No DNA Test unless dispute regarding birth or school records:Tripura High Court

HIGH COURT OF TRIPURA CRP 120 1. Shri Nirmal Ch Ghosh S O. Late Ganesh Ghosh Village Ganki P.O. Ganki. Khowai District Khowai Tripura. 2. Shri Bimal Ghosh S O. Late Ganesh Ghosh Village Ganki P.O. Ganki. Khowai District Khowai Tripura. 3. Smt. Sucharu Bala Ghosh W O Shri Badal Ghosh Village Ganki P.O. Ganki Khowai District Khowal Tripura. 4. Smt. Kalpana GhoshW O Sri. Shyamal Biswas. resident of Barjalla P.O Barjalla Agartala District West Tripura 5. Shri Biswajit Ghosh S O. Late Naresh Ch Ghosh. resident of B.B.C Para. P.O Khowai. District Khowai Tripura. 6. Shri Prasenjit Ghosh S O. Late Naresh Ch Ghosh. resident of B.B.C Para. P.O Khowai. District Khowai Tripura. 7. Smt Pratima Ghosh W O Late Subhash Ch Ghosh. Village Ganki P.O. Ganki. Khowai District Khowai Tripura. 8. Sri Mahitosh Ghosh S O Late Subhash Ch Ghosh. Village Ganki P.O Ganki. Khowai District Khowal Tripura. 9. Smt. Dipika Ghosh D O Late Subhash Ch Ghosh. Village Ganki P.O. Ganki. Khowai District Khowal Tripura. 10. Sri Prantosh Ghosh S O Late Subhash Ch Ghosh. Village Ganki P.O. Ganki. Khowai District Khowai Tripura. Petitioner(s) 1. Sri Partha Ghosh and Ors S O. Unknown. C O Sri Kumod Sarkar Kalikapur Agartala P.O.Ramnagar. West Tripura. 2. Smt Chumki Das W O. Sri Partha Ghosh. C O Shri Kumod Sarkar. Kalikapur Agartala PO Ramnagar West Tripura 3. Smt. Rekha Rani DeyW O Late Debasish Ch. Roy Town Ganki PO Ganki Khowai District Khowai Tripura. ii)Miss Diya Roy D O Late Debasish Ch. Roy Town Ganki PO Ganik Khowai District Khowai Tripura. 4. Shri Jadu Roy S O. Late Digendra Kr. Roy Town Ganki PO Ganki Khowai District Khowai Tripura. 5. Shri Bimal Deb S O. Late Pushpa Ghosh Lalcharra P.O Khowai District Khowai Tripura. 6. Smt Reba Das W O Shri Bimal Deb Lalcharra P.O Khowai District Khowai Tripura. Respondent(s) For Petitioner(s) For Respondent(s) Date of hearing Date of delivery of judgment & Order Whether fit for reporting Mr. T. D. Majumder Sr. Adv. Mr. S. Lodh Adv. 04.01.2022 04.01.2022 No HON’BLE MR. JUSTICE T. AMARNATH GOUD Judgment & Order It is the case of the petitioner that the respondent is not the son of the deceased Kshitish Ghosh and under the garb of certain Wills the respondent is selling the properties which is in dispute before the trial court and the application which is said to be dismissed seeking to get the DNA tested the petitioner is before this court. The counsel for the petitioner submits that the first respondent is alienating the properties to third parties and nothing remains for the petitioners who are the siblings if they succeed before the trial court. Counsel for the first respondent who claims to be the son of the deceased Kshitish Ghosh and his spouse Fulu Rani Ghosh submits that in his school records and birth certificate and all documents indicates that the respondent is the son of the deceased Kshitish Ghosh and relied upon a judgment by the apex court in Goutam Kundu vs State of W.B and AnotherNo.26492 decided on 14 05 1993) which says that in a routine manner the blood test need not be conducted to prove the genuineness of the parents. Heard both sides. It is not in dispute that the petitioners herein who are the petitioner plaintiffs before the trial court that they are aware of the certificates like Birth Certificate School Records and certificate from Revenue Department Aadhar Card Ration Card and the certificate issued by the Magistrate to show that where it reflects the name of Partha Ghosh son of Kshitish Ghosh and Fulu Rani Ghosh remains unchallenged. The only attack of the petitioner plaintiffs before the trial court is challenging the Will and to declare the petitioner plaintiffs as legal heirs and not the first respondent Partha Ghosh. Unless and until there is a challenge to the birth documents and school register to show that Kshitish Ghosh is not the father of the first respondent Partha Ghosh there cannot be any direction to get the DNA of first respondent tested to declare whether he is the son of the deceased Kshitish Ghosh and Fulu Rani Ghosh or not. It is not for this court to go into the disputed question of facts when appropriate remedy is available to the parties. The concern expressed by the petitioners who are the siblings of the deceased that they have the vested right and interest over the properties of their biological brother as legal heirs and nothing remains if the first respondent and his spouse proceeds alienating the properties and create third party interest. It is not for this court to decide this aspect. However petitioners plaintiffs are at liberty to move applications before the concerned court seeking appropriate remedy in support of their claim to protect the property. In the event of filing of any such application it is for the court below to consider the same on its own merit without being influenced by the observation made by this court in this revision petition. For the reasons mentioned above this court is not inclined to interfere with the present CRP and accordingly the same stands dismissed and the orders passed by the trial courts are not interfered. In view of the above interlocutory application lying pending if any stands disposed of. Send down the LCRs forthwith. JUDGE 

Summary: The issue as to whether the DNA Test can be allowed in case which involves demand for direction from the court to permit DNA Test of the first respondent for the purpose of determining parentage of the person to prove the allegation of the petitioners that the respondent is not the biological son of the deceased father, who was the owner of the properties in dispute was decided upon by the Tripura High Court bench consisting of Justice T Amarnath Goud in the matters of Nirmal Ghosh and Ors. vs. Partha Ghosh and Ors. CRP 14 of 2020 decided on 4.1.2022. The facts of the case are that the petitioner strongly believe that respondent is not the son of their deceased father who had executed a will.The respondent has been selling certain properties on the pretext of the said will, which are the subject matter of dispute in the trial.This led them to the demand for the DNA test to ascertain if the respondent is genuinely the son of the deceased father, Kshitish Ghosh and their mother, Fulu Rani Ghosh. The petitioners contended that during the trial, the respondent transferred the disputed properties to third parties and if they were successful before the court, nothing would be left to the plaintiffs, who were brothers. They placed reliance on supreme courts decision in Goutam Kundu v. W.B. State and Anr., that DNA Test was required to prove the authenticity of the parents. The Tripura High Court held unless there is an objection in the birth certificates and school records showing that Kshitish Ghosh is not the father of the first defendant, Partha Ghosh, there can be no direction to test the first defendant’s DNA.The petitioner should choose to challenge these documents before a plea for DNA testing could be accepted. The Court also refused to make any observations on the facts of the dispute and accordingly held that it was not its task to delve into the disputed facts when appropriate remedies were available to the parties. Concern expressed by petitioners, who are siblings of the deceased, that their biological siblings have vested rights and interests in their properties as legal heirs and that nothing is left if the first respondent and his spouse transfer the property and create a third party interest.The Court afforded the plaintiff the freedom to bring to the relevant court applications seeking appropriate remedies in support of its claims to protect the disputed property.