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Kerala High Court sets aside Thalaserry district court order on will lost in its custody

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The Kerala High Court on Monday, while concluding a petition filed regarding the recovery of a will, misplaced by a District Court, dealt with the question, “What is the procedure to be followed by a Court when a case record goes missing?”

A single bench of Justice CS Dias has considered the aforesaid question after the petitioner herein has approached the High Court against the rejection order passed by the District Court wherein the court has rejected an application seeking a document in the custody of the said court.

As per facts of the case, 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 owner had by an unregistered Will dated 4.1.1961 bequeathed the property in favour of his wife herein as the respondent.

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 raising a loan, but the bank asked for a certified copy of the said Will. Accordingly, the petitioner and his siblings went before the District Judge and submitted an application for a certified copy of the will but unfortunately the Record Clerk has returned the Application with an comment that the will could not be traced.

During the proceedings of the High Court, the District Judge by his communication dated 24.11.2020 has informed the Court that the Record Clerk had searched for the will in the chest and almirah of the court but failed to trace the same. Therefore, it is not possible to issue a certified copy of the will.

The District Judge admitted before the High Court that the aforesaid reasoning was not stated in the rejection order. The communication of the District Judge also establishes that the Will was kept in a sealed cover in the safe custody of Sheristadar. Therefore, the Will has been misplaced or lost.

The Court made an observation that it was evident that the will was misplaced while in the keeping of the District Court.

Last year, the High Court had issued a detailed communication to all Subordinate Courts to handle situations where important case records were misplaced by the courts.

The Bench emphasised that the Record Clerk could have informed the District Judge about the missing document, after which a proper search should have been initiated. The Record Clerk had no authority to return the application.

If the document was still not found, the High Court was to be intimated as a last resort for the reconstruction of records.

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The Court, therefore, set aside the rejection order passed by the District Court by allowing the petition on the ground that it is against the guidelines issued by the High Court.

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