SMT. ADLENE MASSEY AND 2 OTHERSversusMANISH DAS AND ANOTHER

          HIGH COURT OF JUDICATURE AT ALLAHABAD
                MATTERS UNDER ARTICLE 227 No. - 5047 of 2017

Smt. Adlene Massey And 2 Others
                                                             .....Petitioner(s)
                                      Versus

Manish Das And Another
                                                           .....Respondent(s)

Counsel for Petitioner(s)         : Manish Tandon
Counsel for Respondent(s)         : Manohar Singh, Pt. K. K. Dubey, Rahul
                                    Jain

Court No. - 5
                      HON'BLE VIKAS BUDHWAR, J.

1. Heard Sri Manish Tandon, learned counsel for the defendant-
petitioners, who are three in number and Sri Rahul Jain for the plaintiff-
respondents.

2. Since counter and rejoinder affidavits have been exchanged between
the parties, and they do not propose to file any further affidavits, with the
consent of the parties, the case is being decided at the admission stage.
3. The case of the defendant-petitioners is that the plaintiff-respondents
instituted an Original Suit no.996 of 2002 before the Court of Civil Judge
(Senior Division), Kanpur Nagar, Manis Das and others vs. Mrs. Adlene
Massey and others verified on 26.08.2002 seeking a decree of declaration
to be passed in favour of the plaintiffs declaring that the plaintiffs are the
owners and the landlord of the property in question on the basis of a Will
of the deceased Smt. Baithal Kripal Singh and a decree of permanent
injunction be passed in favour of the plaintiffs and against the
Defendants/Petitioners restraining them from selling / disposing of or
entry into any sale agreement. On being noticed, the defendant-
petitioners filed their written statement coming with a stand that the will
deed dated 29.09.2001, so executed by (Smt.) Baithal Kripal Singh in
favour of the plaintiffs, prior to her death on 11.10.2001 was a forged
document. In the Suit, the following issues were framed :-

“1-क्या वादीगण िववािदत भवन के स्वामी हैं?

2-
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क्या ्ऺितवादीगण का िववािदत भवन के एक भाग का कब्जा गैरकानूनी है और उन्हें अध्यासन
का कोई अिधकार नहीं है?

3- क्या कोई वाद का कारण उत्पन्न नहीं हुआ?

4- क्या वाद का मूल्यांकन कम िकया गया है?

5-क्या ्ऺद्त न्यायशुल्क अपयार्प्त है?

6-क्या दावा 41 एच िविश्ि अनुतोष अिधिनयम से बािधत है?

7-क्या वादी िकसी अनुतोष को पाने के अिधकारी हैं?”

4. The said suit came to be decreed on 31.08.2013 by the Court of Civil
Judge Senior Division, Court Number 2, Kanpur Nagar. Aggrieved
against the judgment and decree dated 31.08.2013, passed in O.S. No. 996
of 2002 by the Court of Additional Civil Judge (Senior Division), Court
No. 2, Kanpur Nagar, the defendant-petitioners preferred First Appeal No.
565 of 2013, Smt. Adlene Massey and 2 others vs. Manish Das, before
this Court, in which, on 30.10.2013, the appeal was admitted, notices
were issued, and both the parties were restrained from alienating the
property in question. Thereafter, the papers were sent back to the Court of
District Judge on account of pecuniary jurisdiction, and the same came to
be numbered as Civil Appeal No. 62 of 2016. During the pendency of the
appeal, an application came to be preferred on 04/05/2017 for examining
the signatures so made upon the will deed dated 29/09/2021, that is, the
hand writing expert report. The said application was objected by the
plaintiff respondents, which came to be rejected by the Court of
Additional District Judge FTC, Court No. 41, Kanpur Nagar on
20.07.2017.

5. Questioning the said order, the present petition came to be preferred.

6. This Court, on 05.09.2017, proceeded to pass the following orders:-

"Issue notice to respondents fixing 30.09.2017.
Steps to be taken within one week by both ways i.e. by ordinary post as well as
registered post A.D.
List on 30.09.2017.
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By the next date fixed, the appellate Court may proceed with the appeal but shall not
pass any final order.”

