RAM AVATAR SONI versus MAHANTA LAXMIDHAR DAS AND ORS.

Citation: [2018] 14 S.C.R. 39 · Decided: 24-10-2018 · Supreme Court of India · Bench: R. BANUMATHI · Disposal: Leave Granted & Allowed

Judgment (excerpt)

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RAM AVATAR SONI
v.
MAHANTA LAXMIDHAR DAS AND ORS.
(Civil Appeal Nos. 10684-10685 of  2018)
OCTOBER 24, 2018
[R. BANUMATHI AND INDIRA BANERJEE, JJ.]
Will – Will in question executed by one ‘MND’ was probated
in favour of respondent no.1 – Appellant filed suit seeking revocation
of the probate so granted – Application filed by the appellant u/Or.
XXVI, r.10A CPC to send the Will in question to the hand-writing
expert for comparison with the documents, available in the court in
an earlier Probate Case of 1982, containing admitted signatures of
‘MND’ – Application allowed by District Judge – Order set aside
by the High Court – Propriety of – Held: If the scientific investigation
of the document in question facilitates the ascertaining of truth, in
the interest of justice, naturally it has to be ordered –  District Judge
was right in allowing the application to send the Will in question to
hand-writing expert –  Further, the High Court was not right in
saying that there was no specific allegation disputing the
genuineness of the signature of ‘MND’ – To challenge the
genuineness of the Will inter alia indicates challenge to the
genuineness of the signature of ‘MND’ – Impugned order set aside
– Will along with the documents containing admitted signatures of
‘MND’ be sent to the hand-writing expert for comparison – After
receipt of the report of the hand-writing expert, trial court to proceed
with the trial in accordance with law.
Allowing the appeals, the Court
HELD: 1.1 If the scientific investigation of the document
in question facilitates the ascertaining of truth, in the interest of
justice, naturally it has to be ordered. Having regard to the issue
raised in the suit, the District Judge was right in allowing the
application to send the Will in question dated 12.03.1989 to hand-
writing expert. [Para 8][43-D]
1.2 The High Court was not right in saying that, in the plaint,
the appellant has challenged only the genuineness of the Will
[2018] 14 S.C.R. 39
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                   SUPREME COURT REPORTS            [2018] 14 S.C.R.
and nowhere made allegations with regard to the genuineness of
the signature of ‘MND’. To challenge the genuineness of the
Will inter alia indicates challenge to the genuineness of the
signature of ‘MND’.  The High Court was not right in saying that
there was no specific allegation disputing the genuineness of the
signature of ‘MND’.  The impugned order is liable to be set aside.
As directed by the District Judge, the Will dated 12.03.1989 along
with the documents set out in the petition filed by the appellant
and in the order of the District Judge containing admitted
signatures of ‘MND’ be sent to the hand-writing expert for
comparison.  After receipt of the report of the hand-writing expert,
the trial court shall proceed with the trial in accordance with law.
[Paras 9, 10][43-E-H; 44-A]
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 10684-
10685 of 2018.
From the Judgment and Order dated 30.06.2016 of the High Court
of Orissa at Cuttack in CMP No. 684 of 2016 and order dated 20.09.2016
in RVWPET No. 207 of 2016.
Ranji Thomas, Sr. Adv., Aditya Sharma, K. S. Rana,
Dr. V. P. Appan, Advs. for the Appellant.
Ajit Kr. Sinha, Sr. Adv.,  Prabhash Kr. Yadav, Manoj Kr. Mishra,
Mansoor Ali, Ms. Rubina Jawed, Naresh Kumar, Advs. for the
Respondents.
The Judgment of the Court was delivered by
R. BANUMATHI, J. 1. Leave granted.
2. These appeals arise out of the judgment dated 30.06.2016 passed
by the High Court of Orissa at Cuttack in CMP No.684 of 2016 in and
by which the High Court allowed the appeal filed by the first respondent
thereby setting aside the order of the District Judge passed under Order
XXVI Rule 10A CPC thereby allowing the appellant’s prayer for sending
the signature of the Will in question to hand-writing expert for comparison
with Testator Natabar Das’s admitted signatures.
3. The appellant herein filed C.S. No.2/34 of 2008/2003 seeking
revocation of the Probate granted in favour of the first respondent i.e.
Laxmidhar Mahapatra in Probate Misc. Case No.14/5 of 2000/1997.
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In the Probate Miscellaneous Case, the Will in question executed by
Mahanta Natabar Das was the subject matter in dispute but according
to the appellant/plaintiff, the said Natabar Das never executed any Will
as Testator in favour of the first respondent-Laxmidhar Mahapatra. It is
stated in the plaint that late Mahanta Natabar Das during his life time
filed Probate Ca

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