The court emphasized the necessity of expert verification for signature comparison in probate cases, particularly when authenticity is disputed and contemporaneous documents are absent.

JUDGMENT :

SANJAY KUMAR DWIVEDI, J.

Heard Mr. Rohitashya Roy, learned counsel appearing for the petitioners and Mr. Shailesh Kumar Singh, learned counsel appearing for the O.P. No. 1.

2. Notice upon O.P. No. 2 has already been effected and the matter was earlier adjourned with a view to provide one more opportunity to the O.P. No. 2 on 25.03.2025, however, appearance on behalf of O.P. No. 2 has not been made and further it has been pointed out that the O.P. No. 2 is the proforma opposite party, as such, this petition is being heard in absence of O.P. No. 2.

3. This petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 28.06.2024, passed by the District Judge-VI, Dhanbad, in Original Suit (Probate) No. 02 of 2018, whereby learned court has been pleased to dismiss the petition dated 28.07.2022 filed by the petitioner under Section 45 of the Indian Evidence Act, 1872.

4. Mr. Rohitashya Roy, learned appearing for the petitioners submits that the O.P. No. 1 has instituted the proceeding for grant of probate with respect to the alleged Will dated 29.08.2012 executed by the deceased Haldhar Prasad Choubey. He submits that the O.P. No. 1 inter alia stated that the said Haldhar Prasad Choubey married with the opposite party no. 1 on 14.12.1991 after his first wife expired on 23.11.1989. The testator of the Will was a qualified advocate and he drafted the said Will in his own handwriting and executed the same on 29.08.2012 whereby the testator appointed the opposite party no. 1 as the executor of the Will, in view of that the O.P. No. 2 has stated that the Will is genuine and accordingly, prayed for grant of probate with respect to the said Will. He further submits that the proforma opposite party no. 2 appeared in the said probate proceeding and filed her show cause stating inter alia that the said Haldhar Prasad Choubey never executed any Will.

5. He then submits that during the pendency of the said probate case, the petitioners herein and the proforma opposite party no. 2 filed a petition under Section 45 of the Evidence Act read with Order XXVI Rule 10A of the Code of Civil Procedure for referring the documents for verifying the signature of Haldhar Prasad Choubey on the Will with an admitted document i.e. the passport of the deceased Haldhar Prasad Choubey, which has been marked as Exhibit-5. He then submits that the learned court has rejected the same and decided looking into Exhibits-2 and 5 that the signature is same. He submits that although in the rejoinder, O.P. No. 1 has stated that she has got no objection, if the said signature is sent for verification to Government Forensic Lab. He submits that in view of that the learned court has ought to allow the said petition, however, it has been rejected.

6. Learned counsel further submits that if two disputed signatures are there, the learned court is bound to send the same to the Forensic Lab and to buttress his argument, he relied in the case of Thiruvengadam Pillai Versus Navaneethammal & Anr., reported in (2008) 4 SCC 530, wherein the Hon’ble Supreme Court in paras-10, 15 and 16 has held as under:-

“10. On the contentions urged, the following questions arise for consideration:

(i) Whether the agreement of sale executed on two stamp papers purchased on different dates and more than six months prior to date of execution is not valid?

(ii) Whether the first appellate court was justified in comparing the disputed thumb impression with the admitted thumb impression and recording a finding about the authenticity of the thumb impression, without the benefit of any opinion of an expert?

(iii) Whether the High Court erred in reversing the judgment of the first appellate court in second appeal?

Re: Question (ii)

15. Section 45 of the Evidence Act, 1872 relates to “opinion of experts”. It provides inter alia that when the court has to form an opinion as to identity of handwriting or finger impressions, the opinion upon that point of persons speciall