MURARI PRASAD Vs. AWADH KISHOR PRASAD

JUDGEMENT

(1.) Heard learned counsel for the petitioner as well as the learned senior counsel for the respondent No. 1.

(2.) The instant petition has been filed under Article 227 of the Constitution of India for setting aside the order dtd. 2/9/2022 passed by learned ADJ 8th Siwan in Title Suit No. 03 2013 (Probate Case No.23/2010) whereby and whereunder the learned trial court has rejected the petition of the petitioner for comparing the signature of witness with his Vakalatnama filed in some other case.

(3.) Mr. Chandrakant, learned counsel for the petitioner submits that the learned trial court committed error when it disallowed the petition filed on behalf of the petitioner. Learned counsel further submits that the petitioner and respondent no. 1 are sons of Bhola Prasad, who has been shown as a witness on the Will for which probate has been sought by the respondent no.1. This person Bhola Prasad had earlier filed Title Suit No. 164 of 2003 for declaration of title over Schedule I land and his Vakalatnama was marked exhibit in the said Title Suit No. 164 of 2023. The petitioner moved before the learned trial court for comparing the signature of Bhola Prasad on the Will as witness with the signature of Bhola Prasad on vakalatnama marked as Ext. A in Title Suit No. 164 of 2023. But the learned Trial Court did not consider the fact that there was no hurdle in allowing the petitioner's petition to get the signature of Bhola Prasad compared with the Vakalatnama since vakalatnama was a document beyond doubt as Bhola Prasad himself filed the title suit and gave power of attorney to the learned counsel. Moreover, the learned trial Court was duty bound to see that when the signature of witness on the Will is being challenged, the same needs to be compared with some authentic document and hence the trial court should have got it compared with other available documents. The document from which comparison was sought was an exhibited document of the title suit before a competent court. Thus, the said document can be considered as authentic document for purpose of comparison as Bhola Prasad authorized his learned advocate to appear on his behalf and it cannot be said that Bhola Prasad had not executed the vakalatnama. Learned counsel further submits that the learned trial court ought to have further considered the facts and circumstances of the case as the will is completely false and fabricated and the same has been filed for probate only after death of Bhola prasad and thus relevant fact has also not been taken into consideration. Learned counsel further submits that when there is no other document to compare the signature, the document available in the present case, i.e., vakalatnama in Title Suit No. 164 of 2003, should have taken into consideration for comparison of signature of Bhola Prasad as witness on Will. Thus, learned counsel submits that the impugned order is not sustainable in the eyes of law and the same be set aside.