SHIVKUMAR SHARMA Vs. SUKHDEV LAL

JUDGEMENT

(1.) This writ petition under Article 227 of the Constitution of India by defendants is directed against the order dated 20/11/2013 by which plaintiffs application under Section 45 of the Evidence Act has been allowed.

(2.) A suit for declaration and permanent injunction has been filed to the effect that the suit land is of the co -ownership and plaintiffs has half share in it with further declaration that Will dated 12/2/1991 is forged and fabricated. At the stage when the parties are yet to lead evidence, plaintiffs filed an application under Section 45 of the Evidence Act inter alia contending that the suit land falling in survey nos.519, 529 and 532 was of the joint ownership and possession of their mother -Raksha Devi and husband of defendant no.1 and father of defendants no.2 to 4, namely, Somnath alias Somi Sharma. Defendants taking advantage of the absence of plaintiffs, who stayed in Punjab, got a forged and fabricated Will dated 12/2/1991 in the name of plaintiffs' mother executed in favour of defendants no.1 to 4 bequeathing her share in the property to defendants no.1 to 4. The thumb impression over the Will is forged. Raksha Devi never bequeathed half of her share in the suit property and, therefore, an application was filed for expert's opinion on the alleged thumb impression of Late Raksha Devi by a handwriting expert comparing it with the identity card issued in the name of Raksha Devi for pension payable to her after the death of her husband, who was in Government service.

(3.) Defendants no.1, 3 and 4 filed reply and opposed the application contending that mother of plaintiffs, namely, Raksha Devi out of free will and in full consciousness has executed the Will in their favour. It is denied that the thumb impression over the Will is forged one and not that of Late Raksha Devi. It is denied that father of the plaintiffs was in Government service. In special plea, it is further stated that the alleged account opened in the name of their mother is an act of fraud. She has never put signatures either on the identity card or in the account claimed to have been opened in her name. Therefore, her thumb impression on the Will cannot be compared on such documents.