7. Counter Affidavit and Rejoinder Affidavit have been exchanged, which
are available on record.

8. Sri Manish Tandaon, learned counsel for the defendant-petitioners has
sought to argue that the order dated 20.07.2017 passed by the Court of
FTC Court No.41/ Addl. District Judge, Kanpur Nagar in Civil Appeal
no. 62 of 2016 rejecting the application for getting the report of Hand
Writing Expert with relation to the Will deed dated 29.09.2001 cannot be
sustained particularly when it is always open for the appellate court to
have allowed the said application looking into the facts and circumstances
so emanated in an individual case. Submission is that there was ample
evidence available on record so as to suggest that the will deed dated
29.09.2001 was a fictitious document and in case Hand Writing Expert
Report was obtained then the truth would have surfaced. Submission is
that appeal is in extension to the Suit and at the appellate stage, the Courts
are not powerless to ask for getting Hand Writing Expert Report. Further
contention is that in the Original Suit no. 996 of 2002 instituted by
plaintiff-respondents verified on 26.08.2002, the entire claim set up by the
plaintiff-respondent is hinges upon the Will deed dated 29.09.2001 and
the defendant petitioners in their written statement so filed by them in
para-2 have themselves taken a ground that the will deed dated
29.09.2001 was forged and fictitious as in this regard another Will deed
was claimed by defendant-petitioners. Submission is that even otherwise
in the suit itself the said question was argued on the basis of the
pleadings, but on irrelevant considerations, which are foreign to Civil
Law, the court below has rejected the said application. Contention is to
the extent also that in view of the provisions contained under Section 45
of the Indian Evidence Act, the opinion of the Expert when the Court is of
the opinion that report of Expert is needed then obviously the provisions
empowers the Court to ask for opinion, thus it is prayed that the order
impugned be set aside. Reliance has also been placed upon the judgment
of the Hon’ble Apex Court in O. Bharathan vs. K. Sudhakaran and
another, 1996(2) SCC 704, Lalit Popli vs. Canara Bank and others,
2003 AIR (SC) 1795 and a judgment of Madras High Court in Bomma
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Naicken vs. Chinna Gounder and another, 1998 AIR (Madras) 375.

9. Countering the submissions so made by learned counsel for the
defendant-petitioners, learnd counsel for the plaintiff-respondents submits
that none of the contentions so raised by the counsel for the defendant-
petitioner has legs to stand. Submission is that suit is of the year 2002
and in paragraph nos. 2 and 3 of the plaint, the entire claim set up by the
plaintiff-respondent is upon the will deed dated 29.09.2001 and even in
the prayer clause, relief ‘A’ is dependent upon the rights so claimed on
the basis of the will of the deceased Smt. B. Kripal Singh and the said will
itself was disputed by the defendant-respondents while filing written
statement in para-2 while alleging it to be a forged document and once the
issues themselves were framed, the defendant-petitioners did not insist for
framing of the issue regarding validity of the said will and the said suit
came to be decreed on 31.08.2013 and a First Appeal came to be
preferred before the High Court in the year 2013 itself being First Appeal
No.565 of 2013 by the defendant-petitioner. However, for the first time,
on 04.05.2017, now, the opinion of the Expert is being sought and rightly
the order dated 20.07.2017 came to be passed rejecting the said
application seeking the report of the Hand Writing Expert, particularly at
an appellate stage in view of the additional factor that the existence of the
will was very well within the knowledge of the defendant-petitioners.
Reliance has been placed upon the decision of the Hon’ble Apex Court in
State of Karnataka vs. K.C. Subramanya and others, (2014)13 SCC 468,
Rais Ahmad vs. Special/Additional District judge, Saharanpur, 1997
AWC 231 and a decision of this Court in Matters Under Article 227
No.4065 of 2018, Girja Shankar Tripathi vs. Kamla Shankar Shukla
and 5 others decided on 19.07.2018.

10. I have heard the submissions so made across the Bar and perused the
records carefully.

11. Facts are not in issue. It is not in dispute that based upon an
unregistered will dated 29.09.2001, an O.S. No. 966 of 2002 came to be
instituted by the plaintiff-respondents against the defendant-petitioners
verified on 26.08.2002, seeking a decree of declaration declaring that the
plaintiffs are the owners and landlord of the property in question by virtue
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of the Will deed dated 29.09.2001 and a suit for permanent injunction.
The said suit on being noticed was contested by the defendant-petitioners,
they filed their written statement on 27.01.2003 and in para-2, they came
up with the stand that the will deed dated 29.09.2001 so alleged to be
executed by (Smt.) B. Kripal Singh in favour of the plaintiffs being
unregistered is a forged document and in para-18 of the written statement,
an unregistered will deed dated 05.10.2001 was being put to motion in
order to claim devolution of rights by the defendant petitioners. Issues
were framed and post contest the suit was decreed. Interestingly, as many
as 7 issued were framed, but none of the issues pertains to the validity or
the legality of the will deed dated 09.09.2001. Thereafter, the suit stood
decreed in favour of the defendant-respondents. A regular First Appeal
was preferred before this Court which was transferred to the District
Court on account of pecuniary jurisdiction and it was numbered as Civil
Appeal No. 62 of 2016, however, on 04.05.2017, now, an application
came to be preferred for examining the signature made upon the will/
obtaining Hand-Writing Expert Report, which on objection came to be
rejected on 20.07.2017 by the court below.

12. The entire sequence of events clearly goes to show that the defendant-
petitioners were well aware of the unregistered will dated 29.09.2001
even they had staked their claim upon another unregistered will dated
05.10.2001. Thus it is a clear cut case of knowledge about the will deed
which is alleged to be fraudulent but no steps were undertaken for getting
the report of the Hand Writing Expert. The suit proceeded on the basis of
the stand taken by the respective parties and the efforts made by them and
ultimately the suit stood decreed in the year 2013. However, at the belated
stage in the year 2017 and 04.05.2017, an application is being filed for
getting the Hand Writing Expert Report.

