Documentary evidence can be admitted at a later stage in probate proceedings if necessary to resolve the real controversy, despite prior rejection based on delay.

JUDGMENT :

Subhash Chand, J.

1. By way of present civil miscellaneous petition, the petitioner prays for setting aside the order dated 21st August, 2024 passed by the learned Additional District Judge-VI, Hazaribagh in Probate T.S. No.03 of 2017, whereby and whereunder the petition filed by the petitioner/defendants dated 2nd May, 2023 and 9th May, 2024 (not mentioned in the order dated 21st August, 2024 seeking leave of the Court to accept the medical certificate/prescription of Late Arun Kumar Banerjee (Testator) and the signature of Arun Kumar Banerjee appended in the marriage certificate of the petitioner—Mouli Banerjee was rejected as there was no sufficient ground for entertaining the petition and the petitioner was further directed to produce the remaining witnesses by the next three consecutive dates without fail.

2. Learned counsel for the petitioner has submitted that probate proceeding was initiated on behalf of the Opposite Party on the basis of the Will executed by the father of the petitioner in favour of the Opposite Party Gita Devi. That probate proceeding was registered as Probate Case No.04 of 2016 which was later on converted into Probate Title Suit No.03 of 2017. In that suit, the written statement was also filed on behalf of the petitioner which is Annexure No.4 of this civil miscellaneous petition. It is further submitted that on behalf of the petitioner at the stage of evidence, an application was moved to take the marriage certificate and prescription pertaining to the illness of his father, who is alleged to have executed Will in favour of the O.P. No.1 Gita Devi, who has claimed herself to be caretaker of him and these two documents were refused to be taken on record by the learned trial court on the sole ground of delay. The issue has been framed and the evidence of the plaintiff has been concluded and the evidence of the defendants has commenced. In view of the above contended that the impugned order is based on perverse finding and same deserved to be set aside.

3. Learned counsel appearing on behalf of the Opposite Parties vehemently opposed the contentions made by the learned counsel for the petitioner and contended that these two documents were very much in knowledge of the petitioner and after framing issues and conclusion of the evidence, the same should have not be taken on record. The learned trial court has rightly rejected the application and needs no interference by this Court.

4. I have heard the learned counsel for the parties and perused the materials available on record.

5. The petition under Section 276 of the Indian Succession Act was filed on behalf of the Gita Devi against Mouli Banerjee and Ruprekha Banerjee which was registered as Probate Case No.04 of 2016 and same was converted into Probate Title Suit No.03 of 2017. The very copy of said title suit is Annexure-1 of this civil miscellaneous petition. In this petition, it has been averred that Arun Kumar Banerjee has only one daughter, namely, Mouli Banerjee, who had married and had been living in her in-law’s house having no concern with her father. The mother of Arun Kumar Banerjee, due to old age and ailment, always remained bed ridden and, as such, Arun Kumar Banerjee kept Gita Devi to provide proper service to his old mother and also for domestic work and Gita Devi provided special care and services to his mother and also did domestic work. The mother of Arun Kumar Banerjee died on 9th June, 2012 and his daughter did not come to attend the last rites of the mother. Gita Devi continued to offer her service to Arun Kumar Banerjee and his wife, namely, Ruprekha Banerjee. Being satisfied with the services provided by Gita Devi, he executed a Will in favour of the O.P. No.1—Gita Devi on 25th August, 2015. The details of the property is given in Schedule ‘A’ of this very title suit. With this suit, the copy of the Will which was notarized is also made Annexure-2 of this civil miscellaneous petition. Annexure-3 is preliminary objection