of due process of law. as per the applicable provisions of the code of civil procedure, passing of final judgment without framing of issues in a contentious suit of like nature is thus unwarranted. we are compelled to hold in this appeal that the impugned judgment dated 30th march, 2017 is liable to be set aside and therefore, set aside accordingly. however, we would like to make it clear, that the contention against the impugned judgment made out in the grounds of appeal, about the facts and law have not been adjudicated upon or accepted by us in this judgment. in our opinion, this is a fit case for remission to the firs.court on remand for de novo hearing after giving an opportunity to the defendants to file additional written statement, if any, for disposal of the suit in accordance with law. the oral evidence recorded and documentary evidence exhibited earlier in the suit for both the parties are hereby cancelled. however, the oral evidence recorded earlier may be used as previous statements of witnesses by either party during the de novo trial for the purpose of corroboration or contradiction, as per the provisions of the evidence act. the documents which have been filed in suit may again be marked exhibits if duly proved in accordance with law during such de novo trial. accordingly, let the testamentary suit no.3 of 2002 be sent back to the firs.court for a de novo hearing and disposal, as observed above. this appeal along with application for stay are disposed of accordingly. there shall be no order as to costs. urgent photostat certified copy of this judgment and order, if applied for, be supplied to the parties on priority basis upon compliance with all requisite formalities. i agree with the conclusion, (biswanath somadder, j.) (sankar acharyya, j.)
Judgment:

IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION Original Side Present : THE HON’BLE Mr.JUSTICE BISWANATH SOMADDER AND THE HON’BLE Mr.JUSTICE SANKAR ACHARYYA G.A.No.1584 of 2017 With APDT No.18 of 2017 T.S.No.3 of 2002 The Tara Charan Satya Sangha -Vs.Atanu Banerjee & Anr.

For the appellant : Mr.Mr.Mr.Mr.Mr.Syama Prosad Sarkar, Sr.Adv.Utpal Bose, Sr.Adv.Sanjoy Bose, advocate.

Sounak Sengupta, advocate.

Abhishek Banerjee, advocate.

For the respondent : Mr.Amal Kanti Das, advocate.

Mr.Debayan Sinha, advocate.

Ms.Anyasha Das, advocate.

Heard on : 17.05.2017, 12.06.2017, 14.06.2017, 12.07.2017, 17.07.2017 & 19.07.2017.

Judgment on : 28.07.2017.

SANKAR ACHARYYA, J.

This appeal being APDT No.18 of 2017 has been filed by plaintiff appellant on being aggrieved by and dissatisfied with the judgment of dismissal dated 30th March, 2017 passed by learned Single Judge of this High Court in Testamentary Suit No.3 of 2002.

The appellant has filed an application being No.G.A.No.1584 of 2017 for stay of operation of the impugned judgment and decree.

Respondents have filed counter affidavit against the application for stay and appellant has filed affidavit in reply to that counter affidavit.

The appeal and the application have been heard together.

We have perused the memorandum of appeal and application for stay with counter affidavit and affidavit in reply referred to above.

In the memorandum of appeal, inter alia, the appellant has contended that in the impugned judgment learned Judge erred in explaining section 138 of the Evidence Act and holding that ingredients of the Indian Succession Act, 1925 were not fulfilled.

Appellant has claimed that the will as a document itself is admissible in evidence, and that there was no irregularity in this case in the mode of proving the will.

Appellant has also claimed that the will in this case was clearly proved in accordance with the requirement of section 63 of the Indian Succession Act.

In the application for stay with annexures, the appellant has stated in substance that testator Pranab Nath Mukhopadhyay executed his will dated 26th August, 1968 and that executor of that will Prakriti Nath Mukhopadhyay filed P.L.A.No.197 of 1999 in this High Court for granting probate of that will stating death of the testator on 10th December, 1978.

That the defendant Nos.1 and 2 contested the application for probate as caveators and that the application thereafter has become contentious and has been registered as a testamentary suit.

After the death of Pranab Nath Mukhopadhyay on the appellant’s prayer as legatee in the FiRs.Court, the suit for probate was converted to a suit for Letters of Administration, as per order dated 14th March, 2016 in G.A.No.782 of 2016.

On the prayer of the appellant, as plaintiff’s witness Ashoke Kumar Roychowdhury was examined and cross-examined on commission as per order dated 3rd August, 2016 passed in G.A.No.2239 of 2016.

Thereafter the witness identified signatures of testator and the witness as attesting witness in the will, but the same were not marked as exhibits and that during cross-examination of the witness, identity of attesting witness was challenged for which the plaintiff filed G.A.2868 of 2016 for re-examination of that witness.

It was allowed on 8th November, 2016.

Subsequently, the said witness was re-examined.

Appellant has claimed that the impugned judgment and decree is bad in law and operation of the same is required to be stayed.

