Ashoke Chatterjee & Ors vs Arati Moitra

Manojit Mandal, J

Challenge is to the Order No. 19 dated 08.07.2019 passed by the learned Judge, 4th Bench, City Civil Court at Calcutta in O.C. No. 17 of 2017 thereby rejecting an application for appointment of hand-writing expert.

Opposite party/applicant filed an application for grant of probate before the learned Chief Judge, City Civil Court, Calcutta which has been registered as Act 39, Case No. 20 of 2017.

The petitioners entered appearance in the probate case and are contesting the said probate proceeding. As such, the said probate proceeding has been treated as O.C. No. 17 of 2017. Testator of the alleged will, Dr. Jahnabi alias Janhabi Banerjee, was a bachelor. She died when she was an octogenarian and she had very much cordial relationship with the present petitioners who are sister's son and daughter of said Jahnabi alias Janhabi Banerjee. Subsequently, the petitioners filed written objection to the application for grant of probate. The probate proceeding came up for hearing and the purported will which is very much disputed was produced for exhibiting the same through the attesting witness, namely Sharmistha Moitra. It is alleged that when the will was produced before the learned Court below it transpired that signature appearing in the said will particularly signature with regard to page no. 3 is not at all the signature of Dr. Jahnabi alias Janhabi Banerjee. It is further alleged that since the signature is apparently appearing to be fraud and fabricated and being not signed by Dr. Jahnabi Banerjee, the petitioners filed an application for appointment of Hand-Writing Expert for comparing the signatures of Janhabi Banerjee as it is appearing in the Savings Bank Passbook (MIS) in Joint name of Gita Chatterjee and Janhabi Banerjee of Account No. 526218. The said application filed by the petitioners for appointment of Hand-Writing Expert was rejected by the order impugned. So, the petitioner filed this application.

Having considered the submissions of the learned Advocate appearing on behalf of the parties and on perusal of the materials available on record, I find that the witnesses have been examined. The alleged will was registered before the Registrar of Assurances, Kolkata. Since, the alleged will was registered before the Registrar of Assurances, Kolkata, I think that page no. 3 of the said will cannot be altered and/or changed. Moreover, the learned Trial Judge is quite competent to compare the signature appearing in page No. 03 of the alleged will with the admitted signature appearing in the other pages of the said will in view of Section 73 of the Indian Evidence Act.

In such circumstances, there is no justification to refer the matter to any expert for verification of the signature as appearing in the page no. 3 of the alleged will and thereby dragging the probate case further. Since, the learned Trial Judge has rightly exercised his discretionary power, I am of the view, the matter does not call for any interference at all. The learned Trial Judge has passed the order within his right and it cannot be stated that he has caused miscarriage of justice in rejecting the said application.

Accordingly, I am of the view that there is no scope of interference with the impugned order. Therefore, this application is devoid of merits and is, therefore, dismissed.

Considering the circumstances, there will be no order as to costs.

Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.