In CR-3132-2017 (O&M)-PUNJ HC- Only after defendants led evidence by producing Will for first time, plaintiff has right to rebut it while leading rebuttal evidence, rules P&H HC while considering Trial Court order allowing application for examination of Handwriting Expert to examine signatures on Will
Justice Arvind Kumar Sangwan [10-10-2022]

Read Order: Deepak Mehta v. Navneet Mehta and Others

Monika Rahar

Chandigarh, October 26, 2022: The High Court of Punjab and Haryana has held that since the Will was set up by the defendants in the written statement, mere fact that the plaintiff stated in the plaint that the Will was an outcome of the fraud, it cannot be presumed that he had an opportunity to lead the evidence with regard to the fact, whether the same was signed by the testator or not, as the Will was never produced on record of the trial Court.

The Bench of Justice Arvind Kumar Sangwan also held that it is well settled principle of law that only after the defendants led the evidence by producing the Will for the first time, the plaintiff has a right to rebut the same, while leading the rebuttal evidence, therefore, the trial Court has rightly allowed the application for examination of Handwriting Expert to examine the signatures on the Will with the standard signatures.

Prayer in this revision petition was for setting aside the order of the Trial Court vide which the plaintiff’s application to get the signatures on disputed Will examined by a Fingerprint and Handwriting Expert, in rebuttal evidence, was allowed. 

Brief facts of the case are that the plaintiff (first respondent) filed a civil suit praying for a decree of declaration to the effect that the suit properties were joint Hindu coparcenary and ancestral properties of the parties and the sale deed executed by the sixth defendant in favour of the eleventh and twelfth defendants was illegal, null and void and not binding on right of the plaintiff and consequential relief of joint possession of the suit properties was also prayed for.

After the plaintiff and defendants concluded their respective evidence in affirmative, when the case was fixed for rebuttal evidence of the plaintiff, the aforesaid application was filed by the plaintiff for examination of Fingerprint and Handwriting Expert to examine the signatures of the testator with his standard and admitted signatures. 

In the application, it was specifically pleaded that the signatures appended to the Will were in fact appended by one Didar Singh and not by the testator. The sixth defendant contested the application on the ground that in the plaint, the plaintiff himself set up the case that Will was forged, therefore, it was for the plaintiff to lead the evidence in affirmative. 

The petitioner’s counsel submitted that once the plaintiff himself claimed in the suit that the Will was a forged and fabricated document and not signed by testator, it was for the plaintiff to lead evidence in affirmative on this point, as even onus of issue with regard to validity of the Will was on the plaintiff. It was thus argued that once the plaintiff closed the evidence, there was no occasion for him to examine the Fingerprint and Handwriting Expert to prove that Will in dispute was not signed by the testator. 

The Counsel further argued that the petitioner (sixth defendant) specifically pleaded that Will was executed by the testator in favour of the sixth defendant and the same was a genuine and registered document. It was also stated that the Will in dispute was executed by Vidya Nath Mehta of his own free will, without any pressure or undue influence and in a state of sound disposing mind. It was further argued that the plaintiff never objected to the Will in dispute, as he had knowledge about execution of the same. 

It was also submitted that till the time, original Will was not on record, mere fact that the plaintiff was leading his affirmative evidence, in the absence of original Will being produced on record, he had no occasion to get the signatures compared from a Handwriting Expert. It was next argued that it is a well settled principle of law that the onus to prove the Will is on its propounder and merely because the onus of one of the issues was on the plaintiff to prove that the Will is an outcome of the fraud, will not change the well settled principle of law. 

After hearing the parties, the Court opined that since the Will was set up by the defendants in the written statement, mere fact that the plaintiff stated in the plaint that the Will is an outcome of the fraud, it cannot be presumed that he had an opportunity to lead the evidence with regard to the fact, whether the same is signed by the testator or not, as the Will was never produced on record of the trial Court.

Even otherwise, the Court held that it is well settled principle of law that only after the defendants led the evidence by producing the Will for the first time, the plaintiff has a right to rebut the same, while leading the rebuttal evidence, therefore, the Bench opined that the trial Court rightly allowed the application for examination of Handwriting Expert to examine the signatures on the Will with the standard signatures.

Further, from a perusal of the impugned order, the Court showed that the issues were reframed and thereafter, the case was posted for evidence of the plaintiff, which was concluded. The trial Court rightly recorded a finding that though onus to prove that Will was illegal, null and void, forged and fabricated, was on the plaintiff, however, the Will was never produced on record by the defendants, therefore, the plaintiff had no opportunity to rebut the evidence of the defendants.

Accordingly, the present revision petition was dismissed.