NANNI BAI Vs. YUNUS KHA

JUDGEMENT

(1.) This petition at the instance of plaintiff under Article 227 of the Constitution of India is directed against the order dated 13/07/2012 passed in civil suit No.12A/2012. By the aforesaid impugned order, defendant's application under section 45 and 47 of the Evidence Act (hereinafter referred to as 'the Act') has been allowed. The review petition preferred by the plaintiff/petitioner under Order XLVII Rule 1 CPC has been dismissed vide order dated 06/08/2012 passed in MJC No.2/2012 by Twelfth Additional Civil Judge, ClassII, Gwalior. Relevant facts for disposal of this petition are to the effect that the plaintiff/petitioner has filed the suit on 18/02/2010 for declaration and permanent injunction based on 'will' dated 15/01/1999 allegedly executed by deceased, Kallu Master in favour of the plaintiff as regards suit house No.17/30 situated in Ward No.31, Gwalior. Written statement has been filed by the defendant and plaint allegations were denied. In paragraph 5 thereof, there is specific denial as regards factum of execution and existence of the alleged 'will' dated 15/01/1999. It is submitted that forged and fabricated 'will' has been prepared allegedly propounded by his father in favour of plaintiff with ulterior motive to achieve collateral purposes seeking relief of declaration and injunction against the defendant. It is contended that signature of his father, Kallu has been forged on the said 'will'. The description of the suit property in the alleged 'will' is also on the incorrect premise as regards dimensions and area of the suit property.

(2.) It is also contended that the 'will' was allegedly propounded on 15/01/1999 whereas the suit has been filed after 11 years, on 18/02/2010. The fact of execution of the alleged 'will' during this period has never been disclosed and not even in the mutation proceedings instituted by the defendant as those proceedings were well within the knowledge of the plaintiff and no objection was raised on the strength of the alleged 'will'.

(3.) With the aforesaid facts on record, the defendant filed an application under sections 45 and 47 of the Evidence Act inter alia contending that apart from the fact that the alleged 'will' is forged and fabricated, signature of his father, Kallu on the alleged 'will' also bears different seals of notary before whom the 'will' was registered. There are a lot of cuttings and interpolations and different inks with different pens have been used at different places. Therefore, it is prayed that expert opinion may be called as to the identity of the handwriting and signatures as well as opinion of the handwriting expert as regards factum of execution of the document and the alleged signature of late Kallu as the same are relevant for just decision of the suit.