Case Note & Summary
The applicant, Mrs. Mahabanoo Navroz Kotwal, filed a testamentary petition for probate of the alleged last Will and Testament of Nergish Keki Cassad, dated 7th February 1996. The applicant and Dr. Navroze S. Kotwal were named as executors. The petition was converted into a suit after caveats were filed by two caveators, who disputed the execution of the Will. Issues were framed on 7th January 2002. During trial, the defendants proposed to examine Dr. Navroze S. Kotwal as their witness and filed his affidavit in lieu of examination-in-chief on 8th April 2014. The applicant filed a chamber summons seeking to expunge certain portions of that affidavit, claiming they were irrelevant, scandalous, and prejudicial. The court examined the impugned paragraphs and found that they contained statements about the deceased's mental state and alleged undue influence, which were not relevant to the issues framed. The court held that such portions should be expunged to prevent prejudice and ensure a fair trial. The chamber summons was allowed, and the impugned portions were directed to be ignored while recording evidence.
Headnote
A) Civil Procedure - Expungement of Evidence - Irrelevant and Scandalous Portions - Indian Evidence Act, 1872, Sections 5, 136 - The court considered whether portions of an affidavit in lieu of examination-in-chief that are irrelevant, scandalous, or prejudicial should be expunged. The applicant sought expungement of certain paragraphs from the affidavit of Dr. Navroze S. Kotwal, a witness for the defendants, on grounds of irrelevance and prejudice. The court held that such portions which are not relevant to the issues in the suit and are likely to prejudice the trial must be expunged to ensure a fair trial. (Paras 1-10)
Issue of Consideration
Whether portions of an affidavit in lieu of examination-in-chief filed by a witness proposed by the defendants, which are irrelevant, scandalous, or prejudicial, should be expunged from the record.
Final Decision
The Chamber Summons was allowed. The impugned portions of the affidavit in lieu of examination-in-chief filed by Dr. Navroze S. Kotwal on 8th April 2014 were directed to be expunged and ignored while recording his evidence.
Law Points
- Expungement of irrelevant evidence
- Affidavit in lieu of examination-in-chief
- Relevance under Indian Evidence Act
- 1872
- Right to fair trial
- Testamentary proceedings
Case Details
Chamber Summons (L) No.67 of 2014 in Testamentary Suit No.26 of 1999 in Testamentary Petition No.504 of 1998
Mr Rajesh Shah a/w Ms Deepali Shetty a/w Ms Harshal Manik i/b M/s Rustomji & Ginwala for applicant; Mr Mayur Khandeparkar i/b Janhavi Bejoy for respondents
Mrs Mahabanoo Navroz Kotwal
Piloo Fali Bomanji and Ms Pravin Rustom Tata
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Nature of Litigation
Testamentary suit for probate of a Will, with a chamber summons seeking expungement of portions of an affidavit in lieu of examination-in-chief.
Remedy Sought
The applicant (original petitioner/plaintiff) sought an order to expunge certain portions of the affidavit in lieu of examination-in-chief filed by Dr. Navroze S. Kotwal, a witness proposed by the defendants, or to ignore those portions while recording his evidence.
Filing Reason
The applicant contended that the impugned portions of the affidavit were irrelevant, scandalous, and prejudicial, and not related to the issues framed in the suit.
Previous Decisions
Issues were framed on 7th January 2002. The suit was pending trial.
Issues
Whether the impugned portions of the affidavit in lieu of examination-in-chief are irrelevant and should be expunged.
Submissions/Arguments
The applicant argued that the impugned portions were irrelevant to the issues and would prejudice the trial.
The defendants opposed the application, contending that the portions were relevant to the defence.
Ratio Decidendi
Portions of an affidavit in lieu of examination-in-chief that are irrelevant to the issues in the suit and are likely to prejudice the trial must be expunged to ensure a fair trial, in accordance with the principles of relevance under the Indian Evidence Act, 1872.
Judgment Excerpts
By this chamber summons, the applicant (original petitioner/plaintiff) seeks an order and direction that some of the portion of the affidavit in lieu of examination-in-chief filed by Dr Navroze S. Kotwal on 8th April 2014, proposed to be examined as a witness by the defendants be expunged from the affidavit or appropriate order be passed for ignoring those portion referred in the schedule appended to the chamber summons while recording his evidence as witness of the defendants.
Procedural History
The applicant filed Testamentary Petition No.504 of 1998 on 10th June 1998 for probate of a Will. Caveats were filed, converting the petition into Testamentary Suit No.26 of 1999. Issues were framed on 7th January 2002. On 8th April 2014, the defendants filed an affidavit in lieu of examination-in-chief of Dr. Navroze S. Kotwal. The applicant filed Chamber Summons (L) No.67 of 2014 on an unspecified date seeking expungement of portions of that affidavit. The chamber summons was heard and judgment reserved on 5th May 2014, and pronounced on 10th June 2014.
Acts & Sections
- Indian Evidence Act, 1872: Sections 5, 136
