MADHAV PRASAD BIRLA Vs. STATE

JUDGEMENT

(1.) Two separate Notices of Motions have been taken out in connection with two separate matters as mentioned herein-above. Both the matters are disposed by this common judgment and order, as the question involved therein are identical and similar. Both the deceased left behind two wills of the same date dated 13th July 1982, said to have been executed by them. The applicants in both the matters have filed the aforesaid two applications for grant of probate to the aforesaid two Wills admittedly without annexing the respective original Wills. As such the present Notices of Motions have been taken out for granting leave to the Department to treat and accept the applications made by the petitioners for grant of probate with notarized true photocopy of the Wills, as regular and made in due compliance with the rquirement of law on the petitioners undertaking to produce the original Will as and when required by the Hon'ble Court; alternatively to treat and accept the application for grant of probate made by the petitioners as regular and made on the compliance of law upon the petition ers depositing the original Will with the Registrar Original Side, High Court, Calcutta in a safe custody. The grounds for the aforesaid relief taken out in the petition, made in support of the Notice of Motion are as follows : (a) Having regard to the facts that the proceeding relates to a famous industrial family matter and having received enormous publicity and making news everyday both in the print and electronic media. (b) The petitioners have noted serious apprehension that immediately upon filing of the caveats, but before copies of this, can be furnished to Sri Rajendra Singh Lodha the propounder of the said purported Will dated 18th April 1999, a substantial part of the defence had been published in various newspapers widely. (c) Therefore, the petitioners have every reason to believe that despite all usual precautions undertaken by the Department of this Court, total outsiders have been able to find access to the Department and obtained copies, till then confidential, in an unauthorized fashion. (d) Thus in order to eliminate all possible risks and danger of the original Will being lost, tampered with, defaced or damaged the aforesaid relief are required to be granted by this Court.

(2.) Mr. S. B. Mukherjee the learned Senior Counsel appearing in support of the application being G.A. No. 3156 of 2004 submits that having regard to the facts and circumstances as stated in the petition the Court in exercise of its discretion should allow his clients to maintain the present application with the copy of the Will annexed. He fairly submits that his client has not insinuated any aspersion against the Integrity and functioning of the Department of this Court and its Officer. It is not uncommon and unusual, despite all possible measure being taken by the Court vital information is leaked and the same cannot be checked. In fact in various newspapers immediately after filing of the affidavit in support of his client's caveat a substantial portion of the defence had been published widely even before supply of the copies thereof is made. The defence taken in any proceeding is meant for the Court and for Court's decision and not for understanding and knowledge of the member of the public at large and third party before hearing takes place. This basic confidentiality and secrecy cannot possibly be maintained. His client having experienced these events, apprehends that if the original Will is annexed with the petition, then there is every chance of the document being misplaced or lost. It is his client honest apprehension and to prevent the future danger the present application has been made.

(3.) He further submits that pointing out to the various Sections namely Sections 276, 237, 238, 239 and 240 of the Indian Succession Act, 1925 (hereinafter referred to as the said Act) and Rules of the Original Side of this Court submits, that there is no compulsion on part of the applicant to annex the original Will with the application for grant of probate, the same can be produced later on. He submits in particular reference to Sections 237, 238, 239 and 240 of the said Act that it is not the intention of the Legislature that filing of the original Will with the application is mandatory, had it been so, the provision for granting probate with a copy of the Will as mentioned in Sections 237, 238, 239 and 240 of the said Act would not have been there. Since his client acted under the advice of the learned lawyer who thought upon his bona fide and reasonable interpretation of the law, filing of application for the probate with the copy of the Will is permissible, if this Court is of the view that filing of the original Will along with application is mandatory then his client is prepared to produce the same before this Court and the same may be kept in the safe custody of the Registrar Original Side of this Court. That is why the present application has been made immediately after filing of the instant application.