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2025 DIGILAW 676 (AP)

Matta Padma v. Matta Venkata Rattaiah

2025-05-09

RAVI NATH TILHARI

body2025
ORDER : 1. Heard Sri Siva Prasad Reddy Venati, learned counsel for the petitioners. 2. This Civil Revision Petition under Article 227 of Constitution of India has been filed by the petitioners who are defendant Nos.6 to 8 in O.S.No.364 of 2010 pending in the Court of Principal Civil Judge (Senior Division), Machilipatnam, Krishna District filed by the plaintiff/respondent No.1 herein. 3. The said suit was filed for partition of the plaint schedule properties against the defendants/respondent Nos.2 to 10 and present petitioners. 4. In the said suit, the defendant Nos.5, 6 to 8 took a plea that the owner of the property executed Wills in their favour with regard to the plaint schedule property. Defendant Nos.5, 6 to 8 produced two different Wills said to be executed by Matta Suryanarayana with respect to the plaint schedule property and they were marked as Ex.B2 & B7 respectively. 5. The plaintiff/respondent No.1 herein filed I.A.No.858 of 2024, inter-alia submitting that Matta Suryanarayana never executed any Will. He requested to get the signature of the alleged Wills compared with the admitted signatures of Matta Suryanarayana and prayed to send the alleged signatures on the Wills Ex.B2 and B7 to compare with the admitted signatures to the expert. 6. The present petitioners along with defendant Nos.2, 10 to 12 objected I.A.No.858 of 2024 and they filed the counters. The petitioners submitted that the Will could not be sent for comparison and requested to dismiss the petition. They also filed a memo along with the judgments on which they placed reliance before the learned Trial Court. 7. The defendant Nos.3 and 9 were set ex-parte. 8. Learned Trial Court framed the following point for consideration: “Whether the petitioner is entitled to seek the Court to send the Wills Ex.B2 and B7 allegedly executed by Matta Suryanarayana for comparison by the handwriting expert with the admitted signature of Matta Suryanarayana?” 9. On consideration of the judgments on which reliance was placed, learned Trial Court came to the conclusion that the plaintiff was disputing the genuineness of both the Wills, as also signature thereon and as based on those Wills Ex.B2 & B7, the defendants were claiming the property and deciding the claim of the plaintiff, so, there being a serious dispute, it was safe to take the assistance of the handwriting expert instead of the Court itself examining the signature. Being of such an opinion it recorded that the signature of Matta Suryanarayana required examination by the expert, I.A was allowed. The petitioner therein i.e., plaintiff/respondent No.1 was directed to file other admitted and contemporaneous signatures and hand writing of Matta Suryanarayana, if any, to send to the expert for examination with the disputed signature of Ex.B2 & B7. 10. Challenging the said order dated 22.01.2025, the present Civil Revision Petition has been filed by the defendant Nos.6 to 8. 11. Learned counsel for the petitioners submitted that the learned Court ought not to have allowed I.A.No.858 of 2024 and ought not to have sent Ex.B2 & B7 - Wills for comparison of signature of Matta Suryanarayana to the hand writing expert with his admitted signature. He submitted that in the suit, the Will is to be proved, as per the provisions of Section 63(c) of the Indian SUCCESSION ACT read with Section 68 of the Indian EVIDENCE ACT . Additionally, the plaintiff has to remove the suspicious circumstances surroundings the execution of Will. He submitted that in view of the legal provisions for proof of Will the same could not be sent for expert opinion on signatures of testator. 12. I have considered the aforesaid submissions and perused the material on record. 13. So far as the contention of the learned counsel for the petitioners with respect to the proof of