Jharkhand High Court
Dilip Kumar Prasad vs Dilip Kumar Sinha on 8 February, 2019
Equivalent citations: AIRONLINE 2019 JHA 701, (2019) 201 ALLINDCAS 286 (2019) 2 JCR 633 (JHA), (2019) 2 JCR 633 (JHA)
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No.5127 of 2018
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Dilip Kumar Prasad, aged about 59 years, S/o late Rabindra Prasad, R/o Kali Babu Street, Upper Bazar, P.O., G.P.O. P.S. Kotwali, District Ranchi ......... Petitioner Versus
1. Dilip Kumar Sinha
2. Smt. Urmila Devi
3. Sri Vijay Prasad
4. Sri Ashok Prasad
5. Smt. Urmila Sinha
6. Anjani Kumar Sinha
7. Ashwani Kumar Sinha
8. Arvind Kumar Sinha
9. Purnima Sinha
10. Neelima Sinha
11. Ashok Kumar
12. Hemant Kumar Sinha
13. Rashmi Kumari @ Ganga Kumari
14. Meena Kumari .......... Respondents
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CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioner : In Person
For the Respondents :
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04/08.02.2019 This writ petition is under Article 227 of the Constitution of
India, wherein order dated 12.06.2018 (annexure-1) passed in Probate Case No.05 of 2006 as well as order dated 13.08.2018 (annxure-4) passed in Revocation Case No.89/2018/Civil Review Application No.89 of 2018 passed by the learned Additional Judicial Commissioner-VI, Ranchi has been challenged, whereby and whereunder the petition filed by the opposite party nos.5 to 10 (petitioners herein) to send the signature and thumb impression of the deceased late Lalita Devi to expert for scientific examination has been turned down, the same has been affirmed by Reviewing Court.
2. The brief facts of the case of the petitioner is that a probate case is going being Probate Case No.05 of 2016, wherein the respondents have filed a petition on 16.11.2011 for a direction to produce any authentic document containing the signature of late Lalita Devi, so 2 that the same may be sent to expert for scientific examination along with the alleged disputed signature available on the Will dated 23.06.1990 (Exhibit-8).
3. The Probate petitioner/respondents herein, has filed rejoinder and submitted that there is no any other signature of late Lalita Devi on any other authentic document and after hearing the parties, the Court below has passed an order on 21.12.2011 observing therein that if any such document is brought by the probate petitioner, an adverse inference may be taken by the Court.
It is further the case of the opposite party nos.5 to 10 that they obtained old age pension register from Circle Officer, Panki under Right To Information Act vide memo no.128 dated 10.05.2012, which shows that there is thumb impression of late Lalita Devi and probate petitioner has also filed old age pension register obtained under the Right To Information Act which shows that deceased late Lalita Devi used to receive old pension from Panki Circle by putting her signature, therefore, a petition was filed by opposite party nos.5 to 10 and prayed to pass an order for sending the aforesaid signature and thumb impression to expert for opinion in terms of petition dated 16.11.2011.
Another petition was filed on 16.01.2016 on behalf of opposite party nos.5 to 10, praying therein that earlier petition was filed on behalf of the probate petitioner disclosing the document of thumb impression obtained under Right To Information Act, subsequently, they have filed another document obtained under Right To Information Act issued by the same authority bearing signature of late Lalita Devi dated 25.06.2012 which appears to be contradictory and as such appropriate direction may be passed for personal appearance of the Circle Officer, Panki. The said application was responded by the petitioner/respondent which the trial Court has rejected vide order dated 12.06.2018, against which review has been preferred being Review Application No.89 of 2018 but the same has also been rejected vide order dated 13.08.2018, against both these orders, this writ petition has been filed invoking the jurisdiction of this Court conferred under Article 227 of the Constitution of India.
34. Learned counsel for the petitioner has submitted that since there is confusion in the document, so in the ends of justice, the document is required to be sent before handwriting expert for proper adjudication of the issue, in support of his argument, he has relied upon the judgment passed by the Hon'ble Apex Court in the case of Rama Avatar Soni Vrs. Mahanta Laxmidhar Das and Ors., reported in {2019 (1) JCR 183 (SC)}.
5. Learned counsel for the petitioner has appeared in person and argued his case at length.
6. This Court after appreciating his argument and after going across the pleading made in the writ petition as also the impugned order, has found that a probate case has been filed for probate of Will dated 23.06.1990 (Exhibit-8) wherein Exhibit-A, a document containing the signature and LTI of deceased Lalita Devi and Exhibit-9 containing the signature and LTI of deceased Lalita Devi respectively.
7. It has been found by the Court that Exhibit-9 which was issued on 25.06.2012 under Right To Information Act by Circle Officer, Panki, who has submitted his report prior to 09.11.1992, she has received old age pension by putting her signature and thereafter she has received the same by putting LTI.
8. It has been found from that the document issued by the Circle Officer, Panki wherein at column no.2, she has taken pension by putting her signature and in column no.11 she has taken pension by putting LTI.
It has further been found from perusal of Exhibit-A as per the register 2005, Latita Devi has received pension by putting LTI received by her prior to the year 2000. Official register is kept in custody of Circle Officer, Panki and since prior to year 1992, pension was received by putting LTI, thereafter has received pension by putting signature, meaning thereby, he was competent to put signature and considering the aforesaid facts, the trial Court has come to finding there documents cannot be falsified.
9. It has further been found by the Court that signature of late Lalita Devi on vakalatnama which has been marked as Exhibit-3 and 4 written statement has also been found on behalf of Lalita Devi on 08.01.1991, separately in which she put her signature.
The report given by Circle Officer, Panki under Right To Information Act was not of same period but on different periods as transpired from perusal of Exhibit-9 and Exhibit-A. In view thereof, since Lalita Devi put her signature in written statement and vakalatnama of advocate engaged on behalf of her, there is no need to send the signature and thumb impression of Lalita Devi for expert opinion.
The same having been questioned by the petitioner by filing review but the reviewing Court has also declined to interfere, taking into consideration the reasoning and having found no error apparent on the face of record.
The contention of the petitioner that in the situation of two conflicting documents brought on record issued under the Right To Information Act, it would be appropriate, just and proper to send the signature for expert examination. He has relied upon the judgment rendered by the Hon'ble Apex Court in the Case of Ram Avatar Soni (Supra).
10. This Court has gone across the factual aspect involved in the aforesaid case of Hon'ble Apex Court as referred above and has found that a revocation of probate was sought for by filing C.S. No.2/34 of 2008/2003, whereby probate was granted in favour of Laxmidhar Mahapatra in Probate Misc. Case No.14/5 of 2000/1997, in the Probate Miscellaneous Case, the Will in question executed by Mahanta Natabar Das was the subject matter in dispute but according to the appellant/plaintiff, the said Natabar Das never executed any Will as Testator in favour of the first respondent-Laxmidhar Mahapatra.
11. It has been stated in the plaint that late Mahanta Natabar Das during his life time filed Probate Case No.19/13 of 1982 for Probate of the Will executed in his favour by one Jasoda Dasi and in the said proceeding, the admitted signature of Mahanta Natabar Das are said to be available in the petition, affidavit, vakalatnama, deposition and the signature of Mahanta Natabar Das appearing in those documents are required to be sent to the hand-writing expert for comparison 5 along with the Will in question and whether the signature in the Will in question is that of said Mahanta Natabar Das or not?
12. On the other hand, the case of the first respondent was that the Will was executed by the Testator Mahanta Natabar Das which was a genuine document and it was legally probated by the competent Court.
13. This Court thinks it proper to first discuss the provision of Order 26 Rule 10-A which stipulates as follows:
"10-(A). Commission for scientific investigation.-(1) Where any question arising in a suit involves any scientific investigation which cannot, in the opinion of the Court, be conveniently conducted before the Court, the Court may, if it thinks it necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to inquired into such question and report thereon to the Court.
(2) The provisions of rule 10 of this Order shall, as far as may be, apply in relation to a Commissioner appointed under this rule as they apply in relation to a Commissioner appointed under rule 9."
14. The provisions of Order 26 Rule 10-A has been dealt with by the Hon'ble Apex Court in the case of State (Delhi Administration) Vrs. Pali Ram, reported in AIR 1979 Supreme Court 14 has held as follows:-
"It is not the province of the expert to act as Judge or Jury. The real function of the expert is to put before the Court all the materials, together with reasons which induce him to come to the conclusion, so that the Court, although not an expert, may form its own judgment by its own observation of those materials. Ordinarily, it is not proper for the Court to ask the expert to give his finding upon any of the issues, whether of law or fact, because, strictly speaking, such issues are for the Court or jury to determine. The handwriting expert's function is to opine after a scientific comparison of the disputed writing with the proved or admitted writing with regard to the points of similarity and dissimilarity in the two sets of writings. The Court should then compare the handwriting with its own eyes for a proper assessment of the value of the total evidence."
In the aforesaid judgment, it has further been laid down that "the matter can be viewed from another angle, also. Although there is no legal bar to the Judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any handwriting expert, the Judge should, as a matter of prudence and caution, hesitate to base his finding with regard to the identity of a handwriting which forms the sheet-anchor of the prosecution case against a person accused of an offence, solely on comparison made by himself. It is therefore, not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other, and the prudent course is to obtain the opinion and assistance of an expert."
615. In the light of this proposition of law, factual aspect involved in this case needs to be examined.
The probate case was filed for issuance of letter of administration for Will executed by Lalita Devi on 23.06.1990 who died on 23.05.2002. The objector, the petitioner has filed an application on 16.11.2012 that the said Lalita Devi eloped from her in-laws house in the year 1943 and has not been seen to be alive. It has been alleged that the signature of Lalita Devi at Will, written statement on partition suit and vakalatnama are fraudulent and forged, therefore, the petitioner may be directed to file any other admitted document, so that it may be corroborated by the expert but the objector has not named any such documents. The petitioner has taken the plea that no such document is in his possession.
16. The trial Court after hearing the parties on petition dated 16.11.2012 has rejected the same with an observation that if any such document is placed by the petitioner, adverse inference may be taken by this Court.
17. The petitioner/objector has not assailed the order dated 21.12.2011 and subsequent thereto the petition was filed on 16.10.2018 for sending the Will before the expert for examination of the script of signature of late Lalita Devi.
18. The occasion arisen because the petitioner has obtained old age pension register from Panki, Circle Officer by making an application under Right To Information Act, 2005 and from his, it has been demonstrated that there is thumb impression of Lalita Devi and there is no thumb impression of Lalita Kuwar, the said old age pension register has also been filed, hence, it was prayed to pass an order for sending the aforesaid disputed signature and thumb impression to expert for his opinion.
19. Rejoinder has been filed objecting to such petition by taking ground that written statement and vakalatnama are available on record filed by Lalita Devi as Partition Suit No.29/1990 which is an authentic document of Lalita Devi, she use to receive old age pension by putting LTI as well as by making her signature also, hence, the said application may be rejected.
720. The trial Court after going across the signature and LTI of deceased Lalita Devi which has been marked as Exhibit-A and Exhibit- 9 and from which it has been found that the documents issued under Right To Information Act on 25.06.2012 by Circle Officer, Panki was prior to 09.11.1992 and at that time she used to receive old age pension by putting his signature and thereafter she has received old age pension by putting LTI, it has transpired from the said documents that in column no.2, she has taken pension by putting her signature and in column no.11 she has taken pension by putting LTI and thereafter she has taken pension by putting signature.
It has further been found from perusal of Exhibit-A that as per the register appears 2005, at that time Lalita Devi had received pension by putting LTI received by her prior to the year 2000, since, the official register kept in safe custody of Circle Officer, Panki, therefore, the same has been lead to be true.
The Court has also came to finding that official document i.e. register showing the receipt of old age pension cannot be disputed, therefore, the same has been taken to be true and in view thereof declared to send the documents before the expert.
21. It is not in dispute that as per the provision under Order 26 Rule 10-A, a document, if Court thinks it proper, may be sent before the expert but here in the instant case, admittedly a partition suit was filed on 1990 by Lalita Devi containing therein the authentic documents, vakalatnama and written statement filed by Lalita Devi and hence, the Court has came to conclusion that the conclusive document is there to prove the same. The trial Court has also declined to send the document for its examination before the expert by taking into consideration register containing the signature of Lalita Devi who has received old age pension.
22. The petitioner's concern is that there is signature as also LTI, hence, the same is suspicious and therefore, the signature may be sent to the expert that can be accepted if there would not have any document but here the document containing the signature of Lalita Devi is there in the Partition Suit No.29 of 1990. The Partition Suit No.29 of 1990 in which late Lalita Devi has appeared filed her written 8 statement along with vakalatnama which has not been objected by the petitioner, since nothing has been stated in the writ petition, although a reference of Partition Suit No.29 of 1990 along with the signature upon the written statement has been referred in the impugned order, thereby the signatures which are already on record of Partition Suit No.29 of 1990 having not been disputed by the petitioner while still the suit is lying pending before the competent Court of civil jurisdiction.
23. The Plea taken by the petitioner by raising suspicion over the signature of late Lalita Devi in the Will is not based upon on substantive reason as because when the signatures of late Lalita Devi are already available on record in Partition Suit No.29 of 1990 in which the petitioner has put his appearance without any objection on that regard, the signature contained in the said Will now cannot be disputed by the petitioner rather the Court being an expert can always compare the signature available on Will with that of written statement, vakalatnama available in Partition Suit No.29 of 1990, has rightly rejected the aforesaid application.
24. The petitioner has relied upon the judgment rendered in the case of Ram Avatar Soni (supra) passed by the Hon'ble Apex Court but it is settled that a judgment has not got universal applicability rather it depends upon the fact and circumstance available in each and every case, therefore, this Court has thought it proper to examine the factual aspect available in the case of Ram Avatar Soni (supra).
25. It is evident from the judgment rather in the aforesaid cases of Hon'ble Apex Court that revocation probate was sought for by filling C.S. No.2/34 of 2008/2003, whereby probate granted in favour of Laxmidhar Mahapatra in Prabate Misc. Case No.14/5 of 2000/1997, the Will in question executed by Mahanta Natabar Das, the same was the subject matter of the dispute, since according to the appellant/plaintiff the said Natabar Das has never executed any Will as Testator in favour of the first respondent-Laxmidhar Mahapatra. It has been stated in the plaint that Mahanta Natabar Das during his lifetime file Probate Case No.19/13 of 1982 for Probate of the Will executed in his favour by one Jasoda Dasi and in the said proceeding, 9 the admitted signature of Mahanta Natabar Das is said to be available in the petition, affidavit, vakalatnama, deposition and the signature of Mahanta Natabar Das appearing in those documents are required to be sent to the handwriting expert for comparison along with the Will in question in order to come to correct finding. On the other hand, the case of the first respondent is that the Will was executed by the Testator Mahanta Natabar Das which is a genuine document and was legally probated by the competent Court. On that situation the judgment has been delivered by the Hon'ble Apex Court for sending the documents for its expert examination, as has been stated hereinabove.
26. The judgment is to be seen on the basis of the fact and circumstance of each and every case, therefore, in order to look into the fact as to whether the judgment relied upon by the learned counsel for the petitioner in the case of Ram Avatar Soni (supra) is applicable with the facts and circumstances of the instant case.
27. Admittedly herein, a title suit is going on since the year 1990, in which, Lalita Devi, being defendant, had filed written statement along with vakalatnama by serving copy of the same upon the counsel appearing for the petitioner but nothing has been brought on record by making any averment regarding disputing the aforesaid signature available in written statement or the vakalatnama while the petitioner is contesting the said partition suit, and as such, the factual aspect leading to this case is quite different to that of Ram Avatar Soni (supra), since, in this case there is other document to satisfy regarding the doubt, if any, with respect to the signature of the testator over the Will.
28. Hence, the judgment rendered by the Hon'ble Apex Court in the case of Ram Avatar Soni (supra), is not applicable in the facts and circumstances of the instant case.
