Research › Search › Judgment

Calcutta High Court · body

2017 DIGILAW 306 (CAL)

Abdul Hamid Gazi v. Azizar Rahaman Gazi

2017-03-20

ASHIS KUMAR CHAKRABORTY

body2017
JUDGMENT : 1. This revisional application is directed against the order dated August 06, 2015 passed by the learned Additional District & Sessions Judge, Fast Track Court-I at Basirhat, North 24-Parganas in the probate proceeding, being O.S. No. 57 of 2001. By the impugned order, the learned Court below rejected the application filed by the petitioners for appointment of a hand-writing expert to examine the genuineness of the signature of their father, the testator, in the Will in question sought to be probated by the opposite parties. 2. In their written statement petitioners asserted that the signature appearing in the Will in question is not that of their father. Even the present petitioner no. 8, the defendant no. 3, in his examination-in-chief asserted that the signature appearing in the Will in question is not that of his father. On the basis of the averments made in their written statement and the evidence adduced by the defendant no. 3, the petitioners prayed before the learned Court below for appointment of a handwriting expert to compare the signature of the testator an appearing in the alleged Will with that appearing in a registered deed dated March 26, 1971 executed by himself. The learned Court below held that the Court itself can compare the signatures of the testator appearing in the Will in question, as well as in a registered deed dated March 26, 1971 and rejected the application of the petitioners. 3. It was urged on behalf of the petitioners that it is settled law that the Court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature or handwriting and should leave the matter to the wisdom of experts. In this connection, reliance was placed on the decision of the Supreme Court in the case of The State (Delhi Administration) vs. Pali Ram, reported in (1979) 2 SCC 158 and the decision of a learned Single Judge of this Court in the case of Jayram Das vs. Sudhir Kumar Sen & Anr., reported in 2001 (3) CHN 362 . 4. 4. Having considered the facts of the case, I find that the petitioners have all along been contesting the probate proceeding on the ground that the alleged signature of the testator as appearing in the Will in question is not genuine and, as such, they prayed for appointment of a hand-wring expert to compare the signature of the testator as appearing in the Will with that appearing on a registered document admittedly exhibited by him on March 26, 1971. Apart from the ground mentioned above, the learned Court below rejected the prayer of the petitioners on the ground that the same was filed after a period of six years only to drag the case. However, having considered the certified copy of the order-sheet of the probate case, as produced by the petitioners, I find that the petitioners filed the application for appointment of the hand-wring expert for examining the aforementioned documents on April 21, 2014 after the heirs and legal representatives of the various deceased parties to the probate proceeding were brought on record. Thus, it cannot be held that the petitioners filed the said application to delay the probate proceedings. 5. In view of the settled principle of law, as held by the Supreme Court in the case of Palia Ram (supra) and the Single Bench decision of this Court in the case of Jayram Das (supra), as well as the facts discussed above, I find that the impugned order dated August 06, 2015 passed by the learned Additional District & Sessions Judge, Fast Track Court-I at Basirhat, cannot be sustained. Accordingly, the revisional application, C.O. 4536 of 2015, succeeds and the impugned order dated August 06, 2015 stands set aside. 6. The learned Court below is directed to dispose of the application filed by the petitioners for appointment of a hand-wring expert to examine the signatures of the testator as appearing in the alleged Will and the registered deed dated March 26, 1971 produced by the petitioners, within a period of three weeks from the date of communication of this order. 7. There shall, however, be no order as to costs.