Order XXVI Rule 10A CPC thereby allowing the appellant’s prayer for sending the signature of the Will in question to hand-writing expert for comparison with Testator Natabar Das’s admitted signatures.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 10684-10685 OF 2018
(Arising out of SLP(C) Nos.33699-33700 of 2016)
RAMA AVATAR SONI …Appellant
VERSUS
MAHANTA LAXMIDHAR DAS AND ORS. …Respondents
J U D G M E N T
R. BANUMATHI, J.
Leave granted.
2. These appeals arise out of the judgment dated 30.06.2016
passed by the High Court of Orissa at Cuttack in CMP No.684 of
2016 in and by which the High Court allowed the appeal filed by the
first respondent thereby setting aside the order of the District Judge
passed under Order XXVI Rule 10A CPC thereby allowing the
appellant’s prayer for sending the signature of the Will in question to
hand-writing expert for comparison with Testator Natabar Das’s
admitted signatures.
3. The appellant herein filed C.S. No.2/34 of 2008/2003 seeking
revocation of the Probate granted in favour of the first respondent
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i.e. 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. It is 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 along with the Will in
question and whether the signature in the Will in question is that of
said Natabar Das or not? On the other hand, the case of the first
respondent is that the Will was executed by the Testator Mahanta
Natabar Das and it was a genuine document and it was legally
probated by the competent Court.
4. Since the appellant seeks revocation of the Probate Case
No.14/5 of 2000/1997 on the ground that the Will of Natabar Das is
a fraudulent one, the crux of the issue is the genuineness of the Will
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executed by Natabar Das in favour of the first respondent. The
petition was filed by the appellant under Order XXVI Rule 10A CPC
to send the Will in question to the hand-writing expert, allegedly
executed by Natabar Das in favour of the first respondent and
probated in Probate Misc. Case No.14/5 of 2000/1997 with the
documents containing admitted signatures of Natabar Das which
are available in the court in the earlier Probate Case No.19/13 of
1982.
5. The application filed by the appellant under Order XXVI
Rule 10A earlier came to be allowed by District Judge, Puri vide
order dated 18.06.2013. The first respondent challenged the said
order dated 18.06.2013 before the High Court in WP(C) No.14977
of 2013. By order dated 14.08.2014, the High Court set aside the
order dated 18.06.2013 and directed the court below to consider the
application filed under Order XXVI Rule 10A at a later stage of the
proceedings that is after closure of the evidence from both sides.
The High Court also directed disposal of the trial proceedings in CS
No.2/34 of 2008/2003 at an earlier date. The trial commenced and
parties adduced their evidence. At that stage, the District Judge
vide order dated 15.03.2016 allowed the application filed by the
appellants under Order XXVI Rule 10A CPC directing that the Will
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dated 12.03.1989 be sent to hand-writing expert for comparison with
the admitted signatures of Natabar Das which are available in the
petition, affidavit, vakalatnama and deposition in Probate Case
No.19/13 of 1982. This order has been set aside by the High Court
by the impugned judgment.
6. To resist the appeal and the prayer of the appellant to send
the Will dated 12.03.1989 to hand-writing expert, the respondents
inter alia have raised various grounds as under:-
(i) Probate of the Will executed by Mahant Natabar Das
dated 12.03.1989 was granted in favour of the first
respondent-Laxmidhar Das vide order dated 24.04.2001
in Probate Misc. Case No.14/5 of 2000/1997 in
accordance with the procedure;
(ii) The office of Commissioner Endowments (Odisha),
Bhubaneshwar vide order dated 25.01.2002 in regard to
Misc. Case No.179/2001 decided an application dated
04.01.2001 filed by the first respondent Mahanta
Laxmidhar Das and given possession and management
of the said Institution of Kabir Chaura; and
(iii) The office of Divisional Inspector of Endowment,
Bhubaneshwar vide Report No.165 dated 04.09.2009
under Section 41 of the Orissa Hindu Religious
Endowments Act issued in favour of the first respondent
in regard to the possession and management of the said
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Math and the management and possession was allowed
in favour of the first respondent.
Reliance is also placed upon the order passed by the Commissioner
of Endowments in RC No.6/2015 dated 13.05.2016 in the revision
filed by Mahanta Gopi Das against the order dated 28.01.2015
passed by the Assistant Commissioner of Endowments,
Bhubaneshwar in OS No.7/2007.
7. In all the proceedings before the concerned authorities of
Endowments, it appears that the authorities have passed various
orders in favour of the first respondent-Laxmidhar Das mainly based
upon the order of Civil Judge (Senior Division) in Probate Case
No.14/5 of 2000/1997 dated 24.04.2001. The first respondent has
been declared to be the person in management of the Institution
only on the basis of the said order of Probate dated 24.04.2001.
8. As pointed out earlier, the appellant has filed the suit CS
No.2/34 of 2008/2003 challenging the genuineness of alleged Will
executed by Natabar Das in favour of the first respondent and
seeking revocation of the probate of the will. As submitted by the
learned senior counsel appearing for the appellant, in the said suit,
issue No.3 has been framed that “Has the defendant No.1 by
practising fraud managed to get the Will probated, which was a
fabricated and manufactured one?” Hence, the genuineness of the
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Will in question needs to be decided that is whether the signature in
the Will dated 12.03.1989 allegedly executed by Natabar Das could
be ascertained only by sending the document to hand-writing
expert. As discussed above, earlier in WP(C) No.14997 of 2013,
while setting aside the order of the District Judge dated 18.06.2013,
the High Court has observed that the application filed under Order
XXVI Rule 10A CPC can be considered at a later stage of the
proceedings that is after closure of the evidence from both sides.
After their witnesses were examined, the plaintiff/appellant again
reiterated the prayer for sending the Will in question to hand-writing
expert. If the scientific investigation of the document in question
facilitates the ascertaining of truth, in the interest of justice, naturally
it has to be ordered. Having regard to the issue raised in the suit,
the District Judge was right in allowing the application to send the
Will in question dated 12.03.1989 to hand-writing expert.
9. The High Court was not right in saying that, in the plaint, the
appellant has challenged only the genuineness of the Will and
nowhere made allegations with regard to the genuineness of the
signature of Mahanta Natabar Das. To challenge the genuineness of
the Will inter alia indicates challenge to the genuineness of the
signature of Mahanta Natabar Das. In our view, the High Court was
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not right in saying that there was no specific allegation disputing the
genuineness of the signature of Mahanta Natabar Das. In the
earlier WP(C) No.14977 of 2013 when the High Court has observed
that the prayer under Order XXVI Rule 10A CPC can be considered
at a later stage, the High Court was not right in setting aside the
order of the District Judge dated 15.03.2016 in C.S. No.2/34 of
2008/2003 and the impugned order is liable to be set aside.
10. In the result, the impugned order of the High Court in CMP
No.684 of 2016 dated 30.06.2016 is set aside and these appeals
are allowed. As directed by the District Judge in his order dated
15.03.2016, the Will dated 12.03.1989 along with the documents set
out in the petition filed by the appellant and in the order of the
District Judge containing admitted signatures of Mahant Natabar
Das be sent to the hand-writing expert for comparison. After receipt
of the report of the hand-writing expert, the trial court shall proceed
with the trial in accordance with law.
…………….……………J.
[R. BANUMATHI]
…………….……………J.
[INDIRA BANERJEE]
New Delhi;
October 24, 2018
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