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Andhra High Court · body

2009 DIGILAW 257 (AP)

N. Sreenivasulu v. N. Prakash Reddy

2009-04-09

G.ROHINI

body2009
Judgment :- This Civil Revision Petition is directed against the order dated 7.1.2009 in E.A.No.458 of 2008 in E.A.No.533 of 2005 in E.P.No.135 of 2004 in O.S.No.40 of 2002 on the file of the Court of the Principal Senior Civil Judge, Anantapur. O.S.No.40 of 2002 was filed by the 1st respondent herein for recovery of money allegedly due from the 2nd respondent herein under a promissory note dated 7.6.2001. The said suit was decreed on 8.4.2003 and pursuant thereto E.P.No.135 of 2004 was filed for realization of the decretal amount by sale of the properties shown in the E.P. Schedule. While so, the Revision Petitioner filed E.A.No.533 of 2005 claiming title to Item No.II of the E.P. Schedule property on the basis of a Registered Will dated 22.6.1998 executed by his mother Smt. N. Ramakka. It is claimed by him that the said property originally belonged to his deceased father by name N. Muniratnam, who expired on 15.4.1980. During his lifetime, he executed an Un-Registered Will dated 10.3.1979 in favour of his wife N. Ramakka (mother of the petitioner) and on his death the property covered by the said Will devolved on Smt. N. Ramakka. Subsequently she executed a Registered Will dated 22.6.1998 in favour of the petitioner and after her death on 16.7.2005 the petitioner acquired title to the said property and has been continuing in possession and enjoyment of the same. Pending the said claim petition - E.A.No.533 of 2005, the 1st respondent herein/decree-holder filed an application to send the Will dated 10.3.1979 executed by late N. Muniratnam to an Handwriting Expert for comparison of the signatures of the executant with that of his signatures available on a Partition Deed dated 5.3.1964. The said application was allowed and the documents were sent to a Private Hand-writing Expert who opined that the Will dated 10.3.1979 was a forged document. Thereafter, the Revision petitioner filed E.A.No.458 of 2008 with a prayer to send the very same documents to any Government Handwriting Expert for his opinion on proper comparison of the signatures on the said documents alleging that the opinion of the Private Handwriting Expert was incorrect and biased. It was also alleged that the 1st respondent herein/decree-holder had managed to get the opinion in his favour. It was also alleged that the 1st respondent herein/decree-holder had managed to get the opinion in his favour. The decree-holder/1st respondent herein filed his counter denying the allegations and the Court below after hearing both the parties by order dated 7.1.2009 dismissed E.A.No.458 of 2008. Aggrieved by the same, the present Civil Revision Petition is filed. I have heard the learned counsel for both the parties and perused the material on record. The law is well settled that the opinion expressed by the Handwriting Expert is not conclusive on the issue and it is always open to the parties to raise their objections to the findings/conclusions recorded by the Expert and it is also open to cross-examine the expert and elicit information from him. In the instant case, while disputing the Un-Registered Will, dated 10.3.1979, the decree-holder requested to send the same to an Expert for comparison of the signatures of the executant with the admitted signatures on a Partition Deed dated 5.3.1964. The said application was not opposed by the Revision petitioner and accordingly the document was sent to a Private Handwriting Expert and the opinion received was against the Revision petitioner. However, the Revision petitioner instead of filing objections to the said opinion wanted to send the very same documents to another Handwriting Expert for comparison. The learned counsel for the petitioner while placing reliance upon a decision of this Court in KORVI ROSAIAH v. MITTA SRINIVASA REDDY (2006 (3) ALT 605) contended that there is no bar as such to seek a second opinion. The Learned counsel for the petitioner has also relied upon the decisions of this Court in R. KAMESWARA RAO v. B. SURYAPRAKASA RAO ( AIR 1962 A.P. 178 (D.B.) and BOLISETTI VENKATESWARA RAO v. NADAKUDITI VENKATESWARA RAO ( 2002 (6) ALT 103 (D.B.) in support of his submission that an error is possible in forming opinion by comparison of handwriting and therefore it is essential to send the documents in question to any Government Handwriting Expert for proper comparison and true opinion. In R. KAMESWARA RAO'S case (2 supra) it was held by a Division Bench of this Court that there can certainly be cases where handwriting expert's opinion may be of assistance to the court in coming to the conclusion as to the genuineness of the disputed handwriting but the art of forming opinion by comparison of handwriting is essentially empirical in character and error is always possible, however, where there is direct and trustworthy evidence of persons who had actually seen the signing of the document by the executant it may not be necessary to refer to or rely on