The failure of a party to cross-examine a witness on a relevant and material issue may lead to the inference that the party has practically abandoned such plea, even if the party has made averments to the contrary in the written statement.

Subrata Talukdar, J.

1. The short point in this civil revisional application numbered as C.O. 250 of 2005 is the refusal by the learned 13th Additional District Court, Alipore by its order No. 30 dated 9th September 2004 in Original Suit No. 5 of 2001 to allow the petition filed by the defendants under Order 26 Rule 10A C.P.C for scientific investigation of the L.T.I of the executrix, Mohini Bala Dasi (since deceased).

2. The original suit was filed by the plaintiff under Section 276 of the Indian Succession Act for grant of probate in respect of Will dated 16th May, 1994 executed by the late Mohini Bala Dasi. The defendants, who are the present petitioners in C.O. No. 250 of 2005 filed their objection and hence the suit became contested and was transferred to the learned 13th Additional District Court, Alipore being registered as Original Suit No. 5 of 2001.

3. In the suit the defendants filed an application under the Order 26 Rule 10 read with Section 151 of the C.P.C. In the said application the defendant contended that the LTI of the executrix, Late Mohini Bala Dasi in the alleged will is required to be proved by scientific investigation qua the L.T.I of the executrix in a gift deed executed by her during her life time.

4. The learned Trial Court, upon contested hearing, arrived at the finding that in the light of the deposition on record it was never suggested to the PWs that the L.T.I of the executrix on the alleged will was forged.

5. The deposition of the witnesses on behalf of the plaintiff have been placed for consideration before this Court.

6. P.W.1, Bankim Bihari Ojha, the scribe of the Will he has stated that he knew the late Mohini Bala Dasi during her life time and used to look after her cases. He has further stated that in the month of Baisakh 1401 B.S Mohini Bala Dasi told him she will give some properties to her nephew, Parikshit Das as she had brought him up from her childhood. Upon being advised that she would have to complete formalities for executing the Will she came to the chamber of PW-1. PW-1 prepared a draft of the Will as per her instruction and handed the same over to her. P.W.1 recognized the Will in Court and deposed that all three witnesses put their signature on the Will in presence of the executrix.

7. In respect of the L.T.I of Mohini Bala Dasi he has deposed as follows:-

“Not a fact that Mohini Bala Dasi never executed the will. At that time Mohini Bala Dasi was mentally alert and physically fit. Not a fact that will is collusive one. Not a fact that the L.T.I on the impugned will is not the L.T.I. of Mohini Bala Dasi. I knew the husband of Mohini Bala Dasi.”

8. P.W.2, who is an attesting witness to the Will has deposed as follows:-

“After writing the will the scribe read it over before Mohini Bala Dasi and us. Mohini Bala Dasi thereafter put her L.T.I. on the will taken by Bankim Ojha. Thereafter we, the witnesses put a signature on the will. This is the said will marked exhibit-1 and exhibit ½ is my signature. We saw Mohini Bala Dasi to put her L.T.I on the will and Mohini Bala Dasi also saw us sign on the will.” At the time of execution of Mohini Bala was mentally alert and physically fit.”

9. In his cross-examination P.W.2 stated as follows:-

“After execution of the will I have seen the same in Court today for the second time. The will was handed over to Mohini Bala Dasi after execution. Not a fact that on the impugned date of execution of the will Mohini Bala was ill and lying bed-ridden. Not a fact that the recital of the will was not read over to Mohini Bala. Not a fact that the Mohini Bala did not put her L.T.I before us. Not a fact that we have created this will on a paper where the L.T.I. of Mohini Bala was affixed. Not a fact that we, the witnesses did not put our signatures on the will in the presence of Mohini Bala. Not a fact that Bankim Ojha did not write the will in his presence nor he read over the recital before Mohini Bala and obtained her L.T.I. Not a fact that th