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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.D. DHANUKA, J.
Mr. Jitendra Singh Rajendra Singh Kushwah & Ors.
Vs.
Suresh Rajendra Singh Kushwah
Petition No. 832 of 2010
Decided On : 29th October, 2013
Civil Procedure Code, 1908 - Order XVIII, Rule 4 - Production of evidence on affidavit. - Evidence not related to issue involved in suit, cannot be produced on affidavit in lieu of examination-in-Chief. - As far as maintainability of this Chamber summons is concerned, on perusal of Rule 121 (5) and 121 (38), since 121 (5) applies to the pleadings and not to evidence, such rule will not apply to the application filed by the plaintiff for striking of the part of the evidence. As far as Rule 121 (38) is concerned, that gives. Discretionary power to the Court to dispose of the matters which are not expressly required to be disposed of in the Court by hearing the same in chambers. The said rule also does not apply to such application. Section 151 of the Code of Civil Procedure, 1908, gives inherent powers to the Court to strike of the irrelevant evidence at this stage with a view to avoid any further delay in the matter and to avoid any cross-examination on irrelevant issues. Part of the evidence which is on the face of it irrelevant and not relevant to the issue involved or issue which the Court ultimately cannot decide, can be struck of and/or can be ignored even before commencement of cross-examination.
Succession Act, 1925 - Section 63 - Evidence Act, 1872, Section 136 - Production of evidence. - Since Court while exercising testamentary jurisdiction cannot decide question of title of deceased or third party hence no evidence about title in respect of properties of deceased or any third party can be laid. - On perusal of the issues framed by this Court, it is clear that the issues which are required to be proved by the parties is limited to the execution of the Will and as to whether deceased was in sound state of mind at the time of execution of the Will. This Court while exercising the testamentary jurisdiction cannot decide the title in respect of the properties of the deceased or any third party in this testamentary suit. On perusal of paragraphs 13 to 17 of the affidavit in lieu of examination, it is clear that defendant has alleged that various properties described therein were ancestral properties and such properties could not have been bequeathed by the deceased testator by Will. Defendant also has set up adverse title in the said properties. Since this Court cannot decide the title in respect of the properties of the deceased or third party, while exercising testamentary jurisdiction deposition made in paragraphs 13 to 17 of the affidavit in lieu of examination in chief disputing the title to the properties of the deceased or his power to bequeath the property by Will, are not relevant to the issue framed in this suit and thus no evidence on such allegation made by the defendant can be laid.
Plaintiffs have filed an application for striking of the order deleting paragraph 3, 4, 13 to 17 from the affidavit dated 18th March, 2013 filed by the defendant/caveator filed in lieu of examination in chief. Defendant/caveator has filed affidavit in reply to this application.
2. Mr. Shah, learned senior counsel appearing for the plaintiff invited my attention to paragraphs 3, 4, 13 to 17 of the affidavit in lieu of examination in chief filed by defendant on 18th March, 2013. The learned senior counsel also invited my attention to the issues framed by this court on 23rd August, 2012. The Testamentary petition was filed by the executor in this court inter alia praying for probate in respect of the alleged will and testament dated 10th May, 2006. This court has framed the following issues:
1. Whether the last Will and testament of the deceased, Rajendra Singh Chhatrasal Singh dated 10th May, 2006 was validly executed.
2. Whether the deceased was in sound state of mind at the time of execution of the Will.
3. What relief, if any, is the plaintiff entitled to?
3. Learned senior counsel submits that by an order dated 23rd August, 2012 read with order dated 23rd January, 2013, plaintiff has been permitted to lead evidence in rebuttal if required. Evidence of two additional witnesses is complete. Learned senior counsel submits that in paragraph 3 and 4 of the affidavit in lieu of examination in chief filed by the defendant, it is deposed by defendant that the deceased parents were also staying with the plaintiffs at Santacruz address since 1982 and not at the address mentioned by the plaintiff. Learned senior counsel submits that paragraph 3 and 4 of the said affidavit are not relevant or material in any manner for deciding the petition for probate. Whether the said deceased was staying at the address mentioned by the plaintiff or at the address mentioned by the defendant is irrelevant for the purpose of deciding whether the said deceased had validly executed the Will and testament dated 10th May, 2006 or whether he was in sound state of mind at the time of execution of the Will. Learned senior counsel submits that similarly in paragraphs 13 to 17 of the affidavit in lieu of examination in chief, defendant has raised dispute in respect of certain properties which according to defendant, the said deceased could not have bequeathed. He submits that the issue of title cannot be decided by this court in testamentary proceedings and thus evidence if any on the issue of title would not be relevant or material in any manner for deciding the probate petition/testamentary suit. Mr. Shah submits that this legal position is not in dispute.
4. Mr. Shah learned senior counsel placed reliance on Order 18 Rule 2 of the Code of Civil Procedure, 1908 in support of his submission that evidence has to be led in support of the issues which the party is bound to prove and not on any other irrelevant issues. Learned senior counsel submits that the dispute about address of the said deceased or whether the said deceased could have bequeathed some of the properties as mentioned in the affidavit in lieu of examination in chief, are not the issues in respect of which evidence can be led by the defendant. It is submitted that since all these paragraphs referred to aforesaid are not relevant in support of the issues involved, these paragraphs are required to be struck off at this stage. It is submitted that if this part of evidence which is not relevant is not struck of, there wil1 be unnecessary lengthy cross examination of the defendant which would not be in the interest of any party. Order 18 Rule 2 and 4 of the Code of Civil Procedure read thus:
"2. Statement and production of evidence.- (1) On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove.
(2) The other party shal1 then stat
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