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Shruti Das and Ors. Vs. Respondent: Sidharth Das


Company & Directors' Information:- SHRUTI LTD [Active] CIN = U26941WB1963PLC025747

Company & Directors' Information:- R SIDHARTH & COMPANY (INDIA) PVT LTD [Strike Off] CIN = U17111WB1991PTC051089

    C.M.P. No. 242 of 2016

    Decided On, 31 March 2016

    At, High Court of Orissa

    By, THE HONOURABLE JUSTICE KRUSHNA RAM MOHAPATRA

    For the Petitioner(s):- Bidyadhara Mishra, Sr. Adv. and S.K. Pradhan-3 For the Respondent(s):- S. P. Mishra, Sr. Adv., Bebekananda Bhuyan and Chittaranjan Swain



Judgment Text



Krushna Ram Mohapatra, J.

1. Order dated 07.12.2015 passed by the learned Civil Senior Civil Judge, 1st Court, Cuttack in O.S. Case No. 1 of 2013 rejecting an application of the defendants (petitioners herein) to send the Will dated 10.11.2002 to the handwriting expert to give a report with regard to the genuineness of the signature of the testator, is under challenge in this Civil Miscellaneous Petition. Factual matrix in brief relevant for adjudication of this case is as follows:-

The opposite party herein filed O.S. No. 1 of 2013 for grant of a letter of administration and probate of Will dated 10.10.2012 executed by late Dr. Bikram Das (father of the petitioner No. 1, the opposite party and husband of petitioner No. 2 herein). Said Will dated 10.10.2002 was executed in favour the opposite party. On the closure of the evidence of the opposite party, the petitioners filed an application (annexure-3) contending that the petitioners as defendants have denied the execution of the Will and signature of late Dr. Bikram Das on the alleged Will. They also in paragraph-5 of their written statement stated that the alleged signatures of late Dr. Bikram Das are fabricated. On verification of documents in Court, there appear some doubt and confusion with regard to genuineness of the signature of late Dr. Bikram Das in the alleged Will. Thus, they prayed to send the alleged Will to a handwriting expert to report with regard to the genuineness of those signatures alleged to have been given by late Dr. Bikram Das. The opposite party herein filed objection to the said Misc. case (Annexure-4) refuting contentions made under Annexure-3. He contended that there is no necessity to send the said Will for handwriting expert's opinion specifically when the signatures of late Dr. Bikram Das on the alleged Will dated 10.10.2002 has not been disputed. On a conjoint reading of the stand taken at paragraph-5 of the written statement as well as paragraph-7 of the deposition of DW-1, namely, petitioner No. 1 herein, makes it clear that the signature of late Dr. Bikram Das in the Will in both the pages are specifically admitted. Thus, there is absolutely no challenge to the signatures of late Dr. Bikram Das on the Will. Defendants had not taken any step for production of contemporaneous documents containing the admitted signature of late Dr. Bikram Das, namely, pension paper, service book, bank account and PAN card etc. for its comparison. Further, the application under Annexure-3 has been filed to delay the disposal of the case and to harass the opposite party. Thus, he prayed for dismissal of the petition (Annexure-3).
Learned Civil Judge, vide order dated 07.12.2015, holding that there is no justification in allowing such a prayer, rejected the petition (Annexure-5). Hence, this Civil Miscellaneous Petition has been filed assailing the said order.

2. Mr. Bidyadhara Mishra, learned Senior Advocate appearing on behalf of the petitioners drawing attention to paragraph-7 of the deposition of DW-1, namely, Smt. Sruti Das (petitioner No. 1 herein) submitted that the signature of late Dr. Bikram Das appearing on the 2nd page of the alleged Will was obtained on a blank paper upon which the typed materials were incorporated subsequently at the behest of Dr. Sidhartha Das (the opposite party) to manufacture the Will in question. The signature of late Dr. Bikram Das appearing on the 1st and 2nd page of the Will are different to each other. Thus, the scientific opinion on the genuineness of those signatures is essential for just adjudication of the case. He further submitted that the signature appearing on the 1st page of the Will has been fabricated. Learned Civil Judge without appreciating the same, most mechanically passed the impugned order, which is not sustainable in the eye of law. Thus, interference of this Court is warranted to find out the veracity of the case of the opposite party.

