V.SAFARULLAH Vs. GRACY JOSEPHINE LAMBIE

JUDGEMENT

(1.) What is the procedure to be followed by a Court when a case record goes missing is the question that arises for consideration in this original petition.

(2.) The facts in a nutshell are, the petitioner is a co- owner of the property comprised in Resurvey No.558 in Block No.3/10 in Kannur-1 Village, having an extent of 6.88 Ares, covered by Ext P3 basic tax receipt and Ext P4 possession certificate. The property originally belonged to Andrew Rodger Lambie. The erstwhile owner had by an unregistered Will (Ext P1) dated 4.1.1961 bequeathed the property in favour of his wife - the respondent. The respondent, on the death of her husband, filed OP No.48/1964 (Ext P9) before the Court of the District Judge, Thalasserry, seeking letters of administration with Will annexed in respect of item No.2 in Ext P1. By Ext P2 judgment the original petition was allowed. The respondent sold the property to the petitioner's predecessors in interest. Ultimately, by document No.1685/1971, the property was assigned in favour of the petitioner's mother and other relatives. Now, the property has vested on the petitioner and his siblings, who are desirous of constructing a building in the property. They approached a Bank for financial assistance, but the Bank has insisted for a certified copy of the Will. In the said circumstances, the petitioner filed Ext P5 copy application, Ext P6 Vakalath and Ext P7 list of documents before the District Court in OP No.48/1964, to obtain the certified copy of Ext P1. The endorsement on Ext P9 original petition substantiates that the Will was marked as Ext A1 in evidence. However, by Ext P8 endorsement made on Ext P7, the Record Clerk has returned Exts P5 to P7 for the reason that the Will cannot be traced. The petitioner seeks to set aside Ext P8 endorsement and a direction to the District Court to issue the certified copy of the Will.

(3.) When the original petition came up for consideration on 17.11.2020, this Court had called for a report from the District Court.