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2006 DIGILAW 697 (CAL)

AJOY KUMAR DAS v. KALPANA DAS

2006-11-13

KALYAN JYOTI SENGUPTA, SANJIB BANERJEE

body2006
Kalyan Jyoti Sengupta, Sanjib Banerjee, JJ. ( 1 ) MR. Bhattacharya's clients have preferred the instant appeal against the judgment and order granting probate of a document said to be the last testamentary instrument executed by one Binoy Krishna Das. By this document, Mr. Roychowdhury's client, Smt. Kalpana Das, had been appointed the executirx to obtain probate of the said document. Mr. Bhattacharya's clients contested the application for grant of probate alleging that the said document was not genuine and it was further alleged that the same was not validly and lawfully executed by the said testator who had no testamentary capacity and was not in a position to execute any document. It is also stated by both the parties that after execution of the said document, one of the properties dealt with in the Will, was also gifted by executing a registered deed of gift in favour of the executrix. We are told that the legality, validity and execution of the said deed of gift has also been challenged by Mr. Bhattacharya's clients by filing a regular civil suit and the same is pending. ( 2 ) BEFORE the learned Court below, the appellants before us made an application for appointment of handwriting expert for examining the signatures put on the documents. However, the said application was rejected by the learned Trial Judge by order dated 20th of September, 1997 concluding that the signature of the testator, Binoy Krishna Das, on the deed of partition did not differ from the signature that appeared on the original Will. The learned Judge was convinced that both the signatures appearing on both the documents were by the same person and he thought it redundant to refer the matter for being examined by a handwriting expert. Hence, the application under Order 26 Rule 10 of the Code of Civil Procedure was rejected. ( 3 ) THE appellants before us, being dissatisfied with the said order dated 20th of September, 1997 of the learned Judge, filed a revisional application in this Court. His Lordship Hon'ble Justice Tarun Chatterjee, as His Lordship then was was pleased to dispose of the said revisional application by an order dated 2nd of December, 1997 which is set out hereunder: "the revisional application is rejected. There will be no order as to costs. His Lordship Hon'ble Justice Tarun Chatterjee, as His Lordship then was was pleased to dispose of the said revisional application by an order dated 2nd of December, 1997 which is set out hereunder: "the revisional application is rejected. There will be no order as to costs. However, it will be open to the petitioners to challenge the order in the event, the decree is passed against them in appeal. " ( 4 ) MR. Bhattacharya, appearing for the appellant, drawing our attention to the aforesaid order, passed by the Revisional Court, submits that his clients are entitled to raise question of genuineness of the signature as his client lost before the learned Court below on probate being granted. He submits, producing the original deed of partition, that a handwriting expert should be appointed to examine as to whether the signature of the testator was genuine or not. His further contention was that if the Court finds the signature being not genuine, obviously the application would fail and automatically the order of the learned Trial Judge would not be sustained. ( 5 ) ALTERNATIVELY, Mr. Bhattacharya urged that even assuming that the signatures were genuine even then execution and attestation of the Will has not been proved. The testimony of the so-called attesting witness, being pw-2, contains serious contradictions and in fact, he has contradicted himself in his own evidence. The impact of such contradiction is such that it dilutes all evidence adduced by other witnesses of the propounder. ( 6 ) MR. Roychowdhury, ably assisted by Mr. Probal Mukherjee for the respondent/propounder, submits that the learned Trial Judge at the interlocutory stage, had found that the signatures contained in the Will, upon comparing, tallies with the signature contained in the admitted document, namely, the deed of partition. In view of such finding, the learned trial Judge did not think it fit to appoint any handwriting expert to get an opinion. According to Mr. Roychowdhury, when the revisional application had been rejected this point could not be agitated once again either before the learned Trial Judge or before this Court. In view of such finding, the learned trial Judge did not think it fit to appoint any handwriting expert to get an opinion. According to Mr. Roychowdhury, when the revisional application had been rejected this point could not be agitated once again either before the learned Trial Judge or before this Court. On this particular aspect, we are unable to agree with him as the Revisional Court had made it clear that the petitioners will be entitled to challenge the earlier order if the probate application was allowed, meaning thereby, it was not open for the appellant to re-agitate