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2014 Supreme(Bom) 1115
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.D. DHANUKA, J.
Mahabanoo Navroz Kotwal – Petitioner/Plaintiff
Versus
Piloo Fali Bomanji, Amarchand Mansion, Mumbai – Caveators/Defendants
Chamber Summons (L) No. 67 of 2014 in Testamentary Suit No. 26 of 1999 in Testamentary Petition No. 504 of 1998
Decided On : 10.6.2014
Mr Rajesh Shah a/w Ms Deepali Shetty a/w Ms Harshal Manik i/b M/s Rustomji & Ginwala for applicant in chamber summons & plaintiff.
Mr Mayur Khandeparkar i/b Janhavi Bejoy for respondents in chamber summons and defendant Nos. 1 and 2.
Headnote:
TESTAMENTARY SUIT - OBJECTION TO AFFIDAVIT IN LIEU OF EXAMINATION-IN-CHIEF - RELEVANCY OF EVIDENCE - COURT'S POWER TO IGNORE IRRELEVANT EVIDENCE - APPLICABILITY OF SECTION 136 OF THE INDIAN EVIDENCE ACT, 1872.
Fact of the Case:
In a testamentary suit, the defendants filed an affidavit in lieu of examination-in-chief of Dr. Navroze Kotwal, one of the alleged executors of the deceased's will. The plaintiff objected to certain portions of the affidavit, arguing that they were irrelevant and beyond the scope of the pleadings.
Finding of the Court:
The court held that the objected portions of the affidavit were indeed irrelevant and beyond the scope of the pleadings. It relied on Section 136 of the Indian Evidence Act, 1872, which empowers the court to ask a party proposing to give evidence in what manner the alleged fact, if proved, would be relevant, and to admit the evidence only if it deems it relevant. The court also noted that the defendants had already led evidence of three witnesses on the issues framed, and that the evidence of Dr. Kotwal was contrary to his own earlier affidavit in which he had admitted the execution of the will.
Issues: 1. Whether the objected portions of the affidavit were relevant and admissible in evidence? 2. Whether the court had the power to ignore irrelevant evidence at the stage of recording evidence?
Ratio Decidendi: 1. The court held that the objected portions of the affidavit were irrelevant and inadmissible in evidence because: a. They were not relevant to any of the issues framed in the suit. b. They were beyond the scope of the pleadings filed by the defendants. c. They were contrary to the deponent's own earlier affidavit in which he had admitted the execution of the will. 2. The court held that it had the power to ignore irrelevant evidence at the stage of recording evidence, relying on Section 136 of the Indian Evidence Act, 1872, which empowers the court to ask a party proposing to give evidence in what manner the alleged fact, if proved, would be relevant, and to admit the evidence only if it deems it relevant.
Final Decision: The court allowed the plaintiff's objections and directed that the objected portions of the affidavit be ignored while recording the evidence of Dr. Kotwal. The plaintiff was not required to cross-examine Dr. Kotwal on those portions of the affidavit.
R.D. DHANUKA, J.
1. By this chamber summons, the applicant (original petitioner/plaintiff) seeks an order and direction that some of the portion of the affidavit in lieu of examination-in-chief filed by Dr Navroze S. Kotwal on 8th April 2014, proposed to be examined as a witness by the defendants be expunged from the affidavit or appropriate order be passed for ignoring those portion referred in the schedule appended to the chamber summons while recording his evidence as witness of the defendants. Some of the relevant facts for the purpose of deciding this chamber summons are as follows:
2. On 10th June 1998, the applicant herein filed testamentary petition No.504 of 1998 interalia praying for probate of the alleged last Will and Testament of Nergish Keki Cassad @ Nergish Keki Casad. It is the case of the applicant that under the said alleged last Will & Testament dated 7th February 1996 of the said Mrs. Nergish Keki (herein after referred to as the said deceased), the applicant as well as Dr Navroze S. Kotwal were appointed as executors of the said Will. Under the said alleged Will & Testament, some of the properties are bequeathed by the said deceased in favour of the applicant. Along with the said testamentary petition, the applicant filed an affidavit of Dr Navroze S. Kotwal affirmed on 10th June 1998. In the said affidavit, the said deponent stated that he was executor named in the last Will & Testament dated 7th February 1996 of the deceased. The applicant who is coexecutrix has applied for the probate of the said last Will & Testament reserving his right of the said deponent to apply for the probate of the said Will. In the said affidavit, the said deponent reserved his right to come in and apply for the Probate of the said last Will & Testament dated 7th February 1996 of the deceased and further stated that he had no objection to the probate of the said Will being granted to the petitioner therein.
3. Upon filing caveats by the two caveators, the said petition was converted into a suit. In the affidavit in support of caveat, the caveators disputed that the said deceased at all executed any Will. The caveators also denied that the petitioner was executrix and Dr Navroze S. Kotwal was the executor of the said Will.
4. On 7th January 2002 this Court framed following issues.
(1) Whether the plaintiff proves that the deceased (Nergish Keki Cassad) executed a Will dated 7th February, 1997?
(2) Whether the plaintiff proves that the said deceased was of a sound and disposing mind at the time of making of the Will?
(3) Whether the plaintiff proves that the said Will was executed by the deceased of her own free will?
(4) Whether the plaintiff proves that the deceased was in a position to give instructions to the Attorney for preparing the Will?
(5) Whether the defendant proves that there was any undue influence or coercion on the deceased into making the Will?
(6) What order?
5. It is not in dispute that the plaintiff/applicant and defendants examined three witnesses each. During the pendency of this petition/suit, there was a dispute between the applicant and her husband Dr Navroze Kotwal. Matrimonial proceedings filed by the applicant and the said Dr Navroze Kotwal are pending in the family Court. In such proceedings, Dr Navroze Kotwal has filed an affidavit making certain allegations against the applicant.
6. On 12th February 2014, the defendants filed Judges Order (22/2014) in the suit inter alia praying for issuance of witness summons upon Dr Navroze Kotwal for recording evidence. It was the case of the defendants in affidavit in support of Judges Order that Dr Navroze Kotwal had been cited as one of the alleged executor in the alleged Will of which the plaintiff had applied for probate. In the matrimonial proceedings, Dr Kotwal had filed affidavit in reply to the counterclaim filed by the applicant. It is the case of the defendants that in the said affidavit, various statements of Dr Kotwal which are not only relevant facts b