3. Mr. Bhuyan, learned counsel for the opposite party, on the other hand, submitted that the petitioners are playing hot and cold at the same time. They are taking different plea at different point of time to suit their convenience. Referring to paragraph-5 of the written statement (annexure-2), he submitted that the opposite party has taken a specific plea which is as follows:-

"5. That the alleged "will" in question has not been executed by the testator Late Dr. Bikram Das. In as much as the signatures appearing on the alleged "will" to be that of late Dr. Bikram are in fact not his genuine signatures.

In the alternative, it is contended that if in course of trial, it is established by the petitioner that any or all signatures appearing on the body of the alleged "will" are found proved to be genuine signature of late Dr. Bikram Das, still then it is contended that the alleged "will" has been fabricated taking advantage of the fact that such genuine signatures of Late Dr. Bikram Das were available on blank non-judicial stamp paper to the present petitioner who has subsequently manufactured the alleged "will" in question on such blank papers with close association of Advocate Maheswar Mohanty and Dr. Rama Raman Sarangi who are his (petitioner's) close friends."

Thus, he submitted that in one hand, the opposite party has taken a specific plea to the effect that the genuine signatures of late Dr. Bikram Das were available on blank non-judicial papers. On the other hand, DW-1 deposed in her evidence that the signatures of her father, late Dr. Bikram Das appearing on the 2nd page of the alleged Will was obtained on blank sheet (paper) in which typed materials were incorporated subsequently. The petitioners further take a stand that the signature of late Dr. Bikaram Das in the alleged Will are not genuine. Thus, they are not sure as to which or none of the signature of late Dr. Bikram Das in the alleged Will are genuine. Further a prayer for sending the Will to the handwriting expert has been made without submitting/calling for the admitted and/or contemporaneous signature of late Dr. Bikram Das. The petitioners have made a casual approach to the Court to send the alleged Will to the handwriting expert without justifying the nature of scientific opinion required from handwriting expert. Thus, the learned Civil Judge has rightly rejected the petition which needs no interference.

4. Upon hearing learned counsel for the parties, it is apparent that there is dispute with regard to the signature(s) of late Dr. Bikram Das on the alleged Will (Ext. 2/c). However, it is not clear from the pleadings as well as the submissions of Mr. Mishra, learned Senior Advocate as to which of the signature(s) of late Dr. Bikaram Das on Ext. 2/c is/are disputed by the petitioners. In a suit, where a prayer for grant of probate or letter of administration in respect of the Will is sought for, the signature of the testator along with others plays a vital role to determine the genuineness of the Will. Though no case is made out by the petitioners to send the Will to handwriting expert, the duty of the Court cannot be held to be limited to the extent of the claim made in the petition. The Court in seisin of the matter has a significant role to adjudicate upon the genuineness of the Will and for that purpose it becomes essential to determine the genuineness of the signature of the testator on the Will, the if the same is disputed. Learned Civil Judge is not an expert to compare the signature and reach at a conclusion with regard to genuineness of the signature of the testator. The report of the handwriting expert is required for that purpose which comes within the meaning of scientific investigation under Order 26 Rule 10-A of CPC. Thus, duty is cast on the Court to issue a Commission to the handwriting expert directing him to enquire into the question with regard to genuineness of the signature on the Will and report thereon to the Court. This Court in the case of Natabar Behera Vs. Batakrishna Das, reported in 1987 AIR (Ori) 7 has held that report of the handwriting expert comes within the meaning of scientific investigation. Thus, the provision provided under Order 26 Rule 10-A of CPC is applicable to such a case. In order to ascertain the genuineness of the signatures of late Dr. Bikram Das on the Will (Ext. 2/c) r, the same requires to be compared with his admitted and contemporaneous signature. It is stated at the Bar, Ext. 7, i.e., lease deed dated 28.10.2004 is a contemporaneous document in which Ext. 7/a

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to 7/j are the admitted signatures of late Dr. Bikram Das. Thus, there is no difficulty in comparing the signature of late Dr. Bikram Das available in Ext. 7 with that available in Ext. 2/c. 5. In that view of the matter, this Court in exercise of jurisdiction under Article 227 of the Constitution sets aside the impugned order and directs the learned Senior Civil Judge, 1st Court, Cuttack to send Ext. 7 as well as Ext. 2/c to the Central Forensic Laboratory at Nasik for an opinion on the genuineness of the signatures of late Dr. Bikram Das on Ext. 2/c by comparing those with his signatures marked as Ext. 7/a to Ext. 7/j on Ext. 7. It is further directed that the entire exercise shall be completed within a period of three months from the date of production of certified copy of this order. With the aforesaid direction, the CMP is disposed of. In view of disposal of the CMP, interim order dated 28.03.2016 stands vacated.
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