1. In this application the question is whether the defendants should be ordered to give further and better answers to certain interrogatories. These interrogatories fall under two classes, and different considerations apply to them. In the first place the first, second and third interrogatories, and a portion of the sixth interrogatory, refer to a certain issue which the plaintiff alleges arises in this suit.
2. About the suit it is only necessary to say that the plaintiff claims certain rights under the will of her late husband Rakhaldoss Law, and a question is raised as to what is meant by the term 'family' as used in the will.
3. It has been held by this Court that the term 'family' includes all persons residing in the house of the testator at the time of his death, whether as dependent members of his family or not. The interrogatories to which I have specifically referred do not, any of them, ask the defendants to state who the persons were, who were living in the household of the testator at the time of his death; but they are so framed that what the defendants are invited to say is, who, in the contemplation of the testator, constituted his family. It appears to me that interrogatories so framed are not such as the Court will compel parties to answer. They are directed not to ascertain actual facts, but to obtain the opponents' views as to the construction of the will. The authority cited in Seton, p. 61, shows that interrogatories of that character are not allowable.
4. As regards the other interrogatories a very different question arises. It appears that the defendants have in the usual course, and in obedience to the order for discovery under Section 129 of the Civil Procedure Code, filed a list of documents with the usual affidavit stating that, except as to the documents particularly mentioned in the list, they have not any documents in their possession relative to the-matters in question in the suit.
5. The plaintiff being dissatisfied with that affidavit and asserting that, besides the documents specifically mentioned and referred to in the list, the defendants have certain other documents relative to the suit in their possession, made an application to consider the sufficiency of the affidavit. In answer to that application the defendants filed another affidavit in effect admitting possession of the specific documents referred to, but denying that they were in any way relevant to the questions arising in the suit. The learned Judge who heard the application thought that for the purposes of discovery the defendant's original affidavit was conclusive, and dismissed the application.
6. What the plaintiff now contends is that she is entitled by means of interrogatories Nos. 7 and 8 to cross-examine the defendants as to the specific documents admitted to be in the defendant's possession, but the relevancy of which the defendants deny. It is admitted that these documents are not disclosed in the defendant's original list of documents. The plaintiff now seeks by means of interrogatories to obtain further admissions from the defendants as to these documents. The question then is whether, according to the practice of the Court or under the Civil Procedure Code, the plaintiff is entitled to take that course.
7. On this point a great many English authorities have been cited, but I think on a careful examination of these authorities that very little assistance is to be derived from them in determining a question which is really governed by the Civil Procedure Code.
8. In the first place I think it sufficiently appears from the Civil Procedure Code that interrogatories viewed as machinery for eliciting facts bearing upon issues arising in suits are intended only to have a limited operation. The case of Ali Kader Syud Hossain Ali v. Gobind Dass I.L.R. 17 Cal. 840, explains one direction in which the Code limits the scope of operation. To my mind Section 134 of the Code clearly indicates another direction in which the scope of interrogatories was intended to be limited.
9. Section 121 of the Code states when interrogatories may be delivered for the examination of the opposite party; Section 125 states the circumstances under which a party may decline to answer interrogatories which have been administered.
10. In Section 129 power is given to the Court to order any party to the suit to declare by affidavit all the documents which are or have been in his possession or power relating to any matter in question in the suit, and any party to the suit may at any time before the first hearing apply to the Court for a like order. The practice which has been adopted in this Court under Section 129 is that the party applies, without any affidavit in support of his application, that the opposite party may be directed to declare on affidavit the documents in his possession relative to the matters in question in the suit.
11. Sections 130 to 133 all deal with the production and inspection of the documents, but Section 134 shows what is to be done in the event which has happened in the present case, namely, when one party alleges that the other party has documents in his possession relative to matters in suit which have not been disclosed by his affidavit. In such a case the applicant is to come before the Court with an affidavit showing (a) of what documents inspection is sought; (b) that the party applying is entitled to inspect them; (c) that they are in the possession or power of the party against whom the application is made. The applicant must, therefore, show inter alia that the documents of which he claims inspection are relevant to the matters in question in the suit. That appears under Section 130, because it is that section only which gives the Court power to order production of documents relating to any matter in question in the suit, and the Court has no power to order the production of any other document.
12. It appears to me that Section 134 indicates that it was intended that a party in a case, such as the present, should proceed, not by way of interrogatories, but according to the procedure laid down in that section. The Code does not, I think, contemplate that a party should be compelled to give discovery of documents by means of interrogatories or otherwise, the relevancy of which is denied. It is necessary that the Court should, in the first instance, be satisfied of this relevancy.
13. It is suggested that as, for the purposes of an application under Section 130, the original affidavit of a party denying that he has in his possession documents retative to the suit other than those specified in his list is conclusive, so also in an application under Section 134 the affidavit of a party would be conclusive on the issue of relevancy. This question does not now arise, and I am not at present prepared to accept the proposition thus broadly stated.
14. The cases cited on this point are cases on the question of privilege, which I think stands on a different footing. In the case where a party has claimed to seal up portions of a document, the Court has sometimes appointed an officer to enquire and report as to the relevancy of the portions sought to be sealed up.
15. I think the case of Weideman v. Walpole L.R. 24 Q.B.D. 537 is an authority which goes to show that the construction which I have put on Section 134 is correct. It is based on Order 31, Rule 18, which is similar in terms to Section 134 of the Code. At page 541 Huddleston, B., says: 'The right of a party with reference to inspection is now governed by Order 31, Rule 18 which provides that, except in the case of documents referred to in the pleadings or affidavits of the party against whom the application is made or disclosed in his affidavit of documents, such application shall be found upon an affidavit shewing of what documents inspection is sought, that the party applying is entitled to inspect them, and that they are in the possession or power of the other party.' But what possible meaning can be given to that provision, if the contention of the plaintiff is right, and if the non-disclosure in the affidavit of documents of the document sought to be inspected precludes the applicants from making an affidavit that such document is in the possession of the other party? 'And Mr. Justice Vaughan Williams comes to much the same conclusion. At page 542 that learned Judge says: 'But when one comes to look at Rules 17 and 18, which deal with the subject of inspection, they both of them seem to contemplate) the possibility of a party obtaining inspection of documents as to which the other party has made no admission whatever. It seems to me plain that Rule 17 means to give any litigant a right if he chooses, not only to give notice to his opponent to produce the documents as to which he has made admissions, but also to produce documents which have not been mentioned in the affidavit of documents or in any other affidavit. Then Rule 18 provides what shall be done in case the party to whom the notice is given does not comply with such notice, namely, that in the case of documents not referred to in the pleadings or any affidavit of such party, nor disclosed in his affidavit of documents, the party desiring inspection may make 'an affidavit showing of what documents inspection is sought, that the party applying is entitled to inspect them, and that they are in the possession or power of the other party.' Mr. Davis endeavoured to reconcile that provision with his contention by suggesting that it was meant to apply only to oases where the party against whom inspection is sought has made no affidavit negativing the possession of such documents, but that where he has by his affidavit of documents already negatived the possession of such documents his affidavit is conclusive. And I am very far from saying that that is not a possible meaning of the rule. But, on the whole, I incline to the view that that is not the meaning which was intended. 1 think it is much more convenient that Rule 18 should be construed as applying to every case in which the party desiring inspection is able to state of his own knowledge that the other party is in possession of documents and that they are relevant. To my mind the proper course is to entertain the application upon an affidavit by the applicant as to the other side's possession of the documents, and as to their relevancy, and then to allow the other party to make an affidavit in answer. I may say for myself, although the question does not arise here, that, in my judgment, if the other party does make such an affidavit in answer, his affidavit, when made, is conclusive in the same way as his affidavit of documents is conclusive on the subject of discovery.'
16. What I understand the learned Judge to lay down is that, just as for the purposes of discovery an affidavit of documents denying possession is conclusive, so for the purposes of production and inspection an affidavit denying possession of such documents would be equally conclusive. Obviously it would be futile to order a party to produce a document which he swears is not in his possession. But even supposing I thought it a question of discretion as to whether I should compel the defendants to answer these interrogatories, still, inasmuch as they have already in effect admitted possession of the documents in question, I think it would be useless and unnecessary to compel them to make a further answer. For these reasons, I think, this application must be refused with costs.