Allowed

Enid Anna Hayden and Anr. v. Anthony C. Henriques and Ors.and Mr.S.L.Henriques

Bombay HC3 Jul 2013NMT/34/2013

Case brief

AI extract

What is this about?

In a testamentary suit, the court permitted Defendant No.2 to engage handwriting experts to photograph signatures on the original Will and an Agreement. The Prothonotary was directed to facilitate access in the presence of counsel, and timelines were set for expert reports and subsequent pleadings.

What did the court decide?

Permitted handwriting experts to access and photograph the original Will and Agreement; parties directed to follow procedural timelines for reports and affidavits.

Enid Anna Hayden and Anr. Vs Anthony C. Henriques and… — Property and Title | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY .

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ORDINARY ORIGINAL CIVIL JURISDICTION

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NOTICE OF MOTION NO.34 OF 2013

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IN TESTAMENTARY SUIT NO.48 OF 1989

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Cyril Edmond Henriques … Applicant/Defendant No.2. In the matter between : Enid Anna Hayden & Anr. ... Plaintiff. V/s. Anthony C. Henriques & Ors. ... Defendants.

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Mr A.M. Khandekar i/b M/s Tamhane & Co. for the plaintiff. Mr Onam Hingorani i/b M/s Mannadiar & Co. for Applicant and Defendant No.2.

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Mr Ameet Palkar i/b K.N. Kachare for Defendant No.5.

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CORAM : R.D.DHANUKA J. DATED : JULY 3, 2013.

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P.C.

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By this notice of motion, defendant No.2 seeks permission to

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permit the handwriting experts appointed by defendant No.2 to have access to

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the original Will kept in a sealed cover in the custody of the Prothonotary &

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Senior Master as well as the Agreement dated 18^th August 1972 to enable the handwriting experts to take photographs of the signatures appearing on the

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said documents in the office of the Prothonotary & Senior Master.

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Asmita

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Learned counsel appearing for defendant No.2 invited my attention to affidavit in support of Caveat filed on 25^th August 1989 in which Caveator has placed reliance on opinion of handwriting expert Mr H. T. Gajjar submitted on 20^th February 1986. Learned counsel submits that in the said opinion of the handwriting expert, he had opined that two disputed signatures of the testator on page 1 and 2 of the Will dated 2^nd September 1985 were not in the handwriting of the person who had written the other ten standard signatures marked on the said document. Reliance was also placed on the opinion of Mr M.S. Wagh, another handwriting expert based on the photo copy of the Will dated 2^nd September 1985. Learned counsel submits that evidence of the plaintiff is closed and defendant seeks to lead evidence.

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It is the case of the second defendant that even in the past, after obtaining permission of this Court, defendant No.2 was allowed to take photographs of the signatures of the deceased appearing on the document purported to be the last Will and testament of the deceased along with certain documents which were then part of record and proceedings of appeal in this Court. It is submitted that both the handwriting experts whose opinions were relied upon by the Cavetor, are not available for oral evidence. Defendant No.2 thus seeks to examine other handwriting expert and seeks permission of

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Asmita

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this Court to permit the handwriting expert to have access to the original Will and agreement dated 18^th August 1972. Learned counsel submits that evidence of the witness examined by the plaintiff was concluded in the month of October 2012. Defendant No.2 thereafter filed Judges Order in this Court. In view of the office objection, defendant No.2 filed notice of motion for similar reliefs and thus there is no delay on the part of second defendant in filing this notice of motion.

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Learned counsel appearing on behalf of the plaintiff on the other hand strongly opposes this application on the ground that evidence of plaintiff's witness was closed on 9^th October 2012 when defendant No.2 sought time to file affidavit of his witness. Learned counsel placed reliance on various orders passed by Metropolitan Magistrate's Court in criminal proceedings filed by defendant No.2 against the petitioner. It is submitted that even in the year 1992, defendant No.2 had sought permission of the criminal Court for similar relief by seeking permission to compare the signature of the deceased on Money Order receipts with admitted signatures. Learned Metropolitan Magistrate passed an order on 9^th July 1992 holding that such receipts could not be admitted in evidence and refused to grant such relief in favour of the second defendant. Reliance is also placed on the order passed by this Court on 3^rd September 1999 in Criminal Application No.2622

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Asmita

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of 1992. By the said order, this Court rejected Criminal Application filed by the second defendant and upheld the order passed by Metropolitan Magistrate on 9^th July 1992. Learned counsel also placed reliance on the order passed by Addl. Chief Metropolitan Magistrate on 22^nd November 2006 by which Application of the second defendant for production of original agreement was rejected. Learned counsel submits that in view of various orders passed by Chief Metropolitan Magistrate which are confirmed by this Court in Criminal Application filed by defendant No.2, there is no substance in the allegations of second defendant that signature of the deceased on the Will was forged. It is submitted that similar relief for production of agreement or for comparison of signature of the deceased on other documents has been rejected by the various Courts.

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On perusal of the orders passed by the Chief Metropolitan Magistrate as well as passed by this Court in Criminal Application filed by the second defendant, it is clear that reliefs sought by the second defendant in those proceedings for comparison of signature of the deceased was not identical. Money order was not taken on record by the Chief Metropolitan Magistrate on the ground that such documents were not proved in evidence by the witness examined by the second defendant.

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It is not in dispute that both the handwriting experts who had

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Asmita

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given their opinion in favour of the second defendant on basis of which second defendant had filed Caveat on 25^th August 1989 have expired. This position has been admitted by the plaintiff in their affidavit in reply filed in this proceeding.

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It is not in dispute that there are serious allegations made by the Caveator in affidavit in support of Caveat filed in this Court about fabrication and forgery of the documents and in my view, defendant No.2 would be thus entitled to prove such case by leading evidence of the handwriting expert. Defendant No.2 has furnished two names of handwriting expert (1) Mrs Anuja Kaushal and (2) Ms Hiral A. Mehta.

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Prothonotary and Senior Master is directed to permit the abovenamed handwriting experts and to provide them access to original Will kept in sealed cover in the custody of Prothonotary & Senior Master as well we agreement dated 18^th August 1972 in the chamber of Prothonotary & Senior Master in presence of advocates appearing for both the sides and permit the handwriting expert to take photographs of the signatures appearing on the said documents. Defendant No.2 shall bear the charges and fees of the handwriting experts.

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Handwriting expert shall submit report within two weeks from the date of providing access as directed by the Prothonotary & Senior Master.

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Asmita

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Defendant No.2 is directed to file affidavit of the first witness in lieu of examination-in-chief along with documents within two weeks from the date of submission of report by the handwriting expert with advance copy thereof to be served upon plaintiff’’s advocate. Plaintiff is directed to file statement of admission/denial in respect of such documents within two weeks thereafter.

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10 Place the matter for directions on 5^th August 2013 . Prothonotary & Senior Master as well as handwriting experts are directed to act on this order duly authenticated by the Associate of this Court. Notice of motion is accordingly disposed of in the aforesaid terms. No order as to costs.

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( R.D.DHANUKA, J.)

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Asmita

Enid Anna Hayden and Anr. v. Anthony C. Henriques and Ors.and Mr.S.L.Henriques

Case brief

What is this about?

What did the court decide?

Enid Anna Hayden and Anr. v. Anthony C. Henriques and Ors.and Mr.S.L.Henriques

Case brief

What is this about?

What did the court decide?

What the court decided

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