RAMESH CHANDRA GUPTA Vs. RAKESH KUMAR

JUDGEMENT

(1.) Chhaju Ram who was the owner of the suit property died in 1962 leaving behind three daughters including Smt. Janko Devi and five sons including Kishen Chand who died issueless on 26.9.75. The heirs of Chhaju Ram including Smt. Janko Devi allegedly executed a sale deed in favour of Satnam Singh defendant-petitioner. Janko Devi along with her children filed the present suit claiming to the owners of the suit property on the basis of a Will dated 20.6.59 allegedly executed by Chhaju Ram in favour of Kishan Chand. It is the case of the plaintiffs that Kishan Chand, in turn, had executed a Will on July 11, 1975 and willed the suit property in their favour. Satnam Singh defendant-petitioner contested the suit and claims to be the owner of the suit property on the basis of the sale deed dated 18.9.1985 executed by all the heirs of Chhaju Ram including Janko Devi. Evidence of the plaintiff was closed on December 21, 1990 and that of the defendant on 14.12.92 Planitiff-Smt. Janko Devi did not appear in the witness box and instead her husband as her attorney appeared in court in 4.10.93 at the time of leading rebutal evidence and denied the signatures of Smt. Janko Devi on the sale deed. He also denied that the sale deed was thumb marked by her. It was thereafter that the defendants moved an application under Section 45 of the Evidence Act read with Section 151 of the Code of Civil Procedure with a prayer that an expert be allowed to examine the disputed signatures and thumb impression of Smt. Janko Devi on the sale deed and compare the same with her admitted signatures and thumb impression. This application has been rejected by the trial Court as per order dated 12.2.94 on the ground that it was belated. It is this order that has been impugned in the present petition.

(2.) I have heard counsel for the parties at length and find that the trial Court was not justified in rejecting the application. There was no delay on the part of the defendants in moving the application. Smt. Janko Devi did not appear in the witness box and at the time of rebuttal evidence her husband appeared as her attorney on 4.10.93 and he denied for the first time that the sale deed did not contain the signatures and thumb impression of Janko Devi. Thereafter the application was moved on 13.10.93. Moreover, the sole question that arises between the parties is whether Janko Devi had signed and thumb marked the sale deed allegedly executed in favour of the defendant-petitioner. I am of the opinion that it would be necessary to examine an expert so that it can be determined whether the sale deed bears the signatures and thumb impression of Janko Devi or not and this would help is settling the real controversy between the parties.

(3.) Consequently, the revision is allowed, the impugned order set aside and the application filed by the defendant under Section 45 of the Evidence Act allowed. The trail Court is directed to permit the defendants to have the disputed signatures and thumb impression of Smt. Janko Devi, examined by an expert with her admitted signatures and thumb impression. The plaintiff will also be permitted to produce an expert if they so requested. There is no orders as to costs.