DOLAGOVINDA PRADHAN Vs. BHARTRUHARI MAHATAB

JUDGEMENT

(1.) The Civil Revision Nos. 34, 40 and 46 of 1990 arise out of the common order dated 9 -1 -1990 passed in Original Suit No 48 of 1989 in the Court of the Subordinate Judge, First Court, Cuttack disposing of applications filed in the said suit. The said three applications are as follows: (A) A petition under Order 11, Rules 12 and 14 read with Section 151 of the Civil Procedure Code filed by the petitioner for discovery and production of documents as per the list given in Annexure -X to the Civil Revision No. 39 of 1990 which is the same as Annexure -A to the petition Under Section 276 of the Indian Succession Act. (B) A petition under Order 16, Rule 5 read with Section 151, CPC calling for documents, the list of which is given in Annexure -Y of the Civil Revision No. 39 of 1990. (C) The third application was filed for analogous hearing of Original Suit No. 48 of 1989 with Original Suit No. 831 of 1988, filed by the petitioner in Civil Revision. No. 46 of 1990 namely Basanta Kumar Biswal.

(2.) THE short facts relating to the suit in question are stated below : Dr. Harekrushna Mahatab died on 2 -1 -1987 leaving behind a Will in favour of his son Bhartruhari Mahatab, opp. party in all the revisions. By his Will he bequeathed all his properties wherever situate without specifically mentioning them in the Will. There was no specific reference to any particular item of the property in the Will. On his death the legatee namely Bhartruhari Mahatab filed an application Under Section 276 of the Indian Succession Act for grant of probate in his favour which was registered as Misc. Case No. 14/35 of 1987. Since there was objection to the probation of the Will, the Misc. Case was subsequently registered as Original Suit No. 48 of 1989 in the Court of the Subordinate Judge, First Court, Cuttack. Dolagovinda Pradhan, the petitioner No. 1 in Civil Revision No. 39 of 1990 and Civil Revision No. 40 of 1990 was one of the objectors to the grant of letter of administration in respect of one of the items of the property situated in Cuttack Town claiming that the same did not belong to the testator and was rejected by the Subordinate Judge by order dated 8 -3 - 1989 in Misc. Case No. 14/35 of 1987 against which order Dolagovinda Pradhan preferred a civil revision bearing No. 303 of 1989 in this Court The Civil Revision No 303 of 1989 was heard by Hon'ble Mr. Justice S. C, Mohapatra and by his order dated 7 -4 -1989 reported in 68 (1989) C.L.T. 316 his Lordship held thus : 'xx xx Judgment in a probate proceeding is a judgment in tern. Accordingly, any person who has appeared can see the proceeding. Seeing the proceeding would include raising objection and for that purpose cross -examining the witnesses also. He. can also examine witnesses. In this case, petitioner wanted to contest the grant of letters of administration in respect of one item of the property situated at Cuttack claiming that the same does not belong to the testator.' His Lordship also held thus: 'On payment of the costs, he shall be permitted to fife Ms objection whereupon, issues shall be settled and the same shall be disposed of as a suit.' This Court also directed that the proceeding shall be concluded at an early date preferably by end of November, 1989. After conclusion of the civil revision in this Court, Issues were framed in Original Suit No. 48 of. 1989. One of the said Issues reads as follows : 'was the properties in item No. IV of the 'A' schedule (immovable) the personal property of Dr. M. K. Mahatab at the lime of his, death or the same belonged to 'Prajatantra Prachar Samiti'? Because the matter was tried as a suit and this issue was framed along with other Issues, the petitioner felt it necessary to file 2. applications one under Order 11, Rules 12 and 14 read with Section 151, CPC for discovery and production of documents and the another under Order If. Rule 5 read with Section 151, CPC for calling for the documents as per the list. Besides another application, as already stated, was filed for analogus hearing of Original Suit No. 48 of 1989 with Original Suit No. 831 of 1988. The OS No. 831/88 was filed by Basanta Kumar Biswal, the petitioner in Civil Revision No. 46 of 1990 against the opp. party_Bhartruhari Mahatab. Bhartruhari Mahatab is opp. party in all the three Civil Revisions. The OS No. 831/ 88 was filed for a declaration that the properties described in the schedule which includes item No. IV of the list of immovable, properties attached to the probate proceeding and with a prayer for removal of opp. party from the trusteeship and for permanent injunction.

(3.) THE trial Court held that although both these two documents are not very much necessary for deciding a probate proceeding, but in view of the objection raised by the respondents that such property did not belong to Dr. Harekrushna Mahatab and that the same belongs to Prajatantra Prachar Samiti and that the petitioner had wrongly included such property in the list of immovables for issue of letters of administration, those two documents namely item Nos. 2 and 6 would be relevant for proper adjudication of the issue between the parties and therefore, directed for production of those documents but refused to direct the production of rest of the documents which according to the Court were not relevant for proper adjudication of the Us so as to be called for from the appropriate authorities as stated by the respondents in their petition dated 8 -1 - !990. Accordingly the trial Court allowed the petition dated 3 -1 - 1990 filed under Order 11, Rules 12 and 14, C. P. C. partly and the prayer for calling for the other documents was rejected;