: 1 : 91-11-nms= USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION NOTICE OF MOTION NO. 91 OF 2011 IN SUIT NO. 52 OF 1995 IN PETITION NO. 689 OF 1994 Naval Raghunath Adsul .. Plaintiff v/s. Mrs. Manik Anant Adhate & Ors. .. Defendants ......... Ms. R.C. Nichani for the plaintiff Mr. H.T. Pawar for the defendant nos. 3A to 3D. ......... CORAM : R.Y.GANOO, J DATE : 26th AUGUST, 2011. P.C. : 1. Heard learned Counsel on both sides. The suit is pending at the stage of recording of evidence. The defendants have not closed their case. The defendant nos. 3A to 3D have taken out this notice of motion for the following reliefs. : 2 : 91-11-nms= “That the defendants may be permitted to take photostate and / or photographs of the Will of the deceased Raghunath Maruti Adsul dated 8th January, 2011 through handwriting expert”. 2. The plaintiff has filed affidavit in reply to this notice of motion. I have heard learned Counsel on both sides. Few facts are required to be stated before I come to the merits of the matter. Pursuant to the order dated 6th December, 1995 passed by this Court in Motion No. 2549 of 1995, the handwriting expert was permitted to take photographs and submit the report. It is admitted by defendant nos. 3A to 3D that pursuant to this order, handwriting expert Mr. Haresh Gajjar was appointed and he had taken the photographs of the disputed signatures and had filed his report dated 22nd September, 1997. Learned Counsel Mr. Pawar admitted that the said report has been marked as “Y” for identification. 3. According to defendant nos. 3A to 3D, said handwriting expert Mr. Gajjar is unable to work on account of physical infirmities and age factor and because of age factor Mr. Gajjar has settled at his native place and will not be able to attend and adduce evidence before the Commissioner or : 3 : 91-11-nms= before the High Court. Defendant nos. 3A to 3D now want that the photographs of the Will and in particular signatures be taken for the purposes of examination of the said document by another handwriting expert. Name of the new handwriting expert is mentioned in paragraph 9 of the affidavit. 4. Learned Counsel Mr. Pawar appearing for defendant no.3A to 3D took me through the entire affidavit in support and submitted that according to plaintiff, the Will was registered by Sub-Registrar of Assurance and when defendant no.3 made enquiries with the Office of the Sub-Registrar, they were informed that the Will is not traceable. As against this, it is seen that the original Will is in the custody of the Prothonotary and Senior Master and the said Will bears endorsement of the office of the Sub-Registrar that the Will is duly registered. Learned Counsel Mr. Pawar wanted to submit that the Court should consider the said Will and hold that it does not bare endorsements in accordance with the provisions of the Indian Registration Act. In my view, it is not necessary for this Court to go into whether the procedure for registration has been properly followed by the office of the Sub-Registrar. After having perused the said document, it is clear that the Will is duly : 4 : 91-11-nms= registered by the Sub-Registrar, Bandra, Mumbai. This is particularly so because an endorsement has been passed by the Office of the Joint Sub- Registrar, Bandra, Mumbai as follows. “Registered at No.P-64/91 BK No.3 142 to 144” . 5. This endorsement is sufficient to treat that the Will is duly registered with the Sub-Registrar of Assurance. In any case, whether the Will is duly registered with the Sub-Registrar of Assurance or not will have no direct bearing, on the question of proof of the Will. In my view, the contention raised in paragraph 10 of the affidavit in support cannot be accepted for the purposes of deciding point in question. 6. It is required to be noted that way back in the year 1995, defendants expressed desire to have the Will duly examined at the hands of the handwriting expert so that the evidence of the said handwriting expert can be used to dispute the Will. Accordingly report dated 22nd September, 1997 submitted by Mr. Gajjar is on record and it is marked for identification. If a document in the nature of report submitted by the handwriting expert has been marked for identification, the person who is : 5 : 91-11-nms= interested in getting such a document proved has to examine appropritae witnesses and get that document proved. The defendant no.3B has in paragraph 8 states that said Mr. Gajjar has due to his physical infirmities and age has settled down at his native place and will not be in a position to attend and adduce evidence before the Commissioner or before the High Court, I am not inclined to accept the bare word of defendant no.3B. The defendants had the benefit of the report of the handwriting expert and the said handwriting expert is available for examination and prove the said Will. In my view, there is no need to have a second round of getting the report from the handwriting expert and have it proved. It is to be noted that the matter is pending at the stage of recording of evidence for substantially long time. If the contention raised by defendant nos. 3A to 3D is accepted, there will be further delay in the matter. When the report given by handwriting expert is available before the Court, the said report can be used by the defendants after it is duly proved and there is no need to have the second report. 7. It is pertinent to note that Mrs. Manik A. Adhate, who was original defendant no.2 was initially opposing the Will. After her death, her heirs are brought on record and these heirs have taken out the present motion. : 6 : 91-11-nms= The defendant no.1 has not taken out the notice of motion for reliefs similar to the one asked in the present notice of motion. This point is required to be noted and it goes against the interest of defendant nos. 3A to 3D. 8. In my view, there is no need to have another opinion of the another handwriting expert. It is open for defendant nos. 3A to 3D to make the use of report dated 22nd September, 1997 submitted by Mr. Gajjar to dispute the Will. The notice of motion is dismissed. The defendant nos. 3A to 3D to pay to plaintiffs costs quantified at Rs.5,000/- for taking out this notice of motion. Hence, following order is passed. ORDER (i) The Notice of Motion is dismissed. (ii)Defendant nos. 3A to 3D to pay to plaintiff costs of Rs.5,000/-. Costs to be paid on or before 20th September, 2011. Defendant nos. 3A to 3D are free to have Mr. Gajjar examined before the Court and if they wish to have Mr. Gajjar before the Court, they are free to apply for : 7 : 91-11-nms= witness summons. (iii) Matter is adjourned to 21st September, 2011 for directions. On that date, the defendants will have to clarify to the Court whether they are interested in examining Mr. Gajjar or not. Appropriate orders shall be passed on that date. 9. After the aforesaid order is passed, learned Counsel for the defendant nos. 3A to 3D prayed for stay of the operation of the order. Looking to the nature of the order passed, there is no need to stay of the operation of the order. Request is rejected. (R.Y.GANOO, J.)