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2010 DIGILAW 1449 (MAD)

V. K. Sridhar & Others v. C. R. Shankar & Others

2010-04-01

M.JEYAPAUL

body2010
Judgment :- First defendant in O.S.Nos.6924 and 7294, 6923 and 6701 of 1996 and the third defendant in O.S.No.6702 of 1996 are the revision petitioners in C.R.P. (PD) Nos.4199, 4200, 4201, 4203 and 4202 of 2009 respectively. 2. The plaintiff in the respective suits filed petitions under section 47 of the Indian Evidence Act to send the original settlement deed dated 28.12.1983 alleged to have been executed by the deceased Ramasamy Naidu through an Advocate to a handwriting expert for comparison with the admitted signatures of the deceased Ramasamy Naidu. 3. The respondents herein contended in the respective petitions filed by them that on verification of the original settlement deed dated 28.12.1983, it was found that the signature of the deceased V.M.Ramasamy Naidu differed from the admitted signature. The respondents herein filed reply statements stating that the signature in the original settlement deed was a forged one. Therefore, the respondents herein have contended in the respective petition that the disputed signatures found in the original settlement deed dated 28.12.1983 should be subjected to scrutiny of the handwriting expert for comparison. 4. The petitioners herein in the counter filed by them have contended that settlement deed dated 28.12.1983 was admitted by the respondents herein throughout the proceedings. The respondents herein also have admitted the execution of the said document during the course of evidence. The settlement was registered by the Sub Registrar, Virugambakkam. No issue was framed in the suit with respect to the genuineness or otherwise of the deed of settlement dated 28.12.1983. The petition has been filed just to prolong the litigation and also to harass the petitioner herein. An attempt is made to sidetrack the issue involved in the suit. In any event, contemporaneous documents bearing the admitted signatures alone should be compared with the disputed signature. Therefore, the petitioners herein have sought for dismissl of the respective petitions filed by the respondents herein. 5. The Trial Court, having adverted to the respective stand of the parties, thought it fit to refer the disputed document through the Advocate Commissioner for comparison with the signatures found in the admitted documents, despite the fact that the case was pending for 20 long years. 5. The Trial Court, having adverted to the respective stand of the parties, thought it fit to refer the disputed document through the Advocate Commissioner for comparison with the signatures found in the admitted documents, despite the fact that the case was pending for 20 long years. Though the court has got ample power under section 73 of the Evidence Act to compare the admitted signatures with the disputed signatures, the Trial Court found that it was not fair and reasonable to compare the signature when a technical expert is available. 6. The learned counsel appearing for the petitioners would submit that the Trial Court has not specifically adverted to the objections raised by the petitioners in the counter filed by him. The Trial Court forgot the fact that the execution of the settlement deed was admitted by the Sub Registrar, Virugambakkam. There was no pleadings challenging the signature of Ramasamy Naidu in the settlement deed. No steps were taken by the respondent to challenge the document till the settlor passed away. No issue was also framed by the court as to whether the execution of the settlement deed was a fabricated document. The Trial Court should have first compared the disputed signatures with that of the admitted signatures and having come to a prima facie decision that there was variation in the signatures, the court should have invoked the provision under section 47 to send the disputed document for comparison by a handwriting expert. At any rate, it is his submission that contemporaneous documents were not sent for comparison by the Trial Court through the Advocate Commissioner appointed by it. Therefore, he would submit that the impugned order passed by the Trial Court should be set aside. 7. The learned Senior Counsel appearing for the respondents would submit that there was no occasion for the respondents to dispute the signature of late Ramasamy Naidu inasmuch as the original settlement deed was not in possession of the respondents. The respondents have submitted their pleadings only based on the information furnished by the petitioners in the reply notice given by them. The respondents have submitted their pleadings only based on the information furnished by the petitioners in the reply notice given by them. Having perused the original sale deed and also having found that there is a variation in the signature of late Ramasamy Naidu, the respondents have rightly come out with the reply statement which is now on record and the present petitions have been filed to subject the disputed documents for comparison by a handwriting expert. It is his further submission that the Trial Court has rightly exercised its discretion to send the document for comparison though it has ample power to compare the disputed signature with the admitted signatures to arrive at its own conclusion. 8. True it is that the subject suits originated wayback in the year 1988. The present petitions have been filed before the Trial Court after a lapse of about 20 long years. The point to be considered is whether there is any laxity on the part of the respondents in filing the petitions seeking permission to send the documents to the expert for comparison. It is found that the respondents were armed only with the certified copy of sale deed executed by late Ramasamy Naidu. The certified copy was obtained by the respondents only based on the notice given by the petitioners herein bringing upon the notice of the respondents that there existed a sale deed executed by Ramasamy Naidu. Of course, it is found that the original settlement deed executed by Ramasamy Naidu was produced by the petitioners before the Trial Court in the year 2002. The fact remains that the certified copy of the settlement deed obtained by the respondents does not bear the signature of late Ramasamy Naidu. Only during the course of trial of the case, an occasion has arisen for