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2015 DIGILAW 175 (MAD)

Shanmuga Velar (Died) v. Rukmani

2015-01-12

P.R.SHIVAKUMAR

body2015
Judgment 1. The original suit O.S.No.258 of 2006 on the file of the learned District Munsif, Kangeyam was filed by the respondent herein against late Shanmuga Velar for a declaration that they were the absolute owners of the suit property and for an injunction not to interfere with their possession and enjoyment. 2. The said claim was made by the respondents based on a sale deed dated 21.05.1973 alleged to have been executed by Shanmuga Velar in favour of one Angamuthu to whom the respondents/plaintiffs trace their title. The said Shanmuga Velar, who was the sole defendant in the suit, filed a written statement denying the averment that he had executed the above said sale deed in respect of the suit property in favour of Angamuthu. Subsequently, Shanmuga Velar, who figured as the sole defendant in the suit passed away on 21.06.2007, pursuant to which his legal heirs were impleaded as defendants 2 to 5. The defendants 2 to 5 in the said suit filed an earlier application I.A.No.801 of 2010 for referring the disputed document to a handwriting expert for his opinion to be given after comparing signature found therein with the admitted signatures of Shanmuga Velar therein. The signatures found in his vakalat and the written statement were sought to be used for comparison with the signature found in the disputed document. In addition to those documents which came into existence after the filing of the suit, the petitioners also wanted to use a sale deed dated 08.05.2007 as the other document containing the admitted signature of Shanmuga Velar, which could be used for comparison with the signature found in the disputed document. Since the said documents admittedly came into existence after the filing of the suit, the said petition was resisted and the objection raised by the respondents herein was sustained by the trial Court, resulting in the dismissal of the said application I.A.No.801 of 2010 by an order dated 07.09.2010. Thereafter, on 17.10.2010, the revision petitioners filed another application I.A.No.1505 of 2010 for the very same purpose producing 5 documents, which according to them were suitable for comparison with the disputed document. Those five documents are: 1. A certified xerox copy of the registered sale deed dated 02.07.1992 under which the deceased first defendant Shanmuga Velar purchased a property; 2. Thereafter, on 17.10.2010, the revision petitioners filed another application I.A.No.1505 of 2010 for the very same purpose producing 5 documents, which according to them were suitable for comparison with the disputed document. Those five documents are: 1. A certified xerox copy of the registered sale deed dated 02.07.1992 under which the deceased first defendant Shanmuga Velar purchased a property; 2. A certified xerox copy of the registered sale deed dated 25.08.2003 under which the deceased first defendant Shanmuga Velar purchased a property; 3. A licence issued in favour of Shanmuga Velar on 27.07.1989 by the Inspector of Legal Metrology, Dharapuram; 4. A deposit receipt dated 08.05.1997 for obtaining gas connection from Indian Oil Corporation in the name of Shanmuga Velar; and 5. A Certificate issued by the Village Administrative Officer to Shanmuga Velar on 07.04.1998. 3. The learned trial Judge, at the conclusion of hearing, came to the conclusion that all those documents were unfit for being compared with the disputed document as those documents were not contemporary with the disputed document and they came into existence several years after the execution of the disputed document dated 21.05.1973. It was also observed by the learned trial Judge that signatures might have changed during the passage of more than 20 years and hence, the prayer made by the petitioners could not be granted. The petitioners have come forward with the present revision challenging the said order of the trial Court dated 27.09.2011 made in I.A.No.1505 of 2010. 4. The arguments advanced by Mr.M.Guruprasad, learned counsel for the petitioners and Mr.C.Prakasam, learned counsel appearing for the respondents are heard. The materials available on record are also perused. 5. Mr.M.Guruprasad, learned counsel for the petitioners would fairly concede that the petitioners are not pressing for the comparison of the signatures found in Document Nos.3 to 5 annexed to the petition. Similar is the submission made by the learned counsel for the petitioners in respect of Document No.1 found in the annexure to the petition, namely a certified xerox copy of the registered sale deed dated 02.07.1992 under which Shanmuga Velar purchased an immovable property, since the same does not contain the thumb impression of Shanmuga Velar, even though his signature is found as the purchaser, who presented the document for registration. However, the learned counsel for the petitioners submits that the second document, namely a certified xerox copy of the sale deed dated 25.08.2003 registered as Document No.1520 of 2003 in the office of the Sub-Registrar, Vellakoil under which Shanmuga Velar purchased another immovable property contains the signature as well as the left thumb impression of the purchaser therein, namely Shanmuga Velar and that though there might have been some changes in the signature due to the long gap of time, there is no possibility of the thumb impression being changed and that the said aspect was not considered by the trial Court while passing the impugned order dated 27.09.2011. In addition, learned counsel for the petitioners also submits that now the petitioners have also got a registered Will left by Shanmuga Velar, executed by him on 08.05.2007 and that the petitioners may also be permitted to produce the same for the purpose of using it for comparison with the disputed document. 6. Per contra, it is the contention of Mr.C.Prakasam, learned counsel for the respondents that though the respondents cannot say anything against the reliability of the certified xerox copy of the registered document bearing Document No.1520 of 2003 dated 25.08.2003 , the Will propounded by the petitioners cannot be used for comparison as there is possibility of creation of such a Will by impersonation with the intention of using it for comparison with the disputed document in an attempt to disprove the execution of the disputed document. If the said contention of the respondent is considered in isolation, that is in the absence of the sale deed dated 25.08.2003, there shall be no impediment for accepting such contention. But, since an authenticated document, namely certified copy of the registered sale deed dated 25.08.2003 bearing Document No.1520 of 2003 containing the signature as well as the left thumb impression of Shanmuga Velar has been produced, the left thumb impression found in the Will can be compared with the thumb impression found in the said sale deed dated 25.08.2003 and in case it is found that the thumb impression found therein is that of the person whose thumb impression found in the sale deed dated 25.08.2003 (against the name of the purchaser), then there would not be any impediment for using the said Will also for the purpose of comparing with the disputed document, namely the sale deed dated 21.05.1973. 7. 7. In view of the above said facts, this Court is of the considered view that the trial Court's order totally rejecting the prayer for referring the disputed document to the handwriting expert for his opinion after comparing the same at least with the admitted documents containing not only the signatures of Shanmuga Velar but also the left thumb impression of the Shanmuga Velar, cannot be sustained and that it is a fit case in which this Court has to interfere with the same. 8. In the result, the Civil Revision Petition is allowed and the order of the trial Court dated 27.09.2011 made in I.A.No.1505 of 2010 is set aside and I.A.No.1505 of 2010 shall stand allowed. The petitioners shall produce the additional document, namely registered Will dated 08.05.2007 in the trial Court within a period of two weeks from the date of receipt of a copy of this order. Thereafter, the trial Court shall send the disputed document, namely sale deed dated 21.05.1973 and admitted documents namely 1) Certified copy of the registered sale deed dated 25.08.2003 registered as Document No.1520 of 2003 in the office of the Sub-Registrar, Vellakoil and 2) Will dated 08.05.2007 to be produced by the petitioners, to the Regional Forensic Laboratory in a sealed cover through an Advocate Commissioner for the opinion of a Finger Print Expert. No costs.