APARAJITA ALIAS APARAJITA LUTHRA Vs. POONAM LUTHRA

JUDGEMENT

(1.) This application is at the instance of the defendant no.s 1(a), 1(b), 3 & 4 and is directed against the Order No.67 dated February 3, 2011 passed by the learned Additional District Judge, 10th Court, Alipore in O.S. No.12 of 2008 arising out of Revocation Case No.112 of 1998. One Shaligram Luthra, since deceased, was the absolute owner of the property in suit and during his lifetime, he bequeathed or his movable and immovable property to his wife, Smt. Shanti Devi Luthra and appointed her as the sole executrix. Then Shaligram Luthra died on October 16, 1984 and after his death his wife, Smt. Shanti Devi Luthra applied for probate in respect of the properties left by her husband before the District Delegate, Alipore. Subsequently, she obtained a probate in respect of the Will left by her husband. Late Shaligram Luthra had three sons, namely, Aswini, Vinod and Deepak, now all deceased, and one daughter, namely, Smt. Sunita Paul / opposite party no.3 herein. Deepak Luthra predeceased Shaligram Luthra.

(2.) Then, in May 1993, Smt. Shanti Devi executed a deed of family settlement and appointed the petitioner no.s 3 & 4 as joint trustees in respect of her properties. Thereafter, in 1998, the petitioners got the notice of the institution of the revocation of the probate filed by the opposite party no.s 1 & 2 under Section 263 of the Indian Succession Act filed before the District Judge at Alipore and the said application for revocation had been converted into the Revocation Case No.112 of 1998. In that revocation case, the present petitioners and the opposite party no.s 3 to 6 were arrayed as defendants. Since, the matter is being contested the said revocation case had been converted into the O.S. No.12 of 2008 and it is now pending before the learned Additional District Judge, 10th Court, Alipore. The petitioners entered an appearance in the said suit and they are contesting the said suit by filing a joint written statement controverting the material allegations raised in the plaint.

(3.) The opposite party no.s 4 & 5 are also contesting the said suit by filing a joint written statement and the opposite party no.3 has also filed a separate written statement wherein he has supported the case of the opposite party no.s 1 & 2. Ultimately, on the prayer of the opposite party no.3, she was transposed from the category of defendant to the category of plaintiff. The opposite party no.3 has contended in his written statement that the said will was a forged and fabricated one. The petitioners filed an application for appointment of a handwriting expert for examining the signature of late Shaligram Luthra with five other admitted signatures appearing on different documents and that application was rejected by the impugned order. Being aggrieved, this application has been preferred. Now, the question is whether the impugned order should be sustained.