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2019 DIGILAW 280 (CAL)

SHYAMA RANI MONDAL v. DEPALI NASKAR

2019-02-27

BISWAJIT BASU

body2019
JUDGMENT : BISWAJIT BASU, J. 1. The petitioner objected to the grant of letters of administration of the Will of her mother Maharani Naskar, inter alia, on the grounds that the said Will is not genuine and Maharani Naskar never executed the same. 2. The father of opposite party Sambhu Naskar was the son of the testatrix and being the named executor of the said Will, on the death of the testatrix applied for grant of probate of the said Will. The said Sambhu Naskar died during the pendency of the said probate proceedings as such the opposite party being his widow applied for grant of letters of administration of the said Will. 3. The petitioner objected to the said grant as a result the proceedings has become contentious. The said suit is pending disposal before the learned Additional District Judge, 1st Track, 5th Court at Barasat, Dist. 24 Parganas(North), Original Suit No. 33 of 2008. The petitioner is contesting the said suit by filing written statement. 4. The petitioner filed an application in the suit for appointment of a handwriting expert contending, inter alia, that the testatrix during her life time executed a sale deed along with one Smt. Rasmani Kayal, the said deed has been marked as exhibit in the suit. The Left Hand Thumb Impression (hereinafter referred to as 'LTI' in short) of the testatrix appearing in the said Will may be compared by appointing a hand writing expert with her alleged LTI appearing in the said sale deed being No. 5375 of 1975. 5. The opposite party although did not file any written objection to the said application but objected to the said prayer of the petitioner on the grounds that LTI appearing in the said sale deed is not the LTI of the testatrix. The learned advocate for the opposite party at the time of hearing of the said application questioned the genuinity of the said sale deed on the grounds that LTI of Maharani Naskar has been identified in two places of the said sale deed by two different persons on the same date and the said sale deed allegedly executed and registered in the year 1975 but has been engrossed on a stamp paper issued in the year 1977. 6. 6. The learned advocate for the petitioner submits that the said sale deed being a registered document the genuinity of the LTI of Maharani Naskar, the testatrix appearing in the said sale deed shall be presumed to be genuine so long the said presumption is not rebutted. In support of his such contention he relies on the decision of the Hon'ble Apex Court in the case of PREM SINGH AND ORS. Vs. BIRBAL AND ORS. reported in, AIR 2006 SC 3608 . He further submits that the said document has already been marked as exhibit in the suit, therefore, the opposite party cannot dispute the execution of the said document now and when the genuinity of the LTI of the testatrix is in dispute the scientific investigation should be resorted to resolve the said dispute. In support of his such contention he relies on the decisions of the Hon'ble Apex Court in the case of RAMA AVATAR SONI Vs. MAHANTA LAXMIDHAR DAS AND ORS. reported in, AIR 2018 SC 5597 . Lastly the learned counsel for the petitioner relies on a decision of the learned Single Judge of this Court in the case of JASHODA CHOWDHURY Vs. TARAK CHOWDHURY AND ORS. reported in, AIR 2016 Calcutta 157 to contend that the genuinity of LTI of the testatrix appearing in the said Will cannot be ascertained without appointment of an expert. 7. The learned advocate for the opposite party refuting the submissions of the learned advocate for the petitioner submits that LTI of Maharani Naskar appearing in the said sale deed is highly disputed and in fact the genuinity of the said document itself is under challenge as the opposite party has already filed a suit for declaration that the said sale deed is void, ab initio, nullity and not binding upon the opposite party. He further submits that the said sale deed allegedly executed in the year 1975 but admittedly the said document has been engrossed on a stamp paper issued in the year 1977 which itself creates a suspicious circumstances as to the genuineness of the said document, therefore, according to him the learned Trial Judge has rightly dismissed the application of the petitioner for appointment of an hand writing expert to compare the LTI of the testatrix appearing in her Will with that of her alleged LTI appearing in the said sale deed. Heard learned advocate for the parties. Perused the materials on record. 8. It appears that the learned Trial Judge dismissed the said application of the petitioner for appointment of an expert to compare the LTI of Maharani Naskar, the testatrix appearing in the said Will with her alleged LTI appearing in the said sale deed on the ground that the said deed palpably under challenge in view of the evidence on record and under such circumstances if the prayer of the petitioner is allowed the authenticity and the genuinity of the sale deed would be prejudged. 