Md. M. H. Rajbarbhuiyan v. B. R. Dey

In view of the consensus between the learned counsel for the parties, a detailed narration of facts is not necessary. This revision application under Article 227 of the Constitution of India is directed against the order dated 20.08.2005, passed by the learned District Judge, Karimganj, in Title Suit No. 06/1993. The order dated 20.08.2005 is repro duced in its entirety herein below: (cid:28)Just after the close of cross examination of the petitioner (PW-1), a petition vide No. 36/3 has been filed stating that in this probate case the original Will could not be traced out. A draft of the lost Will purported to be executed by l ate Nabin Chandra Roy could be discovered which was registered in the Karimganj Sub-Registry Office on 11.09.1942. It is also submitted that the petitioner obta ined certified copy of the aforesaid document No.2/42 from the office of the Sad ar Sub-Registrar Sylhet, Bangladesh which is recorded in the volume Book No.3 co ntaining in page NO. 74-79. Since the district of Sylhet now lying within the territory of Bangladesh, an in dependent country a prayer is filed to exercise the provision of S-78 (6) of the Indian Evidence Act for proving the registered Will through an Advocate Commis sioner and through the office of the High Commissioner of India in Bangladesh. The respondent side raised serious objection and pleaded that the petitioner fil ed this petition No. 36/3 all on a sudden. That the petitioner filed the case in the year 1993 along with the Xerox copy of the Will and then filed the affidavi t in the year 2005 and in between this period covering 12 years, there was no st ep taken by the petitioner to lead secondary evidence in respect of the alleged Will. Hence the respondent prayed for rejecting the said petition. Both sides filed written arguments in this regard and contents of both the argum ents clearly touched the merit of the entire case and as such I find it difficul t to refer any such point raised by the parties in disposing of the petition No. 36/3 dated 16.07.2005. The provisions regarding dealing with lost or mislaid Will has been provided u/s 237, 238 and 240 of the Indian Succession Act. As per S.237 ’when a Will has been lost or mislaid since the testator’s death or has been destroyed by wrong or accident and not by any act of the testator, and a copy of the draft of the Will has been preserved, probate may be granted of s uch copy or draft, limited until the original or a properly authenticated copy o f it is produced.’ As per S.238 ’when a Will has been lost or destroyed and no copy has been made n or the draft preserved, probate may be granted of its contents if they can be es tablished by evidence.’ As per S.240 ’where no Will of the deceased is forthcoming, but there is reason to believe that there is a Will in existence, letters of administration may be g ranted, limited until the Will or an authenticated copy of it is produced.’ From the aforesaid provisions it is clear that neither S.237 nor S.238 provided for invoking the provisions of Sec. 78(6) of the Indian Evidence Act. The aforesaid provisions (S.237 & S.238) provided that the properly authenticate d copy is to be produced in case the original Will is lost or if there is neithe r original, nor copy nor draft available, probate may be granted if the petition er can establish the fact by adducing evidence. So what is required is the proper evidence which after proper scrutiny if inspir es confidence the court may grant the probate. In the instant case, a certified copy of the Will has already been furnished and evidence in this regard has already been adduced by the petitioner, who has alr eady been cross-examined by the learned lawyer for the respondent. How far the e vidence of the petitioner inspires confidence and how far the certified copy of the Will produced by the petitioner shall mould the nature of the case shall onl y be known when the final order is passed and hence this court is not inclined t o allow the prayer filed by the petitioner. It is rejected. Fixing 8.9.05 for further affidavit of the petitioner side, if any.’’ Mr. Rajbarbhuiyan, learned counsel for the petitioner submits that if the impugn ed order is allowed to stand, the petitioner may suffer grave prejudice and ther efore, the same is liable to be set aside. Mr. Dey, learned Senior Counsel for the respondents, submits that going by the order, it would appear to him that the petition of the petitioner was rej ected (cid:28)at that stage only,’’ though not reflected in the order as such. He submi ts that after both the sides adduce evidence, if the learned Trial Court conside rs it appropriate, the petition filed by the petitioner to prove the document N o. 2 of 1942, executed by Nabin Ch. Roy, details of which is given in the Schedu le to the petition, by an Advocate Commissioner as per procedure laid down in Se ction 78 (6) of the Indian Evidence Act, 1872 and through the office of the High Commissioner of India in Bangladesh may again be re-considered and if such a co urse is adopted, no prejudice will be caused to the petitioner. At the same time , such a course of action will facilitate early disposal of the case. In other words, submission of Mr. Dey is that instead of rejection of th e petition filed by the petitioner, the said petition be kept pending for consid eration at an appropriate stage, if so required. Mr. Rajbarbhuiyan, agrees in the course of action suggested by Mr. B. R. Dey. In view of the aforesaid, it is provided that if the learned Trial Court considers it appropriate in the facts and circumstances of the case, the petiti on filed by the petitioner may be considered at a later stage. With the aforesaid observations and directions, this petition is dispose d of.