NANDA KISHORE MOHAPATRA Vs. BINAYAK MISHRA

JUDGEMENT

(1.) THIS revision application has bee filed challenging the order dated 4.5.1999 passed by the Civil Judge (Senior Division), Puri, in T.S. No. 127 of 1999 rejecting the petitioners' prayer to send the signatures of the testator on the Will to a hand -writing expert for examination.

(2.) AS it appears from the statement of facts made by the petitioners, Binayak Mishra, O.P. No. 1 herein, instituted a proceeding Under Section 276 of the Indian Succession Act, 1925 (hereinafter called 'the Act') before the District Judge, Puri, for grant of Letters of Administration in respect of the properties covered by the Will so executed by his late father Gangadhar Mishra, on 22.8.1973. In the aforesaid proceeding, Satyanarayan Mishra, the present pro forma O.P. No. 2, was added as O.P. No. 1, and the present petitioners as O.P. Nos. 2 to 4. Said Binayak Mishra filed the aforesaid application for grant of Letters of Administration stating therein that Late Gangadhar Mishra, the father of the present O.P. Nos. 1 and 2, executed a Will on 22.8.1973 in presence of witnesses, which was duly registered by the District Sub -Registrar, Puri, on the same day, Gangadhar died on the next day i.e:, 23.8.1973. It is worthwhile to mention here that by virtue of the aforesaid Will, Gangadhar has bequeathed all his movable and immovable properties in favour of his two sons - Binayak and Satyanarayan, the present O.Ps. l Apart from the two sons, Gangadhar had a daughter, namely, Padmabati, who died shortly after the death of her father. The present petitioners are respectively the husband and the two sons of Padmabati. In the Court below, the present pro forma O.P. No. 2 filed his written statement stating therein that he had no knowledge about the Will of which the present O.P. No. 1 sought for grant of Letters of Administration till he received the notice of the misc. case arising out of the said proceeding. The present O.P. No. 2 further stated that he had filed a suit for partition being T.S. No. 130 of 1995 and the same was pending between the parties in the Court of the Civil Judge (Senior Division), Puri, in respect of the joint family properties. The present petitioners, who were O.P. Nos. 2 to 4 in the proceeding before the District Judge, filed their written statement stating therein that the Will was obtained by practising fraud; that the present O.P. No. 1 being an advocate had obtained a fraudulent, ante -dated and spurious deed in his support: and that the present O.Ps. have colluded with each other in order to deceive their sister -Padmabati of her legitimate share in the joint family properties. The stand of the present petitioners was that Gangadhar was seriously ill and had lost his mental balance much before his death and that the execution of the Will on 22.8.197.3, i.e., one day prior to the death of Gangadhar, cast a shadow of doubt in the minds of other parties about the genuineness of the Will. The sum and substance of their stand was that the Will had been created with the sale motive to grab the properties and that the testator had no knowledge about the alleged Will. That apart, when the pro forma O.P. No. 2 has already instituted a suit for partition wherein those petitioners were impleaded as defendants on the basis of an application made by them in that respect, the proceeding Under Section 276 of the Act has been initiated with the sole motive and intention to deprive the legal heirs of the daughter of Gangadhar from any share in the properties. In order to bring home their allegations, the present petitioners filed an application in the probate proceeding praying therein to send the signatures of the testator appearing on the Will to a hand -writing expert for examination since the signatures and the thumb impressions of the testator on the Will are forged. The further case of the present petitioners is that they also undertook to produce certain deeds containing the admitted signatures of the testator for comparison with the signature on the Will by the hand -writing expert. It is also the case of the present petitioners that while the application for sending the signatures of the testator to hand -writing expert was pending, the learned Court below wanted to proceed with the hearing of the case and to examine one witness on behalf of the present O.P. No. 1. On that day, i.e., 4.6.1999, the counsel appearing for the present petitioners filed a petition before the Court below to adjourn the hearing of the case on the ground that the petition for sending the signatures of the testator to the hand -writing expert was yet to be considered. It was also stated in the said petition that the counsel had no instruction with regard to cross -examination of the witness so produced on behalf of the present O.P. No. 1. The contention of the present petitioners is that the Court below while considering the application for adjournment took up the petitioners' application for sending the signatures to hand -writing expert and rejected both the applications on the same day on the ground that (i) there was no such pleading that the signatures and the thumb impressions appearing on the Will were not that of the testator; (ii) the admitted signatures of the testator had not been filed/ produced for being compared with the signatures appearing on the Will; and (iii) the Will being a registered one and one of the attesting witnesses having already proved the signatures of the testator, there was no necessity to send the signatures to the hand -writing expert for examination. Against the aforesaid order, the petitioners have come up with the present revision application. According to the petitioners, the learned Court below has proceeded with the matter in a great haste for the reasons best known to it.

(3.) BEFORE proceeding to deal with the merits of the case, let me first examine whether a revision is maintainable or not.