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2001 DIGILAW 730 (JHR)

Hirda Devi @ Hirdaya Devi v. Deolakhan Devi

2001-10-11

GURUSHARAN SHARMA

body2001
JUDGMENT Gurusharan Sharma, J. 1. Admittedly Shib Nandan Mishra and Raghunandan Mishra were sons of Balmukund Mishra of Village- Hariharganj. District-Palamu. 2. Shib Nandan Mishra had no male issue. His wife pre-decreased him in the year 1950. He died on 4.3.1981, leaving behind three married daughters, namely. Deo Lak-han Devi, Malti Devi alias Mular Devi and Lakhpati alias Budhan Devi. 3. Raghunandan Mishra and his son Gopal Mishra filed Title Suit No. 12 of 1982, under Section 276 of the Indian Succession Act, for grant of Probate/Letters of Administration of a Will dated 20.2.1978, said to be executed by late Shib Nandan Mishra in their favour. 4. It was contested by the three daughters of late Shib Nandan Mishra. According to them, their father never executed any Will in favour of Raghunandan Mishra and Gopal Mishra, muchless on 20.2.1978 and the alleged will propounded by those two persons was forged and fabricated document. It was created Just to defeat the interest of legal heirs of late Shib Nandan Mishra. 5. Raghu Nandan Mishra examined himself as PW 1. Two attesting witnesses of the will, namely, Radha Pathak and Badri Nath Mishra were examined as PWs 2 and 5 Rajendra Prasad, scribe of the will was examined as PW 4 and a handwriting expert. S.M. Zamil Ahmad was examined as PW 6. 6. The Sada Will in question was marked as Exhibit 1, report of the handwriting expert was marked as Exhibit 3 and a sale deed dated 18.10.1966 executed by Shib Nandan Mishra in favour of Smt. Thakurmani Devi was marked as Exhibit 5. 7. On the other hand, two daughters of Shib Nandan Mishra, namely, Malti Devi and Lakhpati Devi examined themselves as DWs 1 and 2. Two sons-in-law, Kanhalya Mishra and Krishna Kumar Mishra and Krishna Kumar Mishra of late Shib Nandan Mishra were examined as DWs 9 and 12 and his daughters son was examined as DW 11. His brother-in-law. Yadunandan Mishra was examined as DW 7. A Handwriting expert, San tosh Kumar Chalterjee, was examined as DW 15. Munshi Ram, servant, and Bhikhar Yadav, Panchu Yadav and Maheshwar Singh three disciples of late Shib Nandan Mishra were examined respectively as DWs 3, 4, 5 and 8. 8. Admitted signatures of Shib Nandan Mishra were marked on behalf of the objectors as Exhibits A series. A Handwriting expert, San tosh Kumar Chalterjee, was examined as DW 15. Munshi Ram, servant, and Bhikhar Yadav, Panchu Yadav and Maheshwar Singh three disciples of late Shib Nandan Mishra were examined respectively as DWs 3, 4, 5 and 8. 8. Admitted signatures of Shib Nandan Mishra were marked on behalf of the objectors as Exhibits A series. The sale deed dated 31.5.1976 executed by him in favour of Am-bika Prasad Vaidya was marked as Exhibit E and report of the handwriting expert, DW 15 was marked as Exhibit G. 9. Since the objectors challenged the genuineness of the alleged Will also on the ground that it was not executed by late Shib Nandan Mishra, the most important thing to be considered in this appeal is as to whether the Will in question was executed by late Shib Nandan Mishra. 10. The trial Court considered this aspect of the matter. There were two handwriting experts reports. Exhibits 3 and G before it. Both the experts were also examined as PW 6 and DW 15. The two reports were contradictory. As per report Exhibit 3, the Will (Exhibit 1) contained the genuine signatures of Shib Nandan Mishra on each page, whereas the report (Exhibit G) suggested that those signatures were not his signatures. 