Research › Search › Judgment

Orissa High Court · body

2016 DIGILAW 1073 (ORI)

Gujju Saraswati @ G. Saraswati v. G. Ram Prasad

2016-11-09

A.K.RATH

body2016
JUDGMENT : A.K. Rath, J. This petition challenges the order dated 5.8.2016 passed by the learned Civil Judge (Sr. Divn.), Berhampur in C.S. No.212 of 2012. By the said order, learned trial court rejected the application of the plaintiffs under Order 26 Rule 10-A C.P.C. to send the disputed signature of their mother-G. Chandrama on the Will vide Ext.G along with her admitted signature to a handwriting expert for comparison. 2. The petitioners as plaintiffs instituted the suit for partition. Opposite party nos.1 to 3 are the principal defendants. Plaintiffs and defendant nos.1 to 3 are the daughters and sons of G. Venkateswarulu and G. Chandrama. According to the plaintiffs, some of the suit schedule properties are ancestral and other self-acquired property of their mother-G. Chandrama. After death of their mother, they requested the defendant nos.1 to 3 for partition, but the same was turned down. 3. Pursuant to issuance of summons, the defendant nos.1 to 3 entered appearance and filed written statement. The specific case of the defendant nos.1 to 3 is that G. Chandrama, their mother, had executed a Will on 1.7.2008 in their favour. 4. In course of hearing, the Will as well as the sale deed executed by their mother in favour of one Ashalata Mishra had been marked as exhibits. While the matter stood thus, the plaintiffs filed an application under Order 26 Rule 10-A C.P.C. to send the disputed signature of their mother on the Will vide Ext.G along with admitted signature appearing in the sale deed vide Ext.A to a handwriting expert for comparison. Learned trial court assigned the following reasons and rejected the petition. “Here the hearing from the side of the defendants is already closed and the suit is matured for hearing argument. The plaintiffs do not explain why they did not take step for sending the disputed signatures in exhibit G to a handwriting expert at an early stage. So as per the principle no.9 of the above cited decision, the present application at this belated stage is not desirable. Besides, then the defendants no.1 to 3 rely on the Will, the burden is on them to prove the validity, due execution, attestation of the Will and remove the suspicious circumstances surrounding the execution of the same. So as per the principle no.9 of the above cited decision, the present application at this belated stage is not desirable. Besides, then the defendants no.1 to 3 rely on the Will, the burden is on them to prove the validity, due execution, attestation of the Will and remove the suspicious circumstances surrounding the execution of the same. As per the principle no.12 of the above citation, it is the defendants no.1 to 3 who could have sought for an appointment of a commission for comparison of the disputed signatures of exhibit G at an appropriate stage. As the plaintiffs simply deny the validity of the Will, they need not prove the genuineness of the same. The principle no.12 of the above cited case makes it clear that, a party denying a signature need not take step for sending the disputed signature to a handwriting expert.” 5. Heard Mr. Pradhan, learned counsel for the petitioners and Mr. Mohanta, learned counsel for the opposite party nos.1 to 3. 6. In Laxmi Rai vs. A. Chandravati, AIR 1995 Orissa 131, a Division Bench of this Court held that even though under Section 73 of the Evidence Act a Court is competent to compare the disputed writing of a person with other writing which are admitted or proved, such comparison by the Court is with a view to appreciate properly other evidence available on record. It should however, be too hazardous for a Court to use his own eyes and merely on the basis of personal comparison decide a very vital issue between the parties centering round the handwriting or signature of a person. 7. This Court in the case of Sibaram Subudhi vs. Padmabati Patra, 2016 (I) OLR-24 held:- “12. Section 75 of the Civil Procedure Code (hereinafter referred to as “the CPC”) defines the power of Court to issue commissions. The said section was amended by Act 104 of 1976. Clauses (e) to (g) were inserted by the aforesaid amendment. The detail provisions of commissions have been set out in Order 26 of the CPC. As a consequence of the amendment made in the CPC, new Rules 10-A to 10-C have been inserted under Order 26 of the CPC. The power of the court to issue commission has been widened by virtue of the amendment made in Section 75 of the CPC. As a consequence of the amendment made in the CPC, new Rules 10-A to 10-C have been inserted under Order 26 of the CPC. The power of the court to issue commission has been widened by virtue of the amendment made in Section 75 of the CPC. Clause (e) of Section 75 of the CPC empowers the Court to issue commissions to hold a scientific, technical, or expert investigation when it is needed for determination of any issue before the court. Order 26 Rule 10-A of the CPC provides that where any question arising in a suit involves any scientific investigation which cannot, in the opinion of the Court, be conveniently conducted before the Court, the Court may, if it is necessary or expedient in the interest of justice so to do, issue a commission to such person as it thinks fit, directing him to enquire into such question and report thereon to the Court. 13. A Division Bench of this Court, in the case of Natabar Behera v. Batakrishna Das 62 (1986) CLT 613 came to hold that scientific examination means ascertainment by observation and experiment critically tested, systematized and brought under a set of principles. Comparison of a disputed signature with the admitted ones involves specialized skill based on study. It, therefore, comes within the scientific investigation and cannot be done by a lay man without having the scientific knowledge and specialisation on the subject. The handwriting experts for the purposes of comparison of the handwritings take enlarged photographs of the disputed and the admitted writings and examine the same by application of recognized principles and by critical tests which in most cases cannot be conveniently conducted before the court. In the said case, the genuineness of the signatures in the agreement having been disputed, the learned trial court issued a commission for investigation by an expert. The said order was affirmed in the aforesaid case.” 8. On the anvil of the decisions cited supra, the instant case may be examined. 9. The defendant nos.1 to 3 assert that their mother-G. Chandrama executed a Will in their favour. The plaintiffs deny the same. Accordingly, the application was made for sending the disputed signature appearing in the Will along with admitted signature on the sale deed to a handwriting expert for comparison. 9. The defendant nos.1 to 3 assert that their mother-G. Chandrama executed a Will in their favour. The plaintiffs deny the same. Accordingly, the application was made for sending the disputed signature appearing in the Will along with admitted signature on the sale deed to a handwriting expert for comparison. In such circumstances, learned trial court ought to have as a matter of prudence send the disputed documents for the opinion of the expert. 10. Before parting with the case, this Court observes that the learned trial court relied on a decision, but then neither the journal where the decision is reported nor the name of the court has been mentioned. Taking a cue from the same, learned trial court came to hold that the application was filed at a belated stage. Be it mentioned that legislature in its wisdom has not prescribed any stage for making application. Making the belated application is per se no ground to reject the same, when a case is made out. 11. In view of the same, the order dated 5.8.2016 passed by the learned Civil Judge (Sr. Divn.), Berhampur in C.S. No.212 of 2012 is quashed. Learned trial court shall send the disputed signature of G. Chandrama appearing in the Will, Ext.G along with her admitted signature to a handwriting expert. The plaintiffs shall bear the expenses. The petition is allowed.