ALOK SHARMA,J. - (1.) Impugned in this petition is the order dated 16.12.2010 passed by Addl. Civil Judge (Jr. Division) N.01, Jaipur whereby the trial court has, on an application under Section 45 of the Evidence Act filed by the respondents-plaintiffs (hereafter 'the plaintiffs') in a suit for cancellation of the Will dated 26.8.1969 executed by one Mahadev S/o Jagannath in favour of one Narayan S/o Fatta, directed that the thumb impression of the testator Mahadev and the two attesting witnesses Birda and Nathu on the Will in issue be sent for scientific examination at the Government's Forensic Science Laboratory for comparison with their thumb impression on documents filed with the trial court.
(2.) Mr. Yash Sharma appearing for the petitioners defendants (hereafter 'the defendants') submitted that the order aforesaid dated 16.12.2010 is not in a judicious exercise of the trial court's discretion inasmuch as there was no necessity therefor at-least in respect of the FSL examination of the thumb impressions of the witnesses Birdha Jat and Nathu Devanda who had in their evidence in a different proceeding before the revenue court admitted their thumb impressions on the Will dated 26.8.1969 as attesting witnesses. Mr. Yash Sharma submitted that in any event Section 68 of the Evidence Act, 1872 as also section 63 of the Indian Succession Act, 1925 provide for the mode of proof of Wills and no other resort for such proof can be had such as by way of a report of expert opinion from Forensic Science Laboratory by resort to Section 45 of the Evidence Act, 1872. Mr Yash Sharma further submitted that in any event the impugned order ought to have recorded the satisfaction of the trial court that the pass-book and the application for grant of loan to the Hathoj Gram Seva Sahkari Samiti Ltd., Hathoj, purportedly bearing the thumb impressions of Mahadev were genuine and proved documents. Without such satisfaction, the trial court had no jurisdiction to require the purported thumb impressions of Mahadev on the pass book and his loan application to be sent to FSL for comparison with his thumb impression on the Will dated 26.8.1969. Mr. Yash Sharma relied upon the judgment of this Court in the case of Samandar Singh through LR and Another v. Murlidhar and Others {2012 WLC Raj. (UC) 631} as also on the judgment of the Apex Court in the case of Kanchansingh Dholaksingh Thakur v. State of Gujarat {1979 (4) SCC 599} in support of his contentions.
(3.) Per contra Mr. Manoj Bhardwaj appearing for the plaintiffs submitted that the impugned order dated 16.12.2010 has been passed in the fair discretion of the trial court which has been reasonably exercised on the basis of documents lawfully obtained by the plaintiffs from the Hathoj Gram Seva Sahakari Samiti, (which bore the thumb impression of deceased Mahadev) and filed with the application under Section 45 of the Evidence Act. The said documents relate back to time much prior to the initiation of the litigation and their authenticity cannot be doubted. Mr. Manoj Bhardwaj further submitted that the entire purpose of any trial is to arrive at the truth and where the opinion of an expert such as from a government FSL is to be obtained with regard to the genuineness of a document - in the instant case the thumb impression of Mahadev and the two witnesses Birda Jat and Nathu Devanda, the defendants cannot be even remotely be prejudicially affected moreso when they will have the opportunity to bring contrary evidence before the trial court and subject the plaintiffs to cross-examination.;