“What is the procedure to be followed by a Court when a case record goes missing” the Kerala High Court pondered on Monday while hearing a petition seeking the recovery of a will misplaced by a District Court. (Safarulla v. Gracy Josephine Lambie)
Justice CS Dias was faced with this question after certain petitioners approached the High Court aggrieved at the rejection of their application for a document in the custody of a District Court.
The Judge highlighted that the document’s loss should have been brought to the District Judge’s notice, and a thorough search be undertaken thereafter. If needed, the High Court should be informed as well, Justice Dias states in his order.
Returning the document’s application to the petitioners, only to state that the authority was not in a position to issue the certified copy of the document sought, was unsustainable and erroneous, especially as the document was in the custody of the Court; the Bench ruled.
The petitioner, in this case, is a co-owner of some property measuring 6.88 acres. The property originally belonged to one Andrew Rodger Lambie, who bequeathed the property favoring his wife by an unregistered Will.
After Lambie’s death, his wife filed a petition before a District Judge at Thalassery seeking a letter of administration. The will was annexed to the petition submitted to the court. Accordingly, the ownership of the property is vested in the woman.
Subsequently, the woman sold her property to others who assigned it in favor of the petitioner’s mother and other relatives. The property now vests in the petitioner and his siblings.
Desiring to construct a building upon the property, the petitioner and his siblings approached a bank for financial aid. The bank, however, insisted upon a certified copy of Lambie’s Will.
The petitioner and his siblings approached the District Judge, applying a copy of the will. The Record Clerk at the Court returned the application with an endorsement, stating that the will could not be traced.
In proceedings before the High Court, the District Judge informed the High Court that the Record Clerk had undertaken a thorough search of the chest and almirah in the court, to no avail. Hence, the District Court was “not in a position to issue the certified copy of the Will.”
This particular reason was not specified in the endorsement on the application, the judge admitted in his communication to the High Court.
The search was undertaken because the application had stated that the will’s record was in a sealed cover with the Sheristadar, the judge also stated in his letter to the High Court.
The Court concluded that it was evident that the will was misplaced while keeping the District Court, while it was in ‘custodia legs.’
Pointing out that it had last year issued a detailed communication to all Subordinate Courts to handle situations where the court’s misplaced important case records, the Court pointed out that the Record Clerk had no authority to return the application.
The Record Clerk ought to have informed the District Judge about the missing document, after which a proper search should have been promptly ordered, Justice CS Dias emphasized.
Thereafter, if the document was still not found, the High Court was to be intimated. As a last resort, the reconstruction of records ordered, the Judge stated, relying on the High Court’s memorandum.
On these terms, the Court set aside the endorsement and the return of the petitioner’s application, declaring these to be erroneous and unsustainable in law.