Judgment :- 1. In OS No. 46/ 76 filed by the first respondent for partition, a preliminary decree was passed directing division of the plaint schedule 'properties into seven equal shares, and allotment of one share to the plaintiff. The 4th defendant was ex parte. The first defendant passed away. When the plaintiff applied for final decree, defendants 2, 3, 5 and 6 resisted the attempt on the ground that after the preliminary decree dated 3-12-1976, the plaintiff and the 4th defendant had, as a result of mediation, surrendered their shares, by registered surrender deed No. 417/77 of the Chittur Sub Registry, in favour of the other sharers. The plaintiff filed a rejoinder denying execution and registration of any such deed by her, and the court below was thus called upon to find out whether the deed in question was genuine and valid. The plaintiff gave evidence as PW1 asserting that the thumb impression on the surrender deed (Ext.B1) was not hers, and that she had bad no knowledge about the alleged registration. RW1 was the 5th defendant, and RW2, an attesting witness to Ext. B1. RW3 was a finger print expert who opined that the disputed thumb impression (in Ext.B1) was really that of the plaintiff. On a consideration of the evidence before it, the court below felt that the examination of the thumb impression by RW3 was not thorough and complete, that his opinion was not sufficiently corroborated, and that there was evidence to suggest that PW1 might not have been a party to the execution and registration of Ext.B1. 2. It is the above view of the court below which is now being challenged by defendants 2, 3, 5 and 6, in this revision. 3. If I have understood Mr. N. Viswanatha Iyer for the revision petitioners correctly, it has not been his contention that since Ext.Bl was registered, it should have been presumed to be genuine and acted upon. There are no doubt decisions which observe that in view of S.34 and 35 of the Registration Act which empower or cast a duty on the Sub-Registrar to enquire about the identity of the executant and the factum of execution, due registration could be treated as some evidence of execution by the person figuring as executant in the document; but this is only a presumption attaching to official acts, which could be rebutted.
There is enough authority to show that the decision of the Sub-Registrar is not binding on a court before which execution is denied; in such a case, the court can give due weight to the factum of registration. But the final decision should rest on the court's own assessment of the facts and circumstances placed before it. For example, one of the executants of a document might have claimed in it that he was a major at the time; but the Sub-Registrar was not required to enquire into the truth of such a claim, in such a manner as to give a binding decision. His opinion as to the age of the executant at the time of registration cannot be treated as evidence, much less conclusive evidence, by a court of law. Sub-s.(2) of S.60 of the Registration Act deals with the effect of a certificate of registration, and there is no provision in the Registration Act to the effect that registration should be deemed to be conclusive proof of even execution. On the other hand, the proviso to S.68 of the Evidence Act shows that so far as proof of execution of a document is concerned, the calling of an attesting witness can be dispensed with, where the document is registered and execution is not specifically denied, suggesting thereby that the factum of registration cannot by itself amount to proof of execution, where the executant denies it. There are also authorities which suggest that denial of execution includes denial of attestation also. 4. In the present case Ext.B1 appeared to be a registered document; but that by itself was not conclusive proof of its due execution by the plaintiff, once such execution was categorically denied by her. The petitioners themselves were apparently aware of this legal position, otherwise they would not have sought the aid of the finger-print expert (RW3) and the attesting witness (RW2) to establish their case. 5. What is contended is that according to some of the decisions of the Supreme Court, the science of finger - prints is now an exact science, and that therefore, in view of the opinion given by the expert (RW3) based on similarity of ridges, the court below should have accepted the genuineness of the thumb impression in Ext. B1. Under S.45 of the Evidence Act, a finger print expert is just another expert.
B1. Under S.45 of the Evidence Act, a finger print expert is just another expert. His opinion maybe entitled to great weight, but the court is not bound by it. As pointed out by Subba Rao C.J, in Hussenaiah v. Yerraiah (AIR 1954 Andhra 39) the expert's evidence will have to be taken into account along with other evidence and it will be for the court to decide, depending upon the facts of each case, what probative value is to be attached to each such piece of evidence Though the science has "developed to a stage of exactitude", it is still for the court to decide bow far the examination by the finger-print expert has been thorough, complete and scientific. (Bhaluka Behera v. State AIR 1957 Orissa 172) According to R.J. Gounder v. Elaiya Pillai (AIR 1972 Madras 336) where the executant is an illiterate person, the onus of proving that the document was properly explained and interpreted to such person before affixing the mark, is on the party relying on the document. And going by Vareed Kunju v. Chellappan (1983 KLT 281) and S.45 and 46 of the Evidence Act. facts and circumstances which either support or are inconsistent with the opinion of experts are also relevant. 6. If the above be the proper approach to the matter of evaluating the evidence of a finger print expert, who like any other expert, cannot always be assumed to be infallible, however developed his branch of the science is, the only question that remains for consideration is whether the court below has so completely strayed from it as to justify interference under S.115 CPC. 7. RW3 the expert bad stated that on comparing the disputed thumb impression with those in the admitted ones, after taking their photographic enlargements, he had found that the ridge formations had identical characteristics, and that this in his opinion, was sufficient to conclude that the thumb impression found in Ext. B1 was that of the plaintiff. But RW3 had not marked the fixed point in the core to find out the bifurcating delta; and according to some text-books on the subject, these are also prominent or important characteristics requiring comparison. Taking into account the circumstance that the thumb impression in Ext.
B1 was that of the plaintiff. But RW3 had not marked the fixed point in the core to find out the bifurcating delta; and according to some text-books on the subject, these are also prominent or important characteristics requiring comparison. Taking into account the circumstance that the thumb impression in Ext. B1 was somewhat blurred, and also the opinion of text-bock writers that thumb impressions are also capable of being forged, the court below thought that it would not be safe to proceed entirely on the opinion of RW3, and that the safer course would be to examine other relevant circumstances also to see whether they could corroborate or cast doubts on the said opinion. And the court then noticed the following: (i) the consideration (for the surrender) shown in Ext.B1 was Rs. 3000/- whereas according to RW1 what was actually pail was Rs. 6500/-; (ii) The real value of the share surrendered, according to RW1 himself, would have been around Rs 22.000/-; (iii) There were discrepancies between the versions of RW1 and RW2 as to how the parties had proceeded to the Registrar's office; (iv) The plaintiff and the 4th defendant were married sisters of RW.1 and were staying away from the place for long; it was RW1 who told RW2 that they were his sisters; (v) RW2 bad seen them signing Ext. B1, not affixing thumb impression and (vi) He had stepped into the Registrar's office when called upon, and had come out without delay, not caring to see what was happening inside, to others. Evidently, the above were not facts or circumstances fully supporting the opinion formed by RW3; on the ether hand, some of them were inconsistent with its correctness. It is interesting to notice that the attesting witness (RW2) bad not seen the plaintiff affixing her impression on Ext.B1. In law, an attesting witness must have seen the executant affixing his or her mark to the instrument, and be himself must have signed it in his or her presence; and in this sense, it is extremely doubtful whether RW2 could have been treated as an attesting witness at all, competent to prove execution under S.68 of the Evidence Act. What is equally significant is that Ext.B1 had made no mention at all of the suit or the preliminary decree passed therein, and of surrender of the rights recognised by a court.
What is equally significant is that Ext.B1 had made no mention at all of the suit or the preliminary decree passed therein, and of surrender of the rights recognised by a court. I am therefore of the view that no interference is called for in the present proceedings, with the conclusion reached by the court below. The revision is accordingly dismissed, but with no order as to costs.