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2014 DIGILAW 425 (KAR)

B. SRINIVASAN v. PADMAVATHAMMA

2014-04-01

N.KUMAR

body2014
Order These are plaintiffs’ writ petitions challenging the order passed by the Trial Court rejecting their request to direct the Court Commissioner to compare the disputed signature with the signature found in the register maintained by the Sub-Registrar which is said to have been obtained at the time of execution of the general power of attorney by the testator. 2. The plaintiff-petitioners have filed a suit for partition and separate possession of their 1/6th share in the 2nd suit schedule property. The defendant has filed a detailed written statement, denying the allegations in the plaint. She specifically contends that, on 14.12.1966 Sri. M. Srivinasa Shetty partitioned all the properties between himself, his wife and daughters under a registered partition deed dated 14.12.1966. The properties allotted to the share of Srinivasa Shetty came to be bequeathed by him in favour of the 1st defendant under a Will dated 8.4.1979. After the demise of M. Srinivasa Shetty on 10.9.1984, khata of the suit 1st schedule property was changed to the name of the defendant. Therefore, the defendants want the suit of the plaintiffs to be dismissed. 3. The plaintiffs are disputing the Will set up by the defendants. When the matter was posted for arguments, the plaintiffs wanted the signature on the registered partition deed to be compared with the disputed signature on the Will set up by the 2nd defendant. They filed IA.10 under Order XXVI Rule 10 CPC for referring the admitted signature with the disputed signature to a handwriting expert for comparison; and the said application was allowed. 4. The handwriting expert appointed as Court Commissioner in the matter, on comparison of the signatures, has submitted the report that since there is a time gap of more than twelve years between Partition Deed Ex.D1 dated 14.12.1966 and the disputed Will dated 08.04.1979 he needs admitted signatures of M. Srinivasa Shetty on some document executed approximately during the same period as execution of Ex.D2. 5. On such report being submitted, the plaintiffs filed IA.12 requesting the Court to send the signature and thumb impression register maintained in the office of the Sub-Registrar, Sringeri to the handwriting expert for comparison. The said application was opposed by the 2nd defendant, denying the signature found in the register maintained by the Sub-Registrar which is said to have been obtained at the time of alleged execution of General Power of Attorney in Sringeri. 6. The said application was opposed by the 2nd defendant, denying the signature found in the register maintained by the Sub-Registrar which is said to have been obtained at the time of alleged execution of General Power of Attorney in Sringeri. 6. The Trial Court, after hearing the parties, rejected the request of the plaintiffs on the ground that the comparison shall be between admitted and disputed signatures. Since the 2nd defendant is denying the signature and thumb impression in the Register maintained by Sub-Registrar office, Sringeri, the same cannot be sent to the handwriting expert for comparison. However, the trial court directed the Court Commissioner to compare the signature as at Exs.D1(a) and D1(b) and submit his report. Aggrieved by the said order, the present writ petitions are filed. 7. The learned counsel for the petitioners submitted that the testator Srinivasa Shetty had executed a general power of attorney in favour of B.S. Srinagesh, the 2nd plaintiff and the same is duly registered. At the time of registration, Srinivasa Shetty had affixed his signature in the register maintained by the Sub-Registrar and that being the case the handwriting expert may be directed to compare the disputed signature with the said signature to find out the truth. 8. Per contra, the learned counsel for the 2nd defendant submits that the comparison could be only with the admitted signature or proved signature. The signature in the register now sought to be summoned is neither proved nor admitted and Section 73 of the Indian Evidence Act has no application. The impugned order passed by the trial Court is in accordance with law and no case for interference is made out. 9. In the light of the aforesaid facts and rival contentions, the point that arises for my consideration in these writ petitions is as under: “Which signature can be compared with the disputed signature by a handwriting expert U/s 73 of the Indian Evidence Act, 1872?” 10. 9. In the light of the aforesaid facts and rival contentions, the point that arises for my consideration in these writ petitions is as under: “Which signature can be compared with the disputed signature by a handwriting expert U/s 73 of the Indian Evidence Act, 1872?” 10. Section 73 of the Indian Evidence Act reads as under: “73.Comparison of signature, writing or seal with others admitted or proved: In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose. The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.” 11. A reading of the aforesaid provision makes it clear that, in order to ascertain whether the signature or writing of the person who is said to have written the disputed document, the same can be compared with the admitted signature or writing proved to the satisfaction of the Court, to have been written or made by that person. Therefore, the condition precedent for application of Section 73 of the Indian Evidence Act is, there must be a signature or writing which is admitted or proved to be of that person whose signature or writing is disputed in the case. The genuineness of the document with which comparison is to be made must be satisfactorily established. The handwriting used as a standard must be established by clear and undoubted evidence. Strict proof of its genuineness is required in order that no reasonable doubt shall remain. Both the disputed and the genuine writings must be produced in Court. The comparison is to be made with the genuine writing itself. The handwriting used as a standard must be established by clear and undoubted evidence. Strict proof of its genuineness is required in order that no reasonable doubt shall remain. Both the disputed and the genuine writings must be produced in Court. The comparison is to be made with the genuine writing itself. Section 73 does not sanction the comparison of any two documents, but requires that the writing with which the comparison is to be made, or the standard writing with which the comparison is to be made, or the standard writing as it may be called, shall be admitted or proved to have been written by the person to whom it is attributed. If the signature or writing with which the disputed signature has to be compared, is not an admitted signature or is not a signature proved to the satisfaction of the Court to be the signature of that person, then there cannot be any comparison. 12. In the instant case, the power of attorney on which reliance is placed by the plaintiffs is not admitted by the 2nd defendant. The original general power of attorney is not before the Court. At the time of registration of a document before the Sub-Registrar, the signature and thumb impression of the person executing the document would be taken and the same is sought to be summoned before this Court. The plaintiffs want the disputed signature be compared with the signature found in the register maintained by the Sub-Registrar. When the 2nd defendant has neither admitted the execution of the general power of attorney nor signature in the register maintained by the Sub-Registrar, Sringeri, disputed signature cannot be compared with that signature. Therefore, the trial Court was justified in rejecting the said request. In that view of the matter, I do not find any merit in these writ petitions. 13. In the result I pass the following Order The writ petitions are dismissed. In view of the dismissal of the writ petitions, IA.1/14 filed for early hearing does not survive for consideration and it is accordingly dismissed.