IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.503 of 2009 Reserved on: 28.12.2010 Date of decision: 31.12.2010 Devi Saran & ors. …. Petitioners Versus Durgi Devi & ors. ….. Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting? Yes For the petitioners: Mr.Bhupender Gupta, Senior Advocate with Ms.Charu Gupta, Advocate. For the respondents: Mr.K.D.Sood, counsel for respondents No.1 to 5. Mr.Balwant Kukreja, counsel for respondent No.8. Mr.Sandeep Chauhan, counsel for respondents No.10, 12 to 15. _____________________________________________ Deepak Gupta, J. By means of this petition, the petitioners have challenged the orders dated 11.5.2009 and 17.6.2009 whereby the learned Trial Court allowed the application filed by the plaintiff and directed that certain documents mentioned in the application be 2 sent to the expert for comparison of the thumb impressions. The learned Trial Court further directed that the documents be summoned from the concerned office(s) and the expert was permitted to take photographs of the same. To appreciate the rival contentions of the parties, it would be relevant to give the brief background of the case. The plaintiff, Gulab Singh filed a suit in the year 1996 praying that the plaintiff be declared to be exclusive owner in possession of part of the suit land and joint owner in possession alongwith proforma defendants in respect of the other portion of the suit land. He specifically prayed that Mutation No.161 whereby the estate of Sh.Thakur Dass was mutated in favour of Smt.Shaktu alias Durgi Devi be set aside and further that Shaktu had no right to execute any will in favour of the contesting defendants No.1 to 3 and consequently, the sale deed executed by respondents No.1 to 3 in favour of respondent No.4 is also illegal, null and void. It is not necessary to give the other detailed facts of the case but the main question involved is with regard to the inheritance of the property owned 3 by Sh.Thakur Dass. According to the plaintiff, Thakur Dass died intestate and he had only two widows namely Molku and Ghungri. Therefore, mutation was originally sanctioned in their favour but later without any notice to these two ladies, fresh mutation was attested in favour of Smt.Shaktu showing her to be the third widow of Thakur Dass. In the plaint, it was alleged that Shaktu is also known as Durgi Devi. It was further pleaded that Shaktu was never married to Thakur Dass. On these grounds, it was pleaded that since Shaktu had no concern with the suit land, she had no right to execute any Will in respect of the suit land. In the plaint itself, it was also pleaded that some proceedings had taken place in the revenue court and Shaktu had made a statement before such revenue court. The plaintiff while appearing in the witness box asserted that Shaktu alias Durgi was not the wife of Thakur Dass but was in fact, the wife of Bhagwan Dass of Saharanpur. Initially, an application was filed by the plaintiff on 26.7.2001 under Section 73 of the Indian Evidence Act before the learned Trial Court wherein it was prayed that the thumb impressions of 4 Shaktu which were affixed on her statement recorded before the Assistant Collector, 1st Class, Kandaghat in partition case No.2/79 titled as Smt.Shaktu Vs. Gulab Singh & another be sent for comparison with the thumb impressions of Durgi, w/o Bhagwan Dass affixed on sale deed, Ext.PW1/A made in favour of Sh.Satya Devi. The purpose behind moving this application was to show that Shaktu and Durgi Devi are the same person. It is not disputed that this application was allowed by the learned Trial Court on 3.9.2001. This order has never been challenged till date. Thereafter, the parties led evidence. One of the issues framed by the learned Trial Court, i.e., issue No.2-A is ‘Whether Smt.Shaktu was the wife of Thakur Dass, if so, its effect?” OPD Thereafter, in the year 2006, the plaintiff moved another application praying that thumb impression of Smt.Shaktu appearing on the Will, in question, may be compared with the thumb impression appearing on the statement recorded before the Assistant Collector, 1st Grade, Kandaghat. It is not disputed that the original Will was produced by the defendants only when their witnesses were examined and 5 thereafter, the application was moved and allowed vide order dated 11.5.2009, Annexure P/5 which is under challenge. Thereafter, the plaintiff moved another application to call for the original record from Saharanpur, i.e., record of sale deed and prayed that the thumb impressions of Smt.Shaktu alias Durgi Devi on the sale deed be compared with her thumb impressions on the Will and the thumb impressions on the statement recorded before the Assistant Collector, 1st Grade, Kandaghat and also that the expert be directed to take photographs for the purpose of comparison of the same. I have heard Sh.Bhupender Gupta, learned senior counsel for the petitioners and Sh.K.D.Sood, learned counsel for the contesting respondent- plaintiff. From the material on record, it is more than obvious that the basic dispute is whether Shaktu was the wife of Thakur Dass and another dispute is whether Shaktu was also known as Durgi Devi and was in fact, the wife of Bhagwan Dass of Saharanpur. The only admitted thumb impressions of Shaktu are her thumb 6 impressions on the statement recorded before the Assistant Collector, 1st Grade, Kandaghat. In case the thumb impressions on the sale deed executed by Durgi Devi w/o Bhagwan Dass of Saharanpur tally with the thumb impressions on the statement recorded before the Assistant Collector, it will show that Shaktu was also known as Durgi and may have been married to Bhagwan Dass. Therefore, comparison of these two documents is necessary. The comparison of admitted thumb impressions of Shaktu appearing on the statement recorded before the Assistant Collector as well as the thumb impressions on the Will are also necessary. In case the thumb impressions on the Will tally with the thumb impressions on the statement, it will prove that the Will was executed by Shaktu but in case they do not tally, it will show that the Will is a fabricated document. Therefore, such comparison is also necessary. However, I am of the view that at this stage, the learned Trial Court could not direct that the thumb impressions on the sale deed executed by Durgi be compared with the thumb impression on the statement of Shaktu recorded before the Assistant 7 Collector. Other than the statement of the plaintiff, no material has been placed on record to show that Shaktu alias Durgi Devi is one and the same person. This issue has still to be decided. Therefore, the Court could not order such comparison without there being the basic information on record. I also feel that such comparison is really not necessary. In case the thumb impressions on the statement and on the sale deed are of one and the same person, it will show that Shaktu was also known as Durgi Devi. In case the thumb impressions do not tally, it will clearly mean that the case set up by the plaintiff that Shaktu and Durgi are the same persons is not correct. Similarly, in case the thumb impressions on the Will tally with the thumb impression on the statement, it will mean that the Will was executed by Shaktu. Otherwise, it will show that the Will was not executed by Shaktu. Necessary inferences can be drawn without comparison also. If the thumb impressions on the Will differ from the thumb impressions on the statement, they cannot obviously tally with the thumb impressions on the sale deed. If the case of the plaintiff is correct and in case the 8 thumb impressions on the sale deed and on the statement are of the same person then if the thumb impressions on the Will do not tally with the thumb impressions on the statement, it will mean that the Will is fraudulent but if the thumb impressions tally, it will mean that the Will is proper. Therefore, there is no necessity of having the thumb impressions on the sale deed compared with the thumb impressions on the statement. The order of the learned Trial Court is modified to this limited extent only but on all other grounds, the petition is rejected. No order as to costs. December 31, 2010 ( Deepak Gupta ) (m) Judge