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2008 DIGILAW 379 (KAR)

Achyut v. Nanda

2008-07-21

S.ABDUL NAZEER

body2008
Judgment :- Abdul Nazeer, J. In this case, the petitioners have called in question the order on I.A. No. 20 dated 1-8-2007 in O.S. No. 22/2002 on the file of the I Additional Civil Judge (Sr. Dn.) Belgaum. 2. Thepetitioners are defendant Nos. 1 and 2 and respondent No.1 is the plaintiff and respondent Nos. 2 to 5 are defendant Nos. 3, 4, 5 and 6 in the aforesaid suit. For the sake of convenience, the parties are referred to by their respective ranking before the Court below. .3. The plaintiff filed the aforesaid suit for partition and separate possession of the suit schedule properties. In the said suit, defendant Nos. 1 and 2 have filed their written statement contending that the suit filed by the plaintiff is not maintainable since there is already a mutual partition between the parties in the presence of the elders and that the same has been reduced into writing. Defendant No. 3 has filed her written statement contending that the suit schedule properties are the ancestral properties and acquired out of joint properties and she has got 1/3" share in the suit schedule properties. The third defendant has further contended that there is no partition by metes and bounds between the plaintiff and defendant Nos. 1 and 2 and that the properties continue to be the joint family properties in the hands of the plaintiff and defendant Nos. 1 and 2. On the basis of the pleadings, the Court below has framed necessary issues for consideration. The relevant issue for the purpose of this case is issue No. 5, which is as under: ."Whether defendant Nos. 1 and 2 prove earlier partition dated 29-4-1999 among them and that plaintiff was allotted share as pleaded in para No. 5 of the written statement?” 4. In her evidence, the third defendant has denied her signature on the aforesaid memorandum of partition (Ex.D 1). At this stage, defendant Nos. 1 and 2 filed application I.A. No. 20, which is referable to Order 26 Rule 10-A of the Code of Civil Procedure. In the application, defendant Nos. 1 and 2 have prayed that the signature of defendant No. 3-Smt. Sarojini Vasudev Bank be sent to the handwriting expert along with the admitted signature found in their written statement and the vakalath. The said application was opposed by the plaintiff as well as defendant No. 3. In the application, defendant Nos. 1 and 2 have prayed that the signature of defendant No. 3-Smt. Sarojini Vasudev Bank be sent to the handwriting expert along with the admitted signature found in their written statement and the vakalath. The said application was opposed by the plaintiff as well as defendant No. 3. The court below on consideration of the rival contentions of the parties, has rejected the application by the impugned order. .5. Sri Datar, learned Counsel appearing for the petitioners submits that defendant Nos. 1 and 2 have specifically pleaded that there is a prior partition between the parties in respect of the suit schedule properties as per the memorandum of partition-Ex.D1. Defendant No.3 in her evidence has denied her signature or the said document. Similarly, the plaintiff also denied her signature on the said document. Therefore, an enquiry is necessary into the question, which can be done by the scientific investigation as provided in Order 26 Rule 10-A of the Code of Civil Procedure. In support of his contention he has relied on the decision of the Apex Court in the case of H. Venkatachala Iyengar Vs B.N. Thimmajamma And Others ( AIR 1959 SC 443 ) and the decision of this Court in the case of Chikkana Vs Lokesha And Others (ILR 2001 KAR 2681). On the other hand, learned Counsel .appearing for the respondents have sought to justify the order of the trial Court. 6. I have carefully considered the arguments made by the learned Counsel at the Bar and perused the materials placed on record. 7. Admittedly, the suit filed by the plaintiff is for partition and separate possession of the suit schedule properties. It is the case of the plaintiff as also defendant No. 3 that the properties are their ancestral properties. However, defendant Nos. 1 and 2 contend that there is a prior partition of the properties as per the memorandum of partition-Ex.D 1 on 29-4-1999. Defendant No. 3 in her evidence has denied her signature on the said document. 8. Order 26 Rule 10-A of the Code of Civil Procedure provides for appointment of a Commission for scientific investigation. However, defendant Nos. 1 and 2 contend that there is a prior partition of the properties as per the memorandum of partition-Ex.D 1 on 29-4-1999. Defendant No. 3 in her evidence has denied her signature on the said document. 8. Order 26 Rule 10-A of the Code of Civil Procedure provides for appointment of a Commission for scientific investigation. It states that 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 interest 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. 9. In Venkatachala Iyengars Case (Supra), the Apex Court has held that under Section 67 of the Evidence Act, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting and for proving such a handwriting under Sections 45 and 47 of the Evidence Act, the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. 10. This Court in Chikkanas Case (Supra) has held that discretionary powers have been given to the Court under Order 26 Rule 10-A of the Code of Civil Procedure to issue commission directing the Commissioner to enquire into such question and report thereon to the Court. It is further held that the discretionary power has been given to be exercised if the conditions are shown to exist namely the case involves a question which requires scientific investigation and the scientific investigation if cannot be conducted in presence of the Court and in the interest of justice and for due and proper decision of the Court if it is necessary to issue the Commission, the Commission has to be issued. It has been further held thus: "11. In the present case, the dispute is about the genuineness of the signature of the testator on the Will on the basis of which the defendant claims title. The question of signatures as to whether those signatures are of the testator and if admitted signatures have been produced, whether the signature in dispute is of the same person whose signatures are contained on any admitted document. The question of signatures as to whether those signatures are of the testator and if admitted signatures have been produced, whether the signature in dispute is of the same person whose signatures are contained on any admitted document. This question has to be scientifically analyzed, examined and considered and then handwriting expert has to give his opinion after scientifically testing the same. It requires a specialized skill and scientific knowledge to give opinion on that subject. So such a question can definitely be said to involve scientific investigation." 11. As stated above, the suit filed by the plaintiff is for partition and separate possession of the suit schedule properties. Respondent No.3 is the elder sister of defendant No. 1 and plaintiff is the widow of the brother of defendant No. 1. The defence put forth by defendant No. 1 is that there has already been a partition of the family properties between the parties as per Ex.D 1. The defendant No. 3 has denied her signature on Ex.D 1. Whether the signature in dispute is the signature of defendant No. 3 or not has to be answered by an expert after comparing the same with the admitted signature. This question has to be scientifically analyzed examined and considered by an expert and then, he has to give his opinion after scientifically testing the same. The burden is on defendant Nos.1 and 2 to establish that the disputed signature is of defendant No. 3. Therefore, the Court below was not right in rejecting the application filed by defendant Nos. 1 and 2. 12. In the result, the writ petition succeeds and it is accordingly allowed. The order of the Court below on I.A. No. 20 dated 1-8-2007 in O.S. No. 22/2002 is hereby quashed and I.A. No. 20 is allowed. I direct the Court below to send the document Ex.D 1 as also the written statement and vakalath of defendant No. 3 containing her admitted signatures to the State Government Forensic Laboratory, Bangalore, for their opinion within a period of four weeks from the date of receipt of a copy of this order. No costs.