the respondents to go through the original which is on record. Immediately thereafter, it appears that the respondents took steps to file reply statement challenging the very signature of Ramasamy Naidu in the disputed settlement deed executed. There was an earlier round of litigation with respect to the reply statement filed by the respondents herein. In the revision petition filed by the respondents herein, the reply statement filed by the respondents was allowed to be received. There was an earlier round of litigation with respect to the reply statement filed by the respondents herein. In the revision petition filed by the respondents herein, the reply statement filed by the respondents was allowed to be received. Thereupon, it appears that the respondents have filed the present petitions based on the plea they have set up in the reply statement to send the disputed signature found in the settlement deed executed by Ramasamy Naidu for comparison by a handwriting expert. Therefore, I find that there was no delay wantonly caused by the respondents in filing the subject petitions seeking to send the disputed documents for comparison. Further, I find that there was no occasion for the respondents beforeever comparing the signature of Ramasamy Naidu found in the original settlement deed to challenge his signature before the Trial Court. 9. The plea of the respondents taken through the reply statement cannot be segregated from the original plaint pleadings. The pleading of the respondents now on record is that there is some variation in the signature of late Ramasamy Naidu found in the settlement deed. Therefore, the plaintiffs are bound to establish the plea of fabrication set up by them. 10. It is true that the respondents chose not to challenge the signature of late Ramasamy Naidu till his death. Inasmuch as the original signature found in the settlement deed was not brought to the notice of the respondents, they had no occasion to challenge the signature of late Ramasamy during his lifetime. At any rate that cannot be a reason to reject the plea for sending the disputed document for comparison. 11. Issues were framed based on the original pleadings made before the Trial Court. Issues can be recast at any stage of the proceedings. Just because an issue was not framed originally by the Trial Court, the court cannot reject the plea for sending the document for comparison by a handwriting expert to arrive at a conclusion with respect to the genuineness or otherwise of the signature found in the settlement deed allegedly executed by late Ramasamy Naidu. 12. Of course, section 73 of the Indian Evidence Act, 1872 confers ample power on the courts to compare a disputed signature with that of the admitted signature to ascertain whether the disputed signature was a genuine one made by the party concerned. 12. Of course, section 73 of the Indian Evidence Act, 1872 confers ample power on the courts to compare a disputed signature with that of the admitted signature to ascertain whether the disputed signature was a genuine one made by the party concerned. Though such a power has been given under section 73 of the Indian Evidence Act to the courts, the courts should be reluctant to compare the disputed signature with that of the admitted signature as the courts are not experts in comparison of the signature. 13. The learned counsel appearing for the petitioners would submit that the Trial Court should have embarked upon the process of comparison of the disputed signature with that of the admitted signature and should have resorted to the provision under section 47 of the Indian Evidence Act in case the Trial Court encounters any difficulty in comparison of the signatures. 14. Section 47 of the Indian Evidence Act, 1872 is quite independent of the provision under section 73 of the Indian Evidence Act. Two different courses have been spoken to under section 47 and section 73 of the Indian Evidence Act, 1872. It is not as if the court should first compare the signature invoking section 73 of the Indian Evidence Act and thereafter resort to section 47 of the Indian Evidence Act, 1872. The report submitted by the expert on comparison of the disputed signature is only an opinion evidence. The court has ample power to reject the experts evidence if it comes to a decision that the opinion evidence is not found satisfactory. 15. The learned counsel appearing for the petitioners would submit that some affidavits filed by late Ramasamy Naidu have been produced before the Trial Court, but, those affidavits bearing the signature of late Ramasamy Naidu were not sent for comparison. Firstly, it is found that the signatures found in those affidavits were not admitted by the respondents herein. Only admitted signatures can be compared with that of the disputed signatures. Further, it is learnt that the settlement deed bearing the disputed signature alongwith the sale deeds bearing admitted signatures had already been despatched by the expert through the advocate commissioner. Only report is awaited now. Only admitted signatures can be compared with that of the disputed signatures. Further, it is learnt that the settlement deed bearing the disputed signature alongwith the sale deeds bearing admitted signatures had already been despatched by the expert through the advocate commissioner. Only report is awaited now. When it is not specifically admitted by the respondents that the affidavits produced by the petitioners bear the signature of late Ramasamy, it is unsafe to send the affidavits allegedly bearing the signature of Ramasamy Naidu for comparison by an expert. 16. In the considered opinion of this court, the respondents who have now challenged the very signature of late Ramasamy Naidu found in the settlement deed have to establish that the signatures have been forged. The opportunity sought for by the respondents to establish that the signatures found in the settlement deed were not that of Ramasamy Naidu will have to be given to them. 17. In view of the above facts and circumstances, the court finds that the Trial Court has rightly exercised its discretion to send the documents for comparison invoking section 47 of the Indian Evidence Act, 1872. The revision petitions merit no consideration and therefore, they stand dismissed. There is no order as to costs. The connected Miscellaneous Petitions also stand dismissed.