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2013 DIGILAW 528 (AP)

Amruthlal Sarda v. Mangi Bai Kasat

2013-07-10

L.NARASIMHA REDDY

body2013
Judgment : The 1st respondent filed O.S.No.507 of 2008 in the Court of X Additional Senior Civil Judge (Fast Track Court), City Civil Court, Hyderabad, against the petitioner and respondents 2 to 6, for the relief of partition and separate possession of the suit schedule property. The petitioner opposed the suit by filing a written statement. One of the contentions raised by him was that their mother Janaki Bai Sarda executed a Will, marked as Ex.B3, bequeathing her property in a particular manner and that the same would have its own impact upon the partition of the properties. To prove that document, the petitioner examined one of the attesting witnesses. The other attesting witnesses said to have died. The 1st respondent disputed the genuinety of the Will. With a view to prove the document beyond any pale of doubt, the petitioner and respondents 2 to 6 filed I.A.No.398 of 2010 under Section 45 of the Evidence Act, 1872 (for short ‘the Act’) with a prayer to send the document to a forensic laboratory, for a finding about the genuinety of the thumb impression on comparison with Exs.B1 and B2, two registered documents. The application was opposed by the 1st respondent. The trial Court dismissed the I.A., through order dated 09.12.2010. Hence, this revision. Heard Sri Dinish Kumar Gilda, learned counsel for the petitioner, and Sri Bankatlal Mandani, learned counsel for the 1st respondent. Normally, an application under Section 45 of the Act is filed by a party, who doubts the genuinety of the signature on a document relied upon by the other party. In the instant case, the application is filed by the petitioner and others, who are relying upon the document. The reason appears to be that one of the attesting witnesses was not clear about some of the aspects. There is no prohibition in law for filing an application under Section 45 of the Act by a person who relies upon a document. Further, finding on such document would be helpful to the Court also. Learned counsel for the 1st respondent submits that when his client is disputing the very genuinety of Exs.B1 and B2, the question of comparison of the thumb impression on Ex.B3 with those documents does not arise. Further, finding on such document would be helpful to the Court also. Learned counsel for the 1st respondent submits that when his client is disputing the very genuinety of Exs.B1 and B2, the question of comparison of the thumb impression on Ex.B3 with those documents does not arise. In this regard, it needs to be observed that if the 1st respondent is able to demonstrate that Exs.B1 and B2 were not executed by Janaki Bai, same result would ensue in relation to Ex.B3 also. Hence, the Civil Revision Petition is allowed and the order under revision shall stand allowed. The trial Court shall take necessary steps in this regard. It is left open to the 1st respondent to raise all the contentions available to him depending upon the finding about the thumb impression on Ex.B3. There shall be no order as to costs. Miscellaneous petitions, if any, pending in this Civil Revision Petition shall stand closed.