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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