13. The basis purpose of getting the hand writing expert report in view of
the provisions contained under Section 45 of the Indian Evidence Act is to
act with diligence and it cannot be deployed as a tool to fill up the lacunae
at the appellate stage. The position might have been different in case the
alleged will was not within the knowledge of the party and it was
suddenly pressed upon at the appellate stage, however, things are
converse in the present facts and circumstances of the case.
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14. Even otherwise, under Order 41 Rule 27 of CPC also in case analogy
is being extended on mere asking additional evidence cannot be permitted
to be adduced, particularly when there happens to be certain criteria
enumerated therein, i.e. the Court from whose decree the appeal has been
preferred, has refused to admit the evidence which ought to have been
admitted, or the parties seeking to produce additional evidence establishes
that notwithstanding the exercise of the diligence, such evidence was not
within his knowledge or could not after the exercise of the diligence be
produced by him at the time when the decree appealed against was passed
or when the appellate court was requires any documents to be produced or
any witness to be examined to enable to pronounce judgment or for any
substantial cause. Here even otherwise adopting the analogy none of the
ingredients stands applied. So far as the reliance so placed upon the
judgments in Lalit Popli (supra), O. Bharathan (supra), Bomma
Naicken (supra) are concerned, there is no quarrel to the proposition so
laid down that the Judicial Officer should not act as a Hand Writing
Expert and the comparison of disputed signatures must be supported by
the expert opinion or substantive evidence and the entries in the revenue
records must be thoroughly scrutinized and made in accordance with the
Land Revenue Manual.

15. Here in the present case, there is one additional redeeming feature,
which also needs to be noticed in the order of the learned Trial Court, the
following was observed:-

“उभय प्ष ्षारा अनुरोध िकए जाने पर न्यायालय ने ्शीमती बी कृपाल िसह के संबंिधत िवभाग
से अिभलेख मांगे थे िजसमें ्शीमती भी कृपाल िसह ने मृत्यु के पूवर् हस्ता्षर िकये है।
सम्बिन्धत िवभाग से फाजील अहमद सी डब्लू । न्यायालय में िदनांक 20-8-2013 को सभी
कागजात लेकर उपिस्थत हुये थे एवं न्यायालय में अपना बयान भी दजर् कराया था। प्ऴावली
पर दािखल िकये गये उ्व असल कागजात कागज संख्या 196क में बी कृपाल िसह के
हस्ता्षर अंिकत है। बी कृपाल िसह ्षारा जो मेिडकल आख्या डा० िदलीप िसह से ्ऺाप्त की
गयी थी वह िदनांक 15-12-95 की है िजस पर बी कृपाल िसह के हस्ता्षर है िजसे सम्बिन्धत
डा० ्षारा अटेस्ट िकया गया है।


जहां तक सी डब्लू । फाजील अहमद ्षारा दािखल िकये गये ्ऺप्ऴों का ्ऺश्न है तो न्यायालय
िवशेष्ञ के तौर पर अपनी आख्या नहीं दे सकती है। चूंिक ्ऺस्तुत वाद में वादीगण ने अपने
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                                    वसीयत को धारा 63 इिण्डयन सक्सेशन एक्ट 1925 एवं। धारा 68 भारतीय साष्य
                                    अिधिनयम 1872 के तहत पूणर् रूप से सािबत िकया है एवं न्यायालय का उ्व वसीयत के
                                    सम्बन्ध में िनष्कषर् भी आ चुका है। ऐसी िस्थित में न्यायालय िवशेष्ञ के तौर पर हस्ता्षर का
                                    िमलान कराना न्यायोिचत नहीं समझती है ्ऺितवादीगण ने अपनी वसीयत को अपने साि्षयों के
                                    ्षारा सािबत नहीं िकया है एवं उनके साि्षयों के बयान आपस में काफी िवरोधाभाषी हैं।”

                                    16. The Trial Court even otherwise on the basis of the documents
                                    available on record proceeded to consider the material decreed the suit.
                                    Even otherwise it is always open for the defendant-petitioner to canvass
                                    its argument and to substantiate its claim on the basis of the documents
                                    available on record and specially not upon the factors which amount to
                                    filling of the lacunae in this regard. Moreso, the judgment so relied upon
                                    by the counsel for the respondents in K.C. Subramanya (supra) and Rais
                                    Ahmad (supra), do apply.

                                    17. Considering the over all fact situation and after perusing the records in
                                    entirety, the Court doe not find any palpable or manifest illegality
                                    committed by the court below so as to invoke the jurisdiction under
                                    Article 227 of the Constitution of India.

                                    18. Resultantly, the interference is declined. The petition stands disposed
                                    of requiring the appellate court to expedite and to decide the appeal with
                                    most expedition without granting unnecessary adjournment and in case,
                                    adjournments are granted on exceptional circumstances, beyond the
                                    apprehension and the control that too not beyond two weeks at a stretch.

                                    19. It is always open for the parties to take all legal and factual grounds
                                    which are available under law.

                                    May 11, 2026
                                    N.S.Rathour

                                                                                                    (Vikas Budhwar,J.)




Digitally signed by :-
NIPENDRA SINGH RATHOUR
High Court of Judicature at Allahabad