AJOY KUMAR DAS Vs. KALPANA DAS

JUDGEMENT

(1.) Mr. Bhattacharya's clients have preferred the instant appeal against the judgment and order granting probate of a document said to be the last testamentary instrument executed by one Binoy Krishna Das. By this document, Mr. Roychowdhury's client, Smt. Kalpana Das, had been appointed the executirx to obtain probate of the said document. Mr. Bhattacharya's clients contested the application for grant of probate alleging that the said document was not genuine and it was further alleged that the same was not validly and lawfully executed by the said testator who had no testamentary capacity and was not in a position to execute any document. It is also stated by both the parties that after execution of the said document, one of the properties dealt with in the Will, was also gifted by executing a registered deed of gift in favour of the executrix. We are told that the legality, validity and execution of the said deed of gift has also been challenged by Mr. Bhattacharya's clients by filing a regular civil suit and the same is pending.

(2.) Before the learned Court below, the appellants before us made an application for appointment of handwriting expert for examining the signatures put on the documents. However, the said application was rejected by the learned Trial Judge by order dated 20th of September, 1997 concluding that the signature of the testator, Binoy Krishna Das, on the deed of partition did not differ from the signature that appeared on the original Will. The learned Judge was convinced that both the signatures appearing on both the documents were by the same person and he thought it redundant to refer the matter for being examined by a handwriting expert. Hence, the application under Order 26 Rule 10 of the Code of Civil Procedure was rejected.

(3.) The appellants before us, being dissatisfied with the said order dated 20th of September, 1997 of the learned Judge, filed a revisional application in this Court. His Lordship Hon'ble Justice Tarun Chatterjee, as His Lordship then was was pleased to dispose of the said revisional application by an order dated 2nd of December, 1997 which is set out hereunder: