Order 26 Rule 10A CPC- Signature verification in Probate- Vital to the grant of probate.

Signature verification in Probate  wherein expert Opinion has been sought  has been dealt with in Pawan Kumar Jhunjhunwala vs Sankarlal Jhunjhunwala And … on 5 March, 2014,  The Hon’ble High Court of Calcutta was hearing an appeal against an order allowing an application  filed under Order 26 Rule 10A of the Code of Civil Procedure  which was at the argument stage , the same was allowed by the trial court . The High Court of Calcutta found no infirmity in allowing the application by the trial court . There are several cases that can be found here which deal with probate cases

Order 26 Rule 10A of the Code of Civil Procedure

The provision deals with scientific investigation and also includes  Expert Opinion  for Signature verification in Probate cases.

10A. Commission for scientific investigation
(1) Where any question arising in a suit involves any scientific investigation which cannot, in the opinion of the Court, be conveniently conducted before the Court, the Court may, if it thinks it necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to inquire into such question and report thereon to the Court.

(2) The provisions of rule 10 of the Order shall, as far as may be, apply in relation to a Commissioner appointed under this rule as they apply in relation to a Commissioner appointed under rule 9.

The High Court observed that the authenticity of the signatures  in the  document signed by the testator were questioned in the  written statement filed in connection with the probate proceedings.

Section 45 of The Indian Evidence Act, 1872  reads as follows:-

Application under

Order 26 Rule 10A CPC

Signature verification in Probate cases is vital when there is doubt on the authenticity of signature of the testator.

Opinion of experts. – When the Court has to form an opinion upon a point of foreign law or of science or art, or as to identity of handwriting [or finger impressions], the opinions upon that point of persons specially skilled in such foreign law, science or art, [or in questions as to identity of handwriting][or finger impressions] are relevant facts.

Such persons are called experts.

Section 73 of the Indian Evidence Act, 1872 reads as follows:-

Comparison of signature, writing or seal with others admitted or proved. – In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose.

The Hon’ble High Court of Calcutta further held that  “

“However, when it comes to matters of signature this Court is inclined to affirm the view taken by the Learned Fast Track Court that it is safe to obtain the opinion of an expert. It is common experience that the signature of an individual is peculiar to him or her and even such signature is likely to vary with age and time. There may be minute aspects to such signature such as crossing of a’t’ or dotting of an ‘i’ – which lie within the domain of the expert.”

Conclusion

It should be borne in mind that the Signature verification in Probate wherein the  authenticity of the signatures should have to be questioned in the written statement so as to file an application  under Order 26 Rule 10A of the Code of Civil Procedure seeking opinion of   hardwriting experts in Probate cases. The High Court has held that the “… Learned Trial Court has committed no error in considering it safe for adjudication to take the help of an expert when there is dispute regarding genuineness of a signature. It is true that under Section 73 of The Evidence Act the Court is entitled to compare a disputed signature with any other admitted signature filed before it. For more information on Signature verification in Probate cases and /or  filing probate cases kindly click here

Inputs by

Tapan Choudhury,
Advocate