SOMA DEVI Vs. GUIN DEVI

JUDGEMENT

(1.) This revision petition under Section 115 of the Code of Civil Procedure (hereafter referred to as 'the Code') is directed against the order dated 31-8-2001 passed by the learned sub Judge, Anni whereby an application of the petitioner/defendant (hereafter referred to as 'the defendant') under Order 11 Rule 12, Order 18 Rules 17, 17A of the Code and Section 73 of the Indian Evidence Act in Civil Suit No. 32 of 2000 has been dismissed.

(2.) Brief facts leading to the presentation of this revision petition are that the respondents/plaintiffs (hereafter referred to as 'the plaintiffs') have instituted a suit for declaration that the Will dated 31-12-1997 executed by late Paras Ram in their favour is legal and valid and they are entitled to inherit the estate of the said deceased and the order of the Sub Registrar, Anni rejecting the Will is illegal and without jurisdiction and the defendant has no right to succeed to the estate of the deceased. The suit was contested by the defendant denying the execution and validity of the said Will and claimed to be entitled to have succeeded to the estate of the deceased on the basis of the Will dated 24-11-1997. The evidence of the parties in the suit was concluded on 26-7-2001 and the suit was fixed for final arguments on 16-8-2001. However, on 16-8-2001 the aforesaid application was moved by the defendant. It was averred in the application that she had earlier filed an application under Section 73 of the Evidence Act seeking comparison of the signatures of the testator of the Will in suit with his admitted signatures on a gift deed but the said application wasnot pressed as it was found that the gift deed was not signed but was thumb marked as the testator was illiterate at that time and thus the signatures could not be compared. However, the testator later learnt signing papers and his signatures are on acquittance rolls, leave applications, medical certificates, nomination form etc. in possession of the Executive Engineer, HP. PWD. Nirmand where the testator worked as a workcharge Beldar. It is further averred that plaintiff Guin Devi had reported the death of the testator to the Patwari on 21-3-1998 and at that time he had not disclosed about the execution of the alleged Will. Thus the said report and the statement of the concerned Patwari is material evidence in the case. It is also claimed that the defendant has denied the signatures of the testator on the Will by taking a specific plea but the witnesses of the plaintiffs were not cross-examined on these lines, therefore, further cross-examination of PW 2 to PW 4 is also essential. On the strength of these facts as averred in the application, it has been prayed that the aforesaid documents signed by the testator lying in possession of the Executive Engineer be called for and along with the disputed signatures sent to the Government Examiner of Questioned Documents for comparison and opinion, that the Patwari and the report aforesaid be summoned and PW 2 to PW 4 may be re-called for further cross-examination.

(3.) The plaintiffs resisted the application on the grounds that the earlier application of the defendant seeking comparison of the signatures of the testator with the admitted signatures on a gift deed stood dismissed on merits and the order dismissing the same was not assailed in any manner, therefore, such order has become final. The existence of signature of the testator in the documents as alleged in the application have been denied for want of knowledge and that such comparison is not required because of the direct evidence having been led about the execution of the two Wills set up by the parties. The other averments in the application have been denied and it has been claimed that the present application which has been filed at the stage of final arguments, is a device to prolong the disposal of the suit and pressurise the plaintiffs to give up their legitimate claim.