the expert's opinion. While referring to the said observations, another Division Bench in BOLISETTI VENKATESWARA RAO'S case (3 supra) held as under: "We are of the view that where there is credible, trustworthy and direct evidence that an executant had executed a document an expert's view need not at all be taken into consideration, but where there are serious doubts about the trustworthiness and credibility of the direct witnesses the evidence of expert assumes importance." There can be no exception to the opinion expressed in the above decisions that when there is direct evidence to prove a document the Court need not refer to and rely upon the opinion of an expert. However, in the context of the controversy involved in the present case, the observations made by the Division Benches in the above cases are not relevant. It is not the case of either of the parties that any direct evidence is available to prove the disputed Will, dated 10.3.1979. As a matter of fact, the executant of the said Will, N. Muniratnam, is no more and the decree-holder alleging that the document is not genuine, sought comparison of the signatures on the said document with the admitted signatures of the executant on a partition deed of the year 1964. The Revision petitioner neither contested the said application nor raised a plea that there was any possibility of deliberate variation of the signatures on the partition deed. In the circumstances, the question that arises for consideration is whether it is open to the Revision Petitioner to seek opinion from another expert on comparison of the signatures on the very same set of documents which were already examined by one expert. In the circumstances, the question that arises for consideration is whether it is open to the Revision Petitioner to seek opinion from another expert on comparison of the signatures on the very same set of documents which were already examined by one expert. As held by this Court in R. BHASKAR REDDY vs. CHINNI @ CHENGAL REDDY ( 1998 (3) ALD 113 ) filing of successive applications under Section 45 of the Evidence Act for the same relief is impermissible. Even where the opinion of the Expert is not favourable to a party, it is open to such party to raise his objections against the opinion which was not favourable to him and also subject the expert to cross-examination, however undertaking repeated exercise in respect of the same set of documents cannot be permitted. In KORVI ROSAIAH'S case (1 supra), having regard to the written statement filed by the defendant denying the execution of the suit promissory note, the plaintiff filed an application to send the vakalat signed by the defendant and the suit promissory note for comparison of signatures by the Expert. The report received from the Expert revealed that the signatures on the Vakalat and the promissory note were different from each other. Thereafter, the plaintiff filed another application to send the suit promissory note to an Expert for comparison of the disputed signatures with the signatures available on a loan application of the defendant made to a Primary Agricultural Co-operative Society. The said application was allowed by the trial Court and when the said order was assailed by filing a Revision Petition, this Court while upholding the order of the trial Court held that since the plaintiff suspected that the defendant had deliberately changed the pattern of his signature on the vakalat he wanted the signature of the defendant on loan application form which has nothing to do with the suit transaction to be compared with the signature on the suit promissory note and such a course would result in a valid and genuine exercise under Section 45 of the Evidence Act. Thus, it is a case where the signatures on the suit promissory note were initially compared with the signatures of the defendant on his vakalat by an Expert and subsequently the plaintiff wanted the disputed signatures on the suit promissory note to be compared with the signatures of the defendant on a different document, having entertained a doubt that the defendant had deliberately changed the pattern of his signature on the vakalat. However, the facts in the instant case are entirely different. As noticed above, this is a case where the Revision petitioner wanted comparison of the signatures on the very same set of documents which were earlier sent for opinion of the Expert to be sent for a second opinion by another Expert alleging that the decree-holder managed to get the opinion in his favour. Such a course is impermissible under law and the decision in KORVI ROSAIAH'S case (1 supra) cannot be taken as a precedent in the facts and circumstances of the present case. For the aforesaid reasons, the application made by the Revision petitioner to send the documents for the second time to another expert was rightly rejected by the Court below and the said order warrants no interference by this Court in exercise of the revisional jurisdiction under Section 115 of C.P.C. The Civil Revision Petition is devoid of any merit and the same is hereby dismissed. No costs.