before the learned Trial Judge on that issue but he was entitled to raise this point in the Appeal Court in the event the appeal was required to be filed. The right to urge such point was contingent upon an event which has happened. ( 7 ) NOW we can examine whether the learned Trial Judge, by his order dated 20th of September, 1997, had rightly dismissed the application for appointment of handwriting expert for getting an opinion on the signature. We need also to examine the exercise of comparing the signatures contained in the Will with those contained in the admitted document, the deed of partition. ( 8 ) MR. Bhattacharya submits that if sections 45 and 73 of the Indian evidence Act, 1872 are read together it would be clear that the Court should in normal circumstances appoint a handwriting expert for assistance in ascertaining the genuineness of any impugned signature. According to him, sections 45 and 73 of the Indian Evidence Act, 1872 do not militate against each other, rather they supplement each other. Mr. Roychowdhury, on the other hand, contends that under the provisions of section 73 of the Evidence act, it is for the Court to come to its own conclusion as to the genuineness or otherwise of a particular signature and opinion of the handwriting expert is one of the aids in arriving at such conclusion. It is not obligatory for the court to seek the opinion of a handwriting expert and it is absolutely at the decision of the Court. In support of his submission, he has relied on a Division bench decision of this Court reported in 1995 (1) CHN 491, Dr. Narayan mukherjee vs. Krishna Dey (Mukherjee ). It is not obligatory for the court to seek the opinion of a handwriting expert and it is absolutely at the decision of the Court. In support of his submission, he has relied on a Division bench decision of this Court reported in 1995 (1) CHN 491, Dr. Narayan mukherjee vs. Krishna Dey (Mukherjee ). ( 9 ) IN order to understand the legal issue we think it fit to quote sections 45 and 73 of the Indian Evidence Act, 1872 as under: "45 Opinions of experts.- When the Court has to form an opinion upon a point of foreign law, or of science or art, or as to identity of handwriting (or finger-impressions), the opinions upon that point of persons specially skilled in such foreign law, science or art, (or in questions as to identity of handwriting), (or finger-impressions) are relevant facts. Such persons are called experts. 73. Comparison of signature writing or seal with others admited or proved.- In order to ascertain whether a signature, writing, or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although the signature, writing or seal has not been produced or proved for any ohter purpose. The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person. (This section applies also, with any necessary modifications, to finger impressions ). " ( 10 ) UPON reading of both the sections, it appears to us that it is upto the court which is to take a decision and to come to a finding as to the genuineness or otherwise of a signature, to assess whether it is necessary to seek the opinion of a handwriting expert. The opinion would merely be an aid to the Court to arrive at a conclusion. Such opinion is not binding and it is optional for the Court to accept or reject it. The opinion would merely be an aid to the Court to arrive at a conclusion. Such opinion is not binding and it is optional for the Court to accept or reject it. It is not that in each and every case the Court will ask for the opinion of a handwriting expert and it is the discretion of the Court to call for the opinion of handwriting expert, considering the facts and circumstances of a case. Section 45 provides that the opinion of a handwriting expert may be a relevant factor, but not the decisive factor. To arrive at a decision, the Court has to consider many a factor. We are of the view if the Court finds upon comparing that the impugned signature is genuine, then seeking the opinion of a handwriting expert would be redundant and a futile exercise. The Division Bench judgment of this Court, as quoted above, is apposite in this case. In the said judgment, after considering a large number of decisions of various High courts, of the Supreme Court as well as of Privy Council, it was held that the assistance of a handwriting expert could be sought if the situation demanded. While laying down the principle of law, Their Lordships were careful to conclude that the Court will not call for the opinion of a handwriting expert in every case. If the Court has any doubt or any hesitation then certainly the Court can seek the assistance of a handwriting expert, and that is why section 45 of the Evidence Act has been provided which, in our view, is an enabling provision. ( 11 ) ACCORDING to us, a case has to be made out or it should appear from the facts that it was necessary that the opinion of a handwriting expert should be sought. ( 12 ) NOW, we are to examine whether in this case it was necessary to invite the opinion of a handwriting expert or not. ( 13 ) THE admitted signature contained in the admitted document, namely, the deed of partition, is produced before us. This document was executed in the year 1970. On the first page of this document, the testator, apart from signing, has also put his left thumb impression. Similarly, the Will was also registered and we find the signatures of the testator before the Registry and also find his thumb impression. This document was executed in the year 1970. On the first page of this document, the testator, apart from signing, has also put his left thumb impression. Similarly, the Will was also registered and we find the signatures of the testator before the Registry and also find his thumb impression. It is partinent to record that the appellant/ caveator had challenged the signature of the testator on the document but did not challenge the thumb impression put at the registration office. We are of the view that it is unbelievable that one person Will put signature on the document and another person will put the thumb impression before the registering authority or for that matter, the registering authority will allow two different persons to act in such manner. When there was no such challenge and no case was made out, we can safely conclude that the thumb impression put on the document at the frst page of the Will was undeniably that of the said Binoy Krishna Das. We have compared the thumb impressions appearing in both the documents and we find that except the shape and size of the impressions, all other features are identical. Even the inner lines of the two thumb impressions and the nature and design of the lines are identical and the only difference is that the size of the thumb impression put on the partition deed is slightly larger than that contained in the Will. We have also examined the signatures on the Will and compared the same with those contained in the deed of partition and found that the learned Trial Judge had correctly found that the same did not appear to be of different hands. Of course, the signatures and the strokes of the letters in the earlier document seem to be stable because it was a document executed nine years prior to the Will which was executed in the year 1979. The signatures contained in the Will appear to be shaky and that was quite natural since he had aged. We do not find any substance in the case made out as to the forgery of the signature. We thus repel the contention of Mr. Bhattacharya. ( 14 ) NOW we come to the question of execution and attestation of the Will and the testamentary capacity of the testator. We hav read the evidence with Mr. We do not find any substance in the case made out as to the forgery of the signature. We thus repel the contention of Mr. Bhattacharya. ( 14 ) NOW we come to the question of execution and attestation of the Will and the testamentary capacity of the testator. We hav read the evidence with Mr. Bhattacharya to find out whether there was any serious contradiction in the evidence of PW-2. It is true we find there are discrepancies but those are not strong enough to destroy the entire case. The evidence of PW-1, who was one of the attesting witnesses, is neutral and trustworthy. Even if we discard the evidence of PW-2, the evidence of pw-1 was good enough to prove attestation and testamentary capacity of the testator. Under the provisions of section 68 of the Evidence Act, lawful execution and attestation is required to be proved by one of the attesting witnesses and section 63 of the Indian Succession Act demands that a lawful and valid Will must be attested by at least two attesting witnesses but it does not want that two attesting witnesses must be present at the same time. PW-1 has specifically stated that he had seen the testator executing the Will. He has stated that he had seen PW-2 signing the Will. The Will was thereafter presented for registration and the testator himself went to the registration office and put his thumb impression and signed before the registrar. Apart from PWs-1 and 2, PW-3 has also come forward. She has also proved attestation and execution of the Will. Therefore, we have no hesitation to hold that the learned Trial Judge has come to a correct finding and has rightly granted probate of the Will. ( 15 ) IN the view of our aforesaid finding, we find no merit in the appeal and the same is accordingly dismissed. ( 16 ) THERE will be no order as to costs. ( 17 ) THE original Bantannama (Deed of Partition), which was produced before us, be kept with the record. Let the original Will be returned to the department concerned. Let lower Court records be sent along with the records of this case to the learned Court below forthwith. ( 18 ) INTERIM order, if there be any, stands vacated. ( 17 ) THE original Bantannama (Deed of Partition), which was produced before us, be kept with the record. Let the original Will be returned to the department concerned. Let lower Court records be sent along with the records of this case to the learned Court below forthwith. ( 18 ) INTERIM order, if there be any, stands vacated. ( 19 ) XEROX certified copy be supplied to the parties within a week from the date of such application. K. J. Sengupta and S. Banerjee, JJ. : appeal dismissed.