MP/1238/2019 of RAKESH PANDEY Vs SUBHASH KUMAR CHOUBEY on 10 December 2024

1. SUBHASH KUMAR CHOUBEY S/O SHRI PITAMBERCHOUBEY, AGED ABOUT 47 YEARS, 1/15 SADARBAZAR SAGAR TEHSIL AND DISTT. SAGAR M.P.(MADHYA PRADESH)2.KU BHARTI CHOUBEY D/O PITAMBAR CHOUBEY,AGED ABOUT 24 YEARS, RESIDENT OF DANATEHSIL AND DISTT SAGAR MP (MADHYAPRADESH)3.KAMLESH CHOUBEY S/O DEENDAYAL CHOUBEY,AGED ABOUT 52 YEARS, RESIDENT OF WARD NO7 REHLI TEHSIL REHLI DISTT SAGAR MP(MADHYA PRADESH)4.SMT TARADEVI W/O KP SHUKLA, AGED ABOUT 45YEARS, RESIDENT OF C/O KP SHUKLA MPEBCHHATARPUR DISTT CHHATARPUR MP(MADHYA PRADESH)

(NONE FOR THE RESPONDENTS)

.....RESPONDENTS

This petition coming on for admission this day, the court passed the None for the petitioner. There is no intimation of adjustment as is evidentfrom the cause list.

Nobody is appearing for the respondents also to support the applicationi.e. I.A. No.6136/2023, an application for change of counsel.

As nobody is appearing for the respondents, I.A. No.6136/2023 isdismissed for want of prosecution.

This miscellaneous petition is filed by the petitioner plaintiff beingaggrieved of order dated 19.02.2019 passed by learned 3rd Additional DistrictJudge, Sagar in RCS No.27A/2016, rejecting an application under Section 45 ofthe Evidence Act challenging the opinion of the handwriting expert, as containedin Annexure P-6.

Earlier petitioner had taken objection on the report by filing an applicationunder Section 151 of CPC, when that application was rejected vide order dated29.06.2017, then petitioner had approached this High Court by filing M.P.No.815/2018. In this Miscellaneous Petition proceedings of the RCSNo.27A/2016 were stayed by a Coordinate Bench of this Court, as contained inAnnexure P-9, and, thereafter that Miscellaneous Petition was withdrawn.

Vide Annexure P-10, petitioner had filed an application under Section 45of the Evidence Act, mentioning therein that the dispute is in regard to Willdated 16.01.2011 executed by Smt. Shailesh Choubey. Defendants are turningthat Will to be forged Will, saying that Smt. Shailesh Choubey had neverexecuted that Will. Defendants had sought verification of signatures of Smt.Shailesh Choubey where an expert has produced his report on 24.01.2017.Since, the expert had not examined the admitted signatures of Smt. ShaileshChoubey, therefore, objection was raised and a prayer is made that signatureson the Will be examined qua the admitted signatures on the income tax return available in the Office of Income Tax Department.

I have perused the provisions contained in Section 45 of the EvidenceAct so also the impugned order passed by the learned Trial Court.

Section 45 of the Evidence Act deals with opinions of experts and itprovides that when the Court has to form an opinion upon a point of foreignlaw, or of science, or art, or as to identity of handwriting, or finger impressions,the opinions upon that point of person specially skilled in such foreign law,science, or art are relevant facts, such persons are called experts.

However, fact of the matter is that a person seeking benefit of a Will isrequired to prove it in terms of the provisions contained in Section 68 of theIndian Evidence Act, 1872 and Section 63 of the Indian Succession Act, 1925and, therefore, onus is still on the plaintiff who is seeking benefit of the Will ofSmt. Shailesh Choubey to prove the same in accordance with the provisionscontained in Section 68 of the Indian Evidence Act, 1872 and Section 63 of theIndian Succession Act, 1925.

When these aspects are taken into consideration, then impugned ordercannot be faulted with calling for interference in the supervisory jurisdiction ofthis Court. Petition fails and is dismissed.

Interim order granted on 19.03.2019 is vacated.

Tabish

(VIVEK AGARWAL)JUDGE