The Court set aside an order directing a handwriting expert to compare later initials in a registered will and a power of attorney, holding the exercise futile as such signatures were undisputed by either party.
The impugned order is set aside; the trial court is directed to send the disputed signatures for comparison at the earliest.
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CMP NO.1729 OF 2016
The Petitioner in this writ petition prays for a direction to set aside the order dated 17th August, 2016 (Annexure-11) passed by learned Civil Judge (Senior Division), Udala in T.S. No. 73 of 2000, whereby he allowed an application filed by Defendant-Opposite Party to send the L.T.I. appearing at the back page of registered Will marked as Ext.A to the handwriting expert for comparison with the L.T.I. appearing in the original Power of Attorney executed by Bhuban Bihari Das, which was marked as Ext. H.
Mr. Mohanty, learned counsel for the Petitioner submits that the Plaintiffs, who are daughters of late Bhuban Bihari Das, have filed T.S. No. 73 of 2000 for partition against their brothers, which is now pending before learned Civil Judge (Senior Division), Udala. When the suit was posted for judgment, learned Civil Judge raised some doubts with regard to the signature of late Bhuban Bihari Das appearing at the different pages of registered Will (Ext.A). Accordingly, vide his order dated 21st February, 2003 under Annexure-4, he directed to send the Ext.A to the handwriting expert for examination of the signatures appearing at the different pages of registered Will executed by said Bhuban Bihari Das. The said order was challenged by the Defendant before this Court in
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W.P.(C) No. 11651 of 2003, which was dismissed on 31st July, 2008 confirming the order under Annexure-4. While the matter stood thus, the Defendant-Opposite Party exhibited the original Power of Attorney which was marked as Ext.H and filed an application for comparison of L.T.Is. of said Bhuban Bihari Das appearing in Ext.H and Ext. A. The said application was rejected vide order dated 19th March, 2010 under Annexure-5. Assailing the same, the Defendant-Opposite Party filed W.P.(C) No. 9039 of 2010 which came be disposed of as withdrawn on 5th January, 2016 granting liberty to the Defendant-Opposite Party to file appropriate application before the trial court. Accordingly, the Defendant-Opposite Party filed a petition (Annexure-7) and objection to the same was also filed by the Plaintiffs-Petitioners. Considering the same, learned Civil Judge passed the impugned order under Annexure-11 directing to send both Exts.A and H for comparison of L.T.Is. of late Bhuban Bihari Das appearing therein to the handwriting expert, which is under challenge in this CMP.
Mr. Mohanty, learned counsel for the Petitioners submitted that although there appears to be some discrepancies in the signatures appearing at different pages of Ext.A, but there is no discrepancy with regard to L.T.Is. of their father, namely, late Bhuban Bihari Das, in Exts. A & H. Thus, the comparison of L.T.Is. appearing in both Exts. A & H is not necessary for proper adjudication of the case. It will also benefit none. Learned Civil Judge misconstruing the facts has passed the
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impugned order directing to send both Exts. A and H to the handwriting expert for comparison of L.T.Is. Hence, he prays for setting aside the impugned order under Annexure-11.
Mr. Lenka, learned counsel for the sole Opposite Party, on the other hand, submits that since the signatures appearing in different pages of Ext.A are being sent to the handwriting expert for comparison, it will be in addition to the same to test the genuineness of the registered Will by sending the L.T.Is. to be compared with Ext.H. Thus, there is no infirmity in the impugned order and prays for dismissal of the CMP.
Taking into consideration the submissions made by learned counsel for the parties, this Court is of the considered opinion that when the L.T.Is. in Ext.A and Ext.H are not disputed by either of the parties to the suit, there is no need to send the same for comparison and it will be an wastage of time of the Court and will also be a futile exercise. Comparison of L.T.Is. appearing in both Exts.A & H will be beneficial to none. Thus, it is not necessary to send the L.T.Is. appearing in both Exts. A and H to the handwriting expert for comparison. In that view of the matter, the impugned order under Annexure-11 to that extent is set aside.
Since the suit is of the year, 2000, learned Civil Judge (Senior Division), Udala is directed to take steps for sending the signatures of late Bhuban Bihari Das appearing in both Exts.A and H for comparison at the earliest.
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With the aforesaid observation and direction, this CMP is disposed of.
The interim order dated 6th December, 2016 stands vacated.
Urgent certified copy of this order be granted on proper application.
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K.R. Mohapatra, J.
bks
1 issue framed by the court
Whether a comparison of later initials in a registered will and a power of attorney is necessary when both are undisputed.
Daughters of late Bhuban Bihari Das
Defendant-Opposite Party
K.R. Mohapatra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