29. It is evident that the documents containing the signature of late Lalita Devi since is available in Partition Suit No.29 of 1990, therefore, the signature contained in the written statement and the vakalatnama of the aforesaid partition suit are available, therefore, there is basis to come out from the suspicion over the said document, since the Court 10 has got other document also to assess the signature and hand script by making its comparison with the signature containing in the written statement and the vakalatnama filed in Partition Suit No.29 of 1990, by calling for its certified copy.
30. This writ petition has been filed under the provision of Article 227 of the Constitution of India under its revisable power and it is settled position of law that the High Court sitting under Article 227 of the Constitution of India has got limited jurisdiction as has been held by the Hon'ble Supreme Court rendered in the case of Shalini Shyam Shetty Vrs. Rajendra Shankar Patii, reported in (2010) 8 SCC 329 has been pleased to laid down therein regarding the scope of Article 227 which relates to the supervisory powers of the High Courts and by taking aid of the judgment rendered by the Hon'ble Full Bench of Calcutta High Court in the case of Dalmia Jain Airways Ltd. Vrs. Sukumar Mukherjee, reported in AIR 1951 Calcutta 193, wherein it has been laid down that Article 227 of the Constitution of India does not vest the High Court with limit less power which may be exercised at the court's discretion to remove the hardship of particular decisions. The power of superintendence confers power of a known and well recognized character and should be exercised on those judicial principles which give it its character. In general words, the High Court's power of superintendence is a power to keep the subordinate courts within the bounds of the authority, to see that they do what their duty requires and that they do it in a legal manner.
i. The power of superintendence is not to be exercised unless there has been;
(a) An unwarranted assumption of jurisdiction, not vested in a court or tribunal; or
(b) gross abuse of jurisdiction; or
(c) an unjustifiable refusal to exercise jurisdiction vested in courts or tribunals.
ii. Further, in the aforesaid judgment the Hon'ble Apex Court has taken aid of a judgment rendered in the case of Mani Nariman Daruwala Vrs. Phiroz N. Bhatena, reported in (1991) 3 SCC 141 wherein it has been laid down that in exercise of jurisdiction under 11 Article 227, the High Court can set aside or reverse finding of an inferior court or tribunal only in a case where there is no evidence or where no reasonable person could possibly have come to the conclusion which the court or tribunal has come to.
iii. The Hon'ble Apex Court has made it clear that except to this limited extent the High court has no jurisdiction to interfere with the finding of facts.
iv. Further, the judgment rendered by the Hon'ble Apex Court in the case of Laxmikant Revchand Bhojwani Vrs. Pratapsing Mohansingh Pardeshi, reported in (1995) 6 SCC 576 it has been laid down that the High Court under Article 227 cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. Its exercise must be restricted to grave dereliction of duty and flagrant abuse of fundamental principles of law and justice.
v. It has been laid down at paragraph 47 of the aforesaid judgment that the jurisdiction under Article 227 is not original nor is it appellable. This jurisdiction of superintendence under Article 227 is for both administrative and judicial superintendence. Therefore, the powers conferred under Article 226 and 227 are separate and distinct and operate in different fields. Another distinction between these two jurisdictions is that under Article 226 the High Court normal annuls or quashes an order or proceedings but in exercise of its jurisdiction under Article 227, the High Court, apart from annulling the proceeding, can also substitute the impugned order by the order which the inferior tribunal should have made.
vi. It has further been laid down regarding the powers to be exercised by the High Court under Article 227 of the Constitution of India. The High Court, in exercise of its jurisdiction of superintendence, can interfere in order only to keep the tribunals and courts subordinate to it within the bounds of its authority, in order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested with them and by not declining to exercise the jurisdiction which is vested in them. Apart from that, High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts 12 subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
vii. In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.
31. This Court after going across under Article 227 of the Constitution of India, looking into the factual circumstances involved in this case is of the view that the trial Court while rejecting the application filed under Order 26 Rule 10-A has committed no error hence suffers from no infirmity.
32. In view thereof, this writ petition fails and accordingly, dismissed.
(Sujit Narayan Prasad, J) Rohit/-