IMPORTANT POINT
Challenge to genuineness of a Will inter alia indicates challenge to the genuineness of the signature of the testator.

JUDGMENT

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 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 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 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 offi