Calcutta High Court
Mr. Ignit Tibrewal vs Mrs. Khushi Bhojnagarwala (Nee ... on 22 August, 2023
Author: Arindam Mukherjee
Bench: Arindam Mukherjee
OD-2
ORDER SHEET
IA No. GA 5 of 2023
In
TS 14 of 2022
IN THE HIGH COURT AT CALCUTTA
TESTAMENTARY & INTESTATE JURISDICTION
ORIGINAL SIDE
IN THE GOODS OF :
MR. SURES TIBREWAL, DECEASED
AND
MR. IGNIT TIBREWAL
VS.
MRS. KHUSHI BHOJNAGARWALA (NEE TIBREWAL)
BEFORE:
The Hon'ble JUSTICE ARINDAM MUKHERJEE
Date: 22nd August, 2023.
Mr. Shayak Chakraborty, Mr. Shahriar Hossain, Advocates for the defendant/applicant.
Mr. Nirmalya Dasgupta, Mr. Dibanath Dey, Ms. Pallavi Pain, Advocates for plaintiff.
The Court : This is an application for appointment of a Commissioner for scientific inquiry and handwriting analysis of the testamentary document being the subject matter of the instant suit made under the provisions of Rule 1 of Chapter XXII of the Original Side Rules of this Court read with the provisions of Order XXVI Rule 10A of the Code of Civil Procedure, 1908.
It is submitted by the defendant/applicant that the defendant had approached one Mr. Dinesh Sharma, a forensic expert to comment on the genuineness of the signatures of the deceased in the testamentary document dated 3rd November, 2019 and has obtained a report on 12th June, 2023 which is mistakenly stated in paragraph 9 as 12th June, 2 2019. The defendant in view of the report given by the said forensic expert wants appointment of the Commissioner to inquire into the signatures in the document after comparing the same with admitted signatures. The provision of appointing an expert by the Court is under Section 45 of the Indian Evidence Act, 1872. It is done when the Court has to form an opinion upon a point as to identity of handwriting.
In the instant case, neither the trial has commenced nor the report of the forensic expert said to have been obtained by the defendant has been proved. Unless the Court is in doubt as to the signature appearing in the testamentary document, the stage of appointing a handwriting expert does not arise. It may be so that the Court on the evidence being led either accept the objection as to the signatures of the testator in the testamentary document or discard the plea as to genuineness of the same. The appointment of a handwriting expert by the Court will, therefore, arise only after a doubt creeps in to the mind of the Court at the trial and not at this stage.
The application is premature and as such dismissed. The dismissal of this application, however, will not prevent the defendant to rely upon the forensic report said to have been obtained by the defendant or from raising the issue as to genuineness of the signature in the testamentary document at the trial stage.
Since I have not called for any affidavit, the allegations contained in the application are deemed to have not been admitted by the plaintiff.
(ARINDAM MUKHERJEE, J.) pa