DIPALI HAZRA Vs. JOSTNAMONI SHAR

JUDGEMENT

(1.) The objectors of a probate proceeding are the petitioners before us in this revision application. The order impugned is one dated December 17, 1984 passed by the learned Additional District Judge, 2nd Court, Birbhum in the Letters of administration Case No 71 of 1981. The proceeding for the grant was initiated in the year 1980. In the year 1982 the present objectors-petitioners took a specific objection that the alleged signature of the testator of the ell is not the genuine signature of the testator. An issue in that regard was raised as early as in the year 1982. It is very unfortunate that though such an issue was raised, no steps were taken on the part of the objectors to have a Handwriting expert appointed by the Court for examination of the signature on the will with any admitted signature of testator until the proceeding was taken up for peremptory hearing on December 17, 1984. On that date such as application was filed and it has been rejected solely on the ground o0f delay. That is the order now being impugned before us in the present revision application.

(2.) Mr. Banerjee, appearing in support of the revision application, has contended that though there was an admitted delay in teamster, the delay could not be made a ground for refusing an opportunity to lead evidence on should not be made a ground for refusing an opportunity to lead evidence on a vital issue as to whether the alleged will bears genuine signature of the testator or not. Mr. Sengupta has seriously contested the point thus raised by Mr. Banerjee according to whom, the court acted rightly in the exercise of is judicial discretion in refusing such ablated prayer and as such, this court in the exercise of its revision power, should not interfere with such an order.

(3.) We have carefully considered the rival contentions put forward before us. It is true that we are dealing with a revision application, but in our opinion, even in such an application, this Court is required to contender as to whether in exercising a judicial discretion and in exercise of cutch a discretion in refused such a prayer, the Court had acted in regular and lawful exercise of its jurisdiction. If the delay outsights then necessary for examination of the signature on the will by an expert certainly, the order must be upheld, but in our opinion, that cannot be so. It cannot be so for the simple reason that in a probate proceeding where the grant is being challenged on the ground that the will is not a genuine document and does no bear then real signature of the testator, it is very much necessary that every opportunity should be grand to the parties to deduce evidence into that regard booth for and against. Undoubtedly there was some delay and in our opinion, the delay was more due to the negligence on the part of the lasers dealing with the case that the parties themselves. Such delay, in our opinion, cannot therefore, outweigh the necessity of gagging an opportunity to the objections even at this stage to adduce proper evidence in sup0port of their claim that the will does not bear genuine signature of the testator.