Calcutta High Court (Appellete Side)
Sri Upananda Biswas vs Sri Nanda Dulal Biswas & Ors on 11 September, 2018
1 Sl. September
62. 11, 2018 High Court at Calcutta Revisional Jurisdiction C.O. 3085 of 2018 Sri Upananda Biswas Versus Sri Nanda Dulal Biswas & ors.
Mr. Gopal Chandra Ghosh, ...for the petitioner.
Mr. Sujosh Ghosh Dostidar, Ms. Sankari Roy, ...for the opposite parties.
Leave is sought on behalf of the petitioner to file the first page of the certified copy of the impugned order dated December 5, 2017. Such leave is granted. The said first page, filed in court today, is taken on record.
The propounder of a will has challenged an order ,whereby the probate court had apparently mixed up and confused the written objection of the present petitioner with an application. Initially, the opposite parties contested the probate proceedings and filed an application for appointment of a hand writing expert to compare the signature of the testator on the will with some other admitted document.
The said application was allowed by the order dated September 28, 2016. However, in the same breath, the probate court observed that the document produced by the opposite parties did not contain an admitted signature and that the signature on the said document was admitted only by the opposite parties themselves. As such, the said order remained on paper without having any teeth, 2 in view of the handwriting expert being appointed without any document with which the expert would compare the signature on the will. Subsequently, the matter went on for a while. As late as on December 5, 2017, adding to the woes of the parties, another document was brought forth by the opposite parties, the signature on which was again denied by the present petitioner. The probate court apparently got irked with the objection of the petitioner and treated the said objection to be an application, dismissing the same with costs of Rs. 5,000/-.
Such order dated December 5, 2017, on the face of it, cannot stand a moment's scrutiny since the application was filed by the opposite parties and not by the petitioner and the petitioner had every right to say that he did not admit the signature on the document brought by the opposite parties. The matter went topsy-turvy in the mind of the Judge and the objection was treated as an application. When the petitioner, subsequently, took out an application for recall/review of such order dated December 5, 2017, the same was again rejected by the probate court on technical ground.
It is well-settled that if there be an examination by a handwriting expert, the signature on the document with which the disputed signature was to be compared, had to be admitted by both sides.
The very nature of such an order prevents any examination with the disputed signature, since, obviously, the comparison of one disputed signature with another would lead the parties nowhere. As such, it is now for the opposite parties to produce a third document containing admitted signature of the testator, since the onus is on the opposite parties to do so as they sought for an examination of the signature of the testator on the will. In view of the previous order appointing handwriting expert being not challenged, the same has attained finality, without meaning till the admitted signature of the testator is produced by the opposite parties.
Be that as it may, the impugned orders cannot be sustained for the 3 reasons as discussed above.
Accordingly, the revisional application bearing C.O. 3085 of 2018 is allowed on contest, thereby setting aside the impugned orders and directing the opposite parties to produce any relevant document containing the admitted signature of the testator for the purpose of giving fruition to the order dated September 28, 2016, whereby an expert was appointed to compare the signature of the testator on the will with an admitted document.
There will be no order as to costs.
( Sabyasachi Bhattacharyya, J. ) 4 dns