11. The trial Court discarded both the experts reports. No reason was assigned for non-consideration of those reports. In paragraph 25 of the judgment, the trial Court recorded its observation regarding signature of Shib Nandan Mishra on the alleged Will on comparison of his writing and signatures available on the sale deed (Exhibit 5). It is relevant to quote the said paragraph - 25, which runs as follows: "25. On comparison of the aforesaid two writings it is found that the signature and the writing of Sheonandan Mishra on the alleged will (Ext. 1) materially differ from the admitted signature and writing of Sheonandan Mishra on Ext. 5 in the following way while writing Shahi (SAHI) in the alleged will the pen pressure on Sh (SHA) is different and similarly while writing Sheonandan Sh (SHA) is distinctly clear in the admitted writing, Ext. 5 whereas it looks like (SHA) in the alleged Will Ext. 1. Similarly Nandan (NANDAN) word has been written in a quite different style in the alleged Will (Ext. 1) from that of the admitted writing in Ext. 5 whereas it looks like (SHA) in the alleged Will Ext. 1. Similarly Nandan (NANDAN) word has been written in a quite different style in the alleged Will (Ext. 1) from that of the admitted writing in Ext. 5 and similar is the case with Mishir (MISSIR) in the alleged Will. Ext. 1 and that of the admitted document Ext. 5. And the material difference in the writing is that in the alleged will there is a dash (-) after almost each and every word which is in-conspecuously absent in the writing on Ext. 5. And it goes to show that the man who has made the endorsement on Ext. 1 has been in the habit of putting a dash after writing a word whereas Sheonandan Mishra who admittedly has made endorsement on Ext. 5 was not in a habit to put a dash after each and every word to be written by him. And lastly but not of the least importance is the fact that a man is not supposed to write a particular word with its different spelling at different places. It appears from the writing on Ext. 1 that the author of the endorsement has written woshika (VOSHIKA) whereas Sheonandan Mishra has written aushika (AUSHIKA) on the admitted document (Ext. 5). The coveators have also filed some other documents admittedly written by Sheonandan Mishra which is Ext. A/15 in the suit. In this document also Sheonandan Mishra has written aushika (AUSHIKA) and not Woshika (VOSHIKA) as writtenin Ext. 1. And similarly in another document Ext. A/11 Sheonandan Mishra has again written aushika (AUSHIKA) and not woshika (VOSHIKA) as written in Ext. 1. Therefore these consis- tent admitted writtings by Sheonandan Mishra go to show that he was in habit of writing woshika (AUSHIKA) and not woshika (VOSHIKA) as written in the alleged will (Ext. 1). Therefore, in the above view of the matter I am of the definite opinion that the Will in question (Ext. 1) is not signed and written by late Sheonandan Mishra which evidently appears to have been forged by some body else. Since, there is no positive evidence on record to suggest that it was forged by the petitioners, therefore, I do not propose to take any separate legal action against them." 12. 1) is not signed and written by late Sheonandan Mishra which evidently appears to have been forged by some body else. Since, there is no positive evidence on record to suggest that it was forged by the petitioners, therefore, I do not propose to take any separate legal action against them." 12. Accordingly, it was held that the Will (Exhibit 1) was not genuine, rather it was forged at the instance of the propounders with a view to obtain illegal benefit under it and no letters of administration on Probate could be granted on the basis of such a forged Will. 13. Although there is no legal bar to the Judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any hard writing expert, the Judge should, as a matter of prudence and caution hesitate to base his finding with regard to the identity of a handwriting which forms the sheet-anchor of the case solely on the comparison made by himself. 14. In this regard, the apex Court in State Delhi Administration v. Pall Ram, AIR 1979 SC 14 held that it was not advisable that Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out as to whether two agree with each other, and the prudent course is to obtain the opinion and assistance of the expert. 15. Handwriting experts are to opine after a scientific comparison of the disputed writing with the proved or admitted writing with regard to the points of similarities and dissimilarities in the two sets of writings. The Court should then compare the handwritings with its own eyes for a proper assessment of the value of total evidence. 16. It is well settled that even where proof of handwriting which was in the nature of comparison by experts, existed, the duty is cast on the court to use its own eyes and mind to compare the admitted writing with disputed writing, to verify and reach its own conclusion. 17. 16. It is well settled that even where proof of handwriting which was in the nature of comparison by experts, existed, the duty is cast on the court to use its own eyes and mind to compare the admitted writing with disputed writing, to verify and reach its own conclusion. 17. Both the parties brought on record admitted signatures and writings of Shib Nandan Mishra, registered sale deed dated 18.10.1966 executed by Shib Nandan Mishra was marked as Exhibit 5, and the expert PW 6 compared these signatures of Shib Nandan Mishra on Exhibit 1 with his signatures and writings on Exhibit 5 and proved his report (Exhibits). 18. It is true that quality of opinion of handwriting expert depends on soundness of the reasons on which it is founded. A perusal of Exhibit 3 reveals that report (Exhibit 3) of expert (PW 6) is slip-shod, inadequate or cryptic and his opinion on similarities or dissimilarities is not available therein. The essential principle governing experts evidence is that expert is not only to provide reasons to support his opinion, but the result should be directly demonstrable. 19. In my view, opinion of PW 6 is of no use. Weight to be attached to experts opinion depends on its reasonableness and scientific quality and not on the length of his practise, as an expert. 20. So far as report, Ext. G of another expert, DW 15 is concerned, I find that he had compared the disputed signatures and writings of Shib Nandan Mishra with his admitted signatures and writings on registered sale deeds, which were marked Exhibit A series. Those signatures and writings are in Kaithi script. In his opinion, DW 15 mentioned that skill and speed of writings were dirrerent and superior and manner of making sha, da, la, ma and na and da combined were also different. Combination of ma and dirghikar in Misar was also different in both, Combination of la and dirghikar in Likha and location of sakar after kha in likha were also different. The said expert also found difference in words tarikh and location of dashes between the figures and the dates were also different. 21. Learned Additional Subordinate Judge also noticed difference in the signatures and written of Shib Nandan Mishra in Exhibits 1 and 5, specially in letter sh and words nandan and Mishra. 22. The said expert also found difference in words tarikh and location of dashes between the figures and the dates were also different. 21. Learned Additional Subordinate Judge also noticed difference in the signatures and written of Shib Nandan Mishra in Exhibits 1 and 5, specially in letter sh and words nandan and Mishra. 22. In my opinion, there was no good reason to discard the report. Exhibit G as well as evidence of DW 15 the hand writing expert about signatures and writings of Shib Nan-dan Mishra on Exhibit. 1. 23. I myself also compared the signatures and writings of late Shib Nandan Mishra with his admitted signatures and writings, both on Exhibit 5 as well as Exhibit A series and 1 found that signatures and writings of Shib Nandan Mishra in Kaithi was not hundred percent in the said script, rather it was mixture of Kaithi and Deonagari both and it appears that he was not well versed in writing u and na in Kaithi, whereas from signatures and writings of testator of Exhibit 1 it appeared to me that he was very well conversant with Kaithi script and had capacity and practice to write in Kaithi script fluently, using correct kaithi script not mixed, with Deonagari. 24. Apparently, therefore, there was difference between signatures and writings on Exhibit 1 on the one hand and on Exhibit 5 as well as Exhibit A series on the other, which were of the same person. It can not be said that signatures and writings on Exhibit 1 were of late Shib Nandan Mishra. The Will was, therefore, not genuine and was a forged document. 25. Trial Court, therefore, rightly rejected the prayer for grant of probate/letter of administration of such a forged document. 26. I therefore, find no reason to interfere with the impugned Judgment and order. There is no merit in this Appeal. It is, accordingly, dismissed, but without costs. Lower Court records may be sent down. 27. Appeal dismissed.