Patna High Court
Barkha Devi @ Barkha Rani vs Ram Pyare Patel And Ors on 17 March, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.1673 of 2017
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Barkha Devi @ Barkha Rani, Daughter of Gurusharan Patel, Wife of Rakesh
Roshan, Resident of Mohalla-Pokhara Birsen Singh Colony, Police Station-
Hajipur Town, Post office Municipality Hajipur, District-vaishali
... ... Petitioner/s
Versus
1. Ram Pyare Patel, Son of Late Jagdish Patel
2. Gurudayal Patel, Son of Late Jagdish Patel
3. Haridayal Patel ,Son of Late Jagdish Patel
4. Shivdayal Patel, Son of Late Jagdish Patel
All Residents of Mohalla-Manik Chauk @ M.Chauk, Police Station-Hajiur
Town, Post Office-Municipality Hajipur, District-Vaishali
5. Dharam Sheela Devi, Daughter of Jagdish Patel, Wife of Baijnath Patel
Singh, Resident of Village-Salahpur Lalganj, Police Station-Lalganj, District
-Vaishali.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Vijay Kumar, Advocate
For the Respondent/s : Mr. Kalyan Shankar, Advocate
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CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
ORAL JUDGMENT
Date : 17-03-2025
Heard learned counsels for the respective parties.
2. The petitioner is aggrieved by the order dated
08.06.2017
passed by the learned Additional District Judge-
VIII, Vaishali at Hajipur in Probate Case No. 29 of 2011
whereby and whereunder the learned Additional District Judge
directed for comparison of signature of the testator late Jagdish
Patel existing on the Will dated 29.03.1993 as well as on
Mortgage Deed dated 21.09.1959.
3. The learned counsel for the petitioner submits that
Patna High Court C.Misc. No.1673 of 2017 dt.17-03-2025
the learned trial court has not considered that the documents are
not admitted documents and under Section 73 of the Evidence
Act, the said documents cannot be used for comparison of
signature of testator. The learned counsel further submits that
the Will as well as Mortgage Deed are unregistered document
and there is even no presumption of correctness associated with
such documents. The learned counsel further submits that the
learned trial court has not considered the fact that in his
application, the probate petitioner/respondent has not even
mentioned with which document, the handwriting and signature
of the testator are going to be compared. The learned counsel
further submits that the present petitioner denies the execution
of unregistered mortgage deed brought on record by the probate
petitioner/respondent and unless documents are admitted, no
comparison could be made. Thus, learned counsel submits that
the impugned order is not sustainable and the same needs to be
set aside.
4. The learned counsel appearing on behalf of
respondents submits that there is no infirmity in the impugned
order and the same does not need any interference. The learned
counsel further submits that vide order dated 16.01.2017, the
probate petitioners/respondents were directed to bring the
Patna High Court C.Misc. No.1673 of 2017 dt.17-03-2025
original document on record for comparison and consequently,
the respondents brought the said document on record, which is
one of the documents stated to be executed by the testator way
back in the year 1959 and so, there is presumption of
correctness of the said document. The learned counsel further
submits that the learned trial court considered the matter and
passed orders for photography of the document and sending the
same to the handwriting expert for comparison. Thus, there is no
infirmity in the impugned order.
5. I have given my thoughtful consideration to the rival
submission of the parties and perused the record.
6. From perusal of application dated 16.06.2016, it is
apparent that the respondents have not mentioned anywhere that
with which document the respondents wanted to compare the
signature of the testator and whether such document was
admitted document or not. From the impugned order, it appears
that the learned trial court passed the order on 16.01.2016
purportedly directing the respondents to bring on record the
documents with which the respondents wanted to compare the
signature of the testator. But nowhere the learned trial court has
mentioned about the document being acceptable to both sides
and as it has been submitted that the said document is not a
Patna High Court C.Misc. No.1673 of 2017 dt.17-03-2025
registered document, its execution would always be surrounded
in suspicion as the same is not being admitted by the present
petitioner. Thus, learned trial court has not discussed at all the
document which it was going to allow for comparison with the
signature of the testator on the Will for which probate has been
sought. Hence, the impugned order dated 08.06.2017 passed in
Probate Case No. 29 of 2011 by the learned Additional District
Judge-VIII, Vaishali at Hajipur, could not be sustained and the
same is set aside.
7. However, the respondents are at liberty to move
before the learned trial court to bring some other document for
comparison of signature of testator and the same would be dealt
with by the court concerned strictly in accordance with law.
8. With the aforesaid observations/directions, the
present petition stands allowed.
(Arun Kumar Jha, J)
V.K.Pandey/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 19.03.2025
Transmission Date NA
