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2025 DIGILAW 456 (AP)

Manduva Hanumantha Rao v. Manduva Srinivasa Rao

2025-03-12

TARLADA RAJASEKHAR RAO

body2025
ORDER : TARLADA RAJASEKHAR RAO, J. The petitioner herein, who is the plaintiff in O.S.No.374 of 2014 on the file of the Family-cum-VIII Additional District Judge, Prakasam at Ongole, filed suit for partition against the respondents/defendants. The petitioner/plaintiff and the 1 st respondent/ 1 st defendant are the sons of Manduva Seshaiah, born in wedlock with Venkata Subbamma. 2. The said suit was defended by the 1 st respondent-1 st defendant on the ground that there is already a partition has taken place, vide registered partition deed vide document No.1076/1997 dated 26.03.1997 and also has taken another stand that the father of the petitioner has executed a Will dated 15.10.1998 in favour of the 1 st respondent/defendant. 3. In the said suit, the petitioner-plaintiff filed I.A.No.1542 of 2024 under Section 39 of the Bharatiya Sakshya Adhiniyam, 2023 , to send the unregistered Will Ex.B5 which is said to have been executed by M.Seshaiah for expert opinion to compare the signatures of M.Seshaiah with the admitted signatures in the registered partition deed dated 26.03.1997, to disprove the said Will as fabricated. 4. The said I.A.No.1542 of 2024 was dismissed vide order dated 29.10.2024 on the ground that Ex.B1 is not contemporaneous document with that of Ex.B5 and, in the absence of any such contemporaneous document, sending the document to expert is nothing but futile exercise and, accordingly, I.A.No.1542 of 2024 filed under Section 39 of the Bharatiya Sakshya Adhiniyam, 2023 , was dismissed. 5. Assailing the said order dated 29.10.2024, the present C.R.P.No.2973 of 2024 is filed on the ground that the observation of the learned trial Court Judge is contrary to law and Ex.B.1 is dated 26.03.1997 and Ex.B.5-Will is dated 15.10.1998 and both are contemporaneous documents and the dismissing of application in I.A.No.1542 of 2024 filed to send for the expert opinion is erroneous. 6. Learned counsel appearing for the petitioner has relied on the judgment of the erstwhile common High Court in the case titled as Bande Siva Shankara Srinivasa Prasad Vs. Ravi Surya Prakash Babu and others , [ AIR 2016 Hyderabad 118 Full Bench ] and also the judgment in the case of M/s. Janachaitanya Housing Ltd., Ameerpet Vs. 6. Learned counsel appearing for the petitioner has relied on the judgment of the erstwhile common High Court in the case titled as Bande Siva Shankara Srinivasa Prasad Vs. Ravi Surya Prakash Babu and others , [ AIR 2016 Hyderabad 118 Full Bench ] and also the judgment in the case of M/s. Janachaitanya Housing Ltd., Ameerpet Vs. M/s. Divya Financiers , [ AIR 2008 A.P. 163 ] for the proposition that what is the meaning of contemporaneous and what is the measure of contemporaneity and contended that the gap between two documents is very less and the second judgment relied for the proposition that the delay cannot be a ground to reject the application to send for expert opinion, hence prayed to set aside the order and consequently prayed to direct the trial Court to send the document for expert opinion for doing substantial justice. 7. Learned counsel appearing for the 1 st respondent-1 st defendant in the suit has filed memo dated 12.12.2024 and filed Ex.B.1-registered partition deed and the deposition of P.W.1, i.e., the petitioner-plaintiff. 8. For facility, Section 39 of the Bharatiya Sakshya Adhiniyam, 2023 , is extracted hereunder: " Section 39 in Bharatiya Sakshya Adhiniyam, 2023 39. Opinions of experts. (1)When the Court has to form an opinion upon a point of foreign law or of science or art, or any other field, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or any other field, or in questions as to identity of handwriting or finger impressions are relevant facts and such persons are called experts." 9. The case of the petitioner herein is that the 1 st respondent-1 st defendant filed I.A.No.1184 of 2024 to receive the document Ex.B.5-Will at a belated stage and the same was allowed by the Court and it is the case of the petitioner-plaintiff that his father has never executed any Will and the same was forged by the 1 st respondent-1 st defendant in the suit and in order to disprove the signature on the Ex.B5-Will, it is necessary to file the present application to send for expert opinion, which would meet the ends of justice and there is no such delay on the part of the petitioner herein in filing the application, as the 1 st respondent-1 st defendant filed the said document in 2024 under Order 8 Rule 1(A)(3) of C.P.C. and the same was allowed by the trial Court. 10. As seen from Ex.B.1 registered partition deed dated 26.03.1997 and Ex.B.5-Will dated 15.10.1998, the said documents can be considered as contemporaneous documents and there is element of contemporaneity. The judgment of the Full Bench of the common High Court in Bande Siva Shankara Srinivas Prasad’s case (1 supra), the common High Court by framing an issue “What is the meaning of contemporaneous; and what is the measure of contemporaneity”, held as hereunder: "b) What is the meaning of contemporaneous; and what is the measure of contemporaneity. Comment: Contemporaneous means occurrence at same period of time. No specific measure could be assigned to the element of contemporaneity. One of the famous authors in the field of examination of documents, Ordway Hilton, in his famous book Scientific Examination of Questioned Documents, states that material written two or three years before or after the disputed writing serve as satisfactory standards and the same is enunciated in page 11 of Annexure enclosed." 11. The Division Bench of the common High Court has also held in M/s. Janachaitanya Housing Ltd., Ameerpet Vs. M/s. Divya Financiers ’s (2 supra) that “No time could be fixed for filing applications under Section 45 of the Indian Evidence Act for sending the disputed signature or writings to the handwriting expert for comparison and opinion and same shall be left open to the discretion of the Court, for exercising such discretion when exigencies so demand, depending upon the facts and circumstances of the each case.” 12. As seen from the two judgments stated supra, the trial Court has erroneously dismissed the present application filed for sending the document to expert opinion on the ground that the said document is not contemporaneous document. As seen from both the documents, there is a time gap of 1½ years and the object of sending the document for expert opinion is to compare the disputed signatures with the admitted signatures which are in contemporaneous and there should not be any chance of changing the signature intentionally. In the present case, the said two documents are contemporaneous and there is no such huge gap of 2 to 3 years and the said two documents are old documents and there is no question of any intentionally changing the signatures that it would arise. 13. The petitioner herein has also filed I.A. to receive the original registered partition deed in the place of Ex.B.1 filed by the petitioner herein, which is a certified copy. 14. In view of the aforesaid discussion, the Civil Revision Petition is allowed setting aside the order dated 29.10.2024 in I.A.No.1542 of 2024 in O.S.No.374 of 2014 on the file of the Family-cum-VIII Additional District Judge, Prakasam at Ongole, and consequently, the said I.A.No.1542 of 2024 is allowed and the trial Court is hereby directed to send the document for expert opinion. There shall be no order as to costs. As a sequel, interlocutory applications pending, if any, in this case, shall stand closed.