SSP 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.8845 OF 2009 Nishikant Avantilal Patni ...Petitioner vs. Sou Sangeeta Nitinkumar Mehta & Ors. ...Respondents Mr.P.B.Shah for the petitioner Mr.Sachin Chavan i/b Mr.Shriram Kulkarni for the respondent nos.1 to 5. CORAM :A.S.OKA,J. DATE : MARCH 22, 2010 P.C.: 1 Heard the learned counsel for the petitioner and the learned counsel for the respondent Nos. 1 to 5. Considering the narrow controversy involved in this writ petition, the same is taken up for final disposal. The petitioner is the defendant and the respondents are the original plaintiffs. The respondents filed a suit for declaration that there are the owners of the suit property. A declaration was claimed that the alleged will dated 25 th September 1980 of late Sarlabai Jayantilal Patni was bogus and illegal. 2 An application was made by the respondents at Exhibit-48. In the said application the respondents contended that the deceased Sarlabai had signed an account opening form of Dena Bank Yewla Branch and had given her specimen signature to the bank. It is stated that the respondents have obtained a copy of the said specimen signatures from the bank and also obtained opinion of the handwriting expert as regards the alleged signatures on the disputed will. A permission was sought by the respondents to produce on record the report SSP 2 of the handwriting expert along with the photographs taken by the hand writing expert. The said application was rejected by order dated 16 th November 2007 on the ground that in the pleadings no reliance was placed on the report of the handwriting expert. 3 The respondents made an application at Exhibit-59. The prayer in the said application was for issuing witness summons to the concerned Bank for production of specimen signature dated 18 th January 1978. Further prayer in the said application was that after specimen signature was produced by the bank, the said specimen signature of the deceased be forwarded to the handwriting expert for his opinion on the signature appearing on the alleged will. By the impugned order, the said application was allowed and the trial Court directed that the copy of the form of specimen signature of deceased Sarlabai and the alleged will of Sarlabai be sent to the handwriting expert for ascertaining the genuineness of the signatures on the will. 4 Various contentions have been raised by the learned counsel for the petitioner in support of this petition. He submitted that in view of rejection of the application at Exhibit-48, the subsequent application was not maintainable. He submitted that in any case, there was no warrant for sending documents to handwriting expert. 5 The learned counsel for the respondents supported the impugned Judgment and Order. 6 I have carefully considered the submissions. In the suit filed by the respondents, there is a specific challenge to the will dated 25 th September 1980 allegedly executed by the deceased Sarlabai. In fact, an issue has SSP 3 been framed on the basis of the said contention. There is also an issue framed on the basis of the contention of the petitioner that he has become an absolute owner of the suit property on the basis of the said will. An affidavit in lieu of examination in chief has been filed by the 5 th respondent. In the said affidavit a specific contention has been raised that the signature on the alleged will is bogus. It is true that earlier application at Exhibit-48 made by the respondents was rejected. It must be noted here that the opinion of the handwriting expert relied upon by the respondents in Exhibit-48 was based on comparison of a xerox copy of the specimen signature form and a xerox copy of the alleged will. The said application was rejected on the ground that the respondents had not pleaded existence of such opinion of any handwriting expert. In the application at Exhibit-59, prayer of the respondents was for issuing witness summons to the concerned bank to produce the specimen signature of the deceased and thereafter to send the said specimen signature and the original will for obtaining report of the handwriting expert. 7 It is well settled that the report of the handwriting expert is an opinion evidence. It is also well settled that the evidence need not be pleaded in the pleadings. There is a specific challenge by the petitioner to the alleged will on the ground that the signature of the testator appearing on the will is bogus. The respondents are entitled to seek opinion of the handwriting expert based on the said specimen signature as regards the genuineness of the alleged signatures of the said Sarlabai appearing on the alleged will. It is true that the respondents could not have used the machinery of the court by seeking relief of sending the SSP 4 documents to handwriting expert. The application made by the respondents at Exhibit-59 to the extent of the prayer to issue witness summons to the bank for production of specimen signature ought to have been allowed. After the said specimen signature is produced, the petitioner can always apply to the trial Court for granting permission to allow the handwriting expert appointed by them to take photographs of the disputed will and the specimen signatures in the Court premises under the supervision of an Officer appointed by the Court. Thereafter, the respondents can produce an opinion of their handwriting expert. The said opinion will not be admissible in evidence unless the same is duly proved by the respondents. Therefore, the impugned order needs to be set aside and substituted by an order in terms of the discussion made above. 8 Hence, I pass the following order : i) Impugned order dated 3 rd August 2009 is quashed and set aside. ii)The trial Court will issue witness summons to the concerned Bank for production of documents as prayed in the application. iii)After specimen signature is produced in pursuance of the witness summons, it will be open for the respondents to apply to the trial Court for granting permission to the handwriting expert appointed by them to visit the court premises and to take photographs of the specimen signature and the disputed will. If such application is made by the respondents, the trial Court will grant permission. However, the handwriting expert shall be permitted to take photographs in the Court premises in presence of appropriate Officer of the Court. It is SSP 5 obvious that at that time, it will be open for both the parties and their Advocates to remain present. iv)It will be open for the respondents to produce and prove the report/opinion submitted by the handwriting expert. v) All objections of the petitioner to such opinion are kept open. vi)The application made by the respondents at Exhibit-59 stands disposed of in above terms. vii)It is made clear that all contentions of the parties on merits of the suit are kept open. viii)Writ petition is disposed of in above terms. JUDGE