C.R No. 3757 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R No. 3757 of 2009 Decided On : 06.10.2009 Rajwant Kaur ...Petitioner versus Kundan Singh and others ...Respondents CORAM : HON'BLE MR. JUSTICE HEMANT GUPTA Present : Mr. S. P. Soi, Advocate, for the petitioner. Mr. Gulzar Mohd., Advocate, for the respondent. HEMANT GUPTA, J. (ORAL) The challenge in the present revision petition is to the order passed by the learned trial Court on 02.08.2007 refusing to set aside the ex parte judgment and decree dated 30.01.1999 and the order in appeal dated 15.04.2009 whereby the order passed by the trial Court was maintained. The petitioner is daughter of Karnail Singh. The estate of her father is in dispute. The plaintiff, his brother and sons of Karnail Singh have sought the estate of their father on the basis of Will dated 03.06.1997. The present suit claiming estate of Karnail Singh was filed on 21.04.1999. As per the record, defendants appeared before the learned trial Court in person on 05.08.1998 and filed C.R No. 3757 of 2009 -2- written statement admitting the claim of plaintiff. None appeared on behalf of the defendants on 28.01.1999. The suit was decreed ex parte on 30.01.1999. An application to set aside the judgment and decree was filed by the petitioner on the ground that her signatures have been forged on the zimni order sheet, power of attorney, as well as written statement. She was never served in the case and has never appeared or signed any document. It was also case of the petitioner that her sisters Balwinder Kaur and Narinder Kaur have also not appeared before the Court and their signatures have also been forged. In support of the allegations that the power of attorney, written statement and zimni orders does not bear the signatures of present petitioner, she has examined Handwriting and Finger Prints Expert Shri F.C.Sharma as AW-2, who has given his report Exhibit AW-2/A. The petitioner herself appeared as AW-1. She has deposed that the plaintiffs have produced another lady on her behalf and have obtained a decree by playing fraud with the Court. To rebut the said evidence, Sardool Singh appeared as RW-3 and deposed that his sisters have filed written statement. He identifies signatures of his three sisters as R-1, R-2 and R-3. One of the sisters, Balwinder Kaur has appeared as RW-1 who has deposed that they have engaged an advocate and gave power of attorney. She has deposed that Narinder Kaur and C.R No. 3757 of 2009 -3- Rajwant Kaur have signed power of attorney Exhibit R-1 and that Rajwant Kaur and Narinder Kaur have signed the written statement and reply to the stay application as well. The learned trial Court dismissed the application on the basis of statement of RW-1 Balwinder Kaur and RW-2 Narinder Kaur, who have deposed that the petitioner has signed the power of attorney, as well as, written statement and reply to the stay application in their presence. It was, thus, found that direct evidence led by the respondent is a proof that Rajwant Kaur appeared in the Court through counsel. It was found that since the Handwriting Expert compared the handwriting and signatures of Rajwant Kaur on written statement as well as power of attorney dated 06.08.1998 and 28.09.1998 with the statement made by her in Court on 27.04.2004 and 30.11.2005, therefore, though the same has variations. The trial Court came to the finding that they are similar in their basic characteristics of handwriting. The application to set aside ex parte decree was dismissed. Such finding was affirmed in appeal, as well. The plaintiffs have claimed the estate of their father on the basis of a Will by disrupting the natural course of succession. The petitioner is none else but their real sister. Admittedly, the plaintiffs are in possession of the suit property which is apparent from the fact that suit is for declaration that they are owners and in possession of the suit land. The statements of Balwinder Kaur and Narinder Kaur that Rajwant Kaur has signed the written C.R No. 3757 of 2009 -4- statement, power of attorney and reply to the stay application is that of interested witness. They are the one who have admitted the claim of the plaintiffs. The report of Handwriting and Finger Prints Expert is to the effect that the signatures on the written statement, power of attorney and reply to the stay application do not tally. Though the Court was competent to compare the handwriting and signatures to return the finding, but what is reported is that such signatures do not appear to be forged, rather they are similar in their basic characteristics of handwriting. The observation is opinion based and not categorical. Since the plaintiffs are already in possession of the suit property, they still not suffer any prejudice if the suit is contested on merits and the Will is permitted to be proved in accordance with law so as to settle the dispute in authoritative manner rather in slip-shot manner. Consequently, the petition is allowed. The ex parte judgment and decree dated 30.01.1999 is set aside. The petitioner is permitted to participate in the suit by filing written statement. The parties with their respective counsel are directed to appear before the learned trial Court on 10.11.2009 for further proceedings in accordance with law. OCTOBER 06, 2009 (HEMANT GUPTA) shalini JUDGE