In the counter affidavit, the respondent No.1 has supported the impugned judgment.

It has been claimed that at the time of examination-in-chief of plaintiff’s witness Ashoke Kumar Roychowdhury, on 30.08.2016, that the alleged will dated 26.08.1968 had been shown to the witness and he was questioned about that document and signatures appearing on it.

Some questions and answeRs.recorded during his examinationin-chief and during re-examination have also been pointed out in the counter affidavit to support the findings of the impugned judgment.

In his counter affidavit the respondent No.1 has claimed that his mother Pratima alias Ira Banerjee and her sister, respondent No.2, jointly filed suit for partition being Title Suit No.18 of 1999 on 18th February, 1999 in Alipore Court against Prakriti Nath Mukherjee and another in respect of the properties left by Pranab Nath Mukherjee, and thereafter as a counter, the said Prakriti Nath Mukherjee filed PLA197of 1999 on 19.05.1999 in this High Court.

Respondent No.1 has alleged that the said will is spurious and a manufactured document.

The respondent No.1, in couRs.of his arguments in the counter affidavit, has prayed for dismissal of the application for stay.

In the affidavit in reply, the allegations against the genuineness of the will have been denied.

Having gone through the impugned judgment it seems that the learned Single Judge reviewed his own order dated November 8, 2016 passed in G.A.2868 of 2016 and considered the implementation of the said order regarding re-examination of plaintiff’s witness, Ashoke Kumar Roychowdhury.

It has been held that the evidence tendered during re-examination has to be ignored against the backdrop of the present case and that the plaintiff has failed to establish its case.

The suit has been dismissed.

It is obvious that in the impugned judgment that no particular issue has been decided.

Prior to refusing to accept the result of re-examination of said witness, the will in question and signatures of testator and attesting witness were kept on record as exhibits, which means that the same were admitted in evidence.

It is true that upon admission of a document as a piece of evidence, it does not become sacrosanct, neither is it excluded from evidence for consideration.

However, the evidentiary value of the same may be adjudged.

In the instant case, even in case of denial by the attesting witness, of execution of the said will, the plaintiff could have taken the recouRs.of section 71 of the Evidence Act for proving execution of the will by other evidence but, in this case, the plaintiff was not given such opportunity.

Act of the commissioner who is duly appointed by Court is presumed to be the act of Court until such act is refused acceptance by order of Court.

The Case of the defendants, as made out in the affidavit of caveators has also not been discussed.

There is no discussion about evidence of defendant respondent which was recorded on commission in the conference room of this High Court on 30.11.2016 and the exhibited documents which were marked at the time of recording his evidence.

It transpires from the records of the FiRs.Court, that several amendments of plaint had taken place during the pendency of the suit but defendants were not given an opportunity to file additional written statement, notwithstanding the fact that, at the time of hearing the G.A.782 of 2016 the learned advocate for the defendants had contended, that some incorrect statements were made in the application for converting the proceeding into Letters of Administration.

He had insisted for filing the opposition, to said application.

It is significant to note, that in the FiRs.Court, after registering the testamentary suit No.3 of 2002 and converting the PLA No.197 of 1999, issues were not framed and procedures of the Code of Civil Procedure 1908 relating to admission, inspection, discoveries etc.before peremptory hearing of a suit were not at all followed.

No decree has yet been pronounced in the suit on the basis of the impugned judgment.

In our opinion, in a civil suit, final adjudication requires the compliance of due process of law.

As per the applicable provisions of the Code of Civil Procedure, passing of final judgment without framing of issues in a contentious suit of like nature is thus unwarranted.

We are compelled to hold in this appeal that the impugned judgment dated 30th March, 2017 is liable to be set aside and therefore, set aside accordingly.

However, we would like to make it clear, that the contention against the impugned judgment made out in the grounds of appeal, about the facts and law have not been adjudicated upon or accepted by us in this judgment.

In our opinion, this is a fit case for remission to the FiRs.Court on remand for de novo hearing after giving an opportunity to the defendants to file additional written statement, if any, for disposal of the suit in accordance with law.

The oral evidence recorded and documentary evidence exhibited earlier in the suit for both the parties are hereby cancelled.

However, the oral evidence recorded earlier may be used as previous statements of witnesses by either party during the de novo trial for the purpose of corroboration or contradiction, as per the provisions of the Evidence Act.

The documents which have been filed in suit may again be marked exhibits if duly proved in accordance with law during such de novo trial.

Accordingly, let the testamentary suit No.3 of 2002 be sent back to the FiRs.Court for a de novo hearing and disposal, as observed above.

This appeal along with application for stay are disposed of accordingly.

There shall be no order as to costs.

Urgent photostat certified copy of this judgment and order, if applied for, be supplied to the parties on priority basis upon compliance with all requisite formalities.

I agree with the conclusion, (BISWANATH SOMADDER, J.) (SANKAR ACHARYYA, J.)