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2008 DIGILAW 3844 (MAD)

T. v. Sachithanandam VS T. V. thirunavukarasu & Others

2008-10-22

M.VENUGOPAL

body2008
Judgment :- This revision petition is filed by the revision petitioner/plaintiff as against the order passed in I.A.No.1145 of 2008 in O.S.No.114 of 2004 dated 110. 2008 by the District Munsif, Dharapuram in dismissing the application filed under Order 26 Rule 10 CPC praying for an appointment of a Commissioner to take two Wills dated 17. 1974 and 110. 1991 executed by the testator for examining the same by an handwriting expert. 2. The trial Court has passed orders in I.A.No.1145 of 2008 inter alia stating that the Court itself can ascertain the two signatures found from two documents and further the Honourable High Court has given direction to dispose of the main case within two months from 18. 2008 and resultantly dismissed the application. 3. Though as per Section 73 of the Indian Evidence Act, the comparison of signature of an individual with the other admitted signatures can be made by the Court yet this Court is of the considered view that resorting to such practice is not a safe one inasmuch as the Court is not an expert in this regard. Indeed Section 73 of the Indian Evidence Act is to be read as a whole in the light of Section 45 of the Evidence Act. Moreover, findings by the trial Court on visual comparison without expert aid cannot be conclusive as per the decision reported in K. Jhangavel Udayar Vs Karthayee Ammal(2000 ML.J.131) (Madras). It is true that the Court cannot be an expert and base its conclusion merely on comparison of signatures by itself. Generally, speaking the Judge should as a matter of prudence and caution must be hazy to base his finding in regard to the genuineness of the hand writing which forms the sheet anchor of the plaintiffs case against the defendant solely on comparison made by himself as per the decision in S. Nagarathamam Vs P. Morappan (1999 M.L.J(Sup) 248). Generally, speaking the Judge should as a matter of prudence and caution must be hazy to base his finding in regard to the genuineness of the hand writing which forms the sheet anchor of the plaintiffs case against the defendant solely on comparison made by himself as per the decision in S. Nagarathamam Vs P. Morappan (1999 M.L.J(Sup) 248). In fact, the Honourable Supreme Court in the decision Thiruvengadam Pillai Vs Navaneethammal and another ( 2008(4) SCC 530 ) has held that "necessarily the Judgment of the Court should contain reasons for any conclusions based on comparison to the thumb impression if it choose to record a finding thereon and the Court should avoid reaching conclusions based on a mere causal or routine glance or perusal etc.," Further this Court in Chandran Udayar Vs Kasivel ( 2008(3) MLJ 897 ) has held that "Court is not suppose to function as an expert to compare disputed writing" . In this view of the matter , this Court is of the view that the conclusion arrived at by the trial Court that it can find out the real signature from and out of the two signatures found in the Will documents is not correct and resultantly, this Court allows the revision in furtherance of substantial cause of justice. 4. In fine, the civil revision petition is allowed and the order passed in I.A.No.1145 of 2008 in O.S.No.114 of 2004 on the file of District Munsif, Dharapuram is hereby set aside. It is made clear that the parties are to co-operate with the conduct of the main case in taking steps to complete the trial of the case at an early date bearing in mind of the fact that already a time frame has been set by the Honourable High Court to dispose of the case and the trial Court is directed to act accordingly. There will be no order as to costs.