SAMIR RANJAN ROY Vs. USHA MITRA

JUDGEMENT

(1.) THIS is an application under Article 227 of the Constitution of India and this is directed against the order no. 11 dated 15/3/2007 passed by the learned Additional District judge, Barasat, District ? North 24 Parganas in Other Suit No. 13 of 2006 wherein he has directed the petitioner to file the original will or an authenticated copy of the said will by the next date.

(2.) THE fact of the case in short is that the petitioner instituted the Probate Case No. 255 of 2005 before the learned district Judge, North 24 Parganas on the basis of a deed of will alleged to have been executed on 26. 11. 2000 by the father-in-law of the petitioner. According to him, he was appointed as the executor of the will. The original deed of will was left with the wife of the executant. After death of the executant, the petitioner filed the application for grant of probate with the photocopy of the said will dated 26. 11. 2000. As the opposite parties contested, the said probate case was re-numbered as other suit no. 13 of 2006. Then the petitioner filed an application before the court for a direction upon the opposite party no. 1 to produce the original will dated 26. 11. 2000 and she declined. The court passed the impugned order as stated above. So the petitioner has filed the present application.

(3.) ON perusal of the materials on record, and on consideration of the submission of the learned advocate for the petitioner, I find that the petitioner himself filed the probate case on the basis of the last will alleged to have been executed by his father-in-law, late Motilal Mitra. The petitioner has contended that the said will was executed on 26. 11. 2000 and Motilal Mitra died on 18. 06. 2004. The petitioner filed the probate case in the year 2005 with a photocopy of the alleged will on the ground that the original had been kept by the opposite party no. 1, wife of late Motilal Mitra. Thus, I find that though the probate case was filed after about 5 years from the date of its execution, the petitioner was not able to have the original at all during such long period of 5 years. It is his contention that the wife of the executant had kept the same. While contesting the said Other Suit no. 13 of 2006, the wife/opposite party no. 1 has contended that she is not in possession of the alleged will at all. This being the position, I hold that no direction can be given upon the opposite party no. 1 to produce the so-called original deed of will. Thus, i do not find anything wrong in the impugned order. The petitioner has referred to Section 237 of the Indian Succession act in support of his contention. This provision can be availed of by the petitioner when the original is lost or in the possession of the opposite party but neither of the two conditions is fulfilled in the instant situation. In the circumstances, the court is right in passing the impugned order directing the petitioner either to produce the original document or a properly authenticated copy of the will as per Section 237 of the Indian succession Act, in default the suit will be disposed of according to law. So I find no material irregularity in passing the impugned order. There is no illegality in the impugned order too.