9. In the present revisional application the opposite party filed a supplementary affidavit which has been taken on record by the order dated December 23, 2016. The opposite party in the said supplementary affidavit has disclosed that she has already filed a suit before the 1st Court of learned Civil Judge (Junior Division) at Barasat, Dist. 24 Parganas (North) for a decree of declaration that the said sale deed is void ab initio, nullity and not binding upon her. 10. There is no dispute with regard to the proposition of law laid down by the Hon'ble Apex Court in the decision reported in AIR 2006 SC 3608 (supra) that there is a presumption that registered document is validly executed and a registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the present case such presumption cannot be the only ground for allowing the said document to be used for the purpose of comparing the disputed LTI of the testatrix with her alleged LTI appearing in the said deed, since the validity and execution of the said sale deed have been highly disputed by the opposite party even by filing a suit. The entire facts and circumstance of the present case could not inspire the confidence of the learned Trial Judge to the use the said sale deed for the purpose of said comparison, which cannot said to be unjustified. 11. In the aforesaid circumstances the learned Trial Judge is perfectly justified in holding that if the prayer of the petitioner for appointment of hand writing expert is allowed the authenticity and genuinity of the said sale deed being Exhibit 'A' would be prejudged. 12. 11. In the aforesaid circumstances the learned Trial Judge is perfectly justified in holding that if the prayer of the petitioner for appointment of hand writing expert is allowed the authenticity and genuinity of the said sale deed being Exhibit 'A' would be prejudged. 12. The illustrations appended to a section form part of the statute and although forming no part of the section, are of relevance and value in the construction of the text of the section. It has been observed by the Judicial Committee in the case of MAHOMED SYDEOL ARIFFIN V. YEAH OAI GARK reported in 43 IA 256 "It is the duty of a court of law to accept, if that can be done, the illustrations given as being both of relevance and value in the construction of the text". 13. Section 45 of the Indian Evidence Act, 1872 deals with relevancy of the opinion of an expert. Illustration (C) appended to the said provision of the said Act makes it clear that the opinion of an expert on the question whether a particular document was written by a person or not would only be relevant if another document is produced for comparison of such writing and it is either proved or admitted that the said another document has been written by the said person. The said provision of the said Act and the said illustration appended thereto are reproduced below:- "Opinions of third persons, when relevant 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. Illustrations (a) ............................... (b) .............................. (c) The question is, whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A. ..................................................." In the present case LTI of the testatrix appearing in the sale deed has neither been proved to be her LTI nor it has been admitted by the opposite party that the said LTI is the LTI of the testatrix. On the contrary the genuinity of the LTI appearing in the said sale deed has been disputed by the opposite party. 14. On the contrary the genuinity of the LTI appearing in the said sale deed has been disputed by the opposite party. 14. The decision of the Hon'ble Apex Court reported in AIR 2018 SC 5597 (supra) relied on by the learned advocate for the petitioner has got no manner of application in the facts and circumstances of the present case inasmuch as in the said case documents containing admitted signature were available on record and on the said background the Hon'ble Apex Court directed appointment of hand writing expert for comparison of the signature of the testator with that of his signature appearing in the admitted documents. Paragraph. 4 of the said report being relevant is quoted below:- "4. Since the Appellant seeks revocation of the Probate Case No. 14/5 of 2000/1997 on the ground that the Will of Natabar Das is a fraudulent one, the crux of the issue is the genuineness of the Will executed by Natabar Das in favour of the of the first Respondent. The petition was filed by the Appellant Under Order XXVI Rule 10A code of Civil Procedure to send the Will in question to the hand-writing expert, allegedly executed by Natabar Das in favour of the first Respondent and probated in Probate Misc. Case No. 14/5 of 2000/1997 with the documents containing admitted signatures of Natabar Das which are available in the Court in the earlier Probate Case No. 19/13 of 1982." 15. The decision of the learned single Judge of this Court reported in AIR 2016 CAL 57 (supra) relied on by the learned advocate for the petitioner is also not applicable in the facts and circumstances of the present case for the similar reason as in the said case the admitted LTI of the person was available on record for the purpose of comparison of the LTI of the said person appearing in the disputed document. In view of the discussion made above this Court does not find any illegality and/or infirmity in the order impugned. C.O. No. 1938 of 2016 is dismissed. No order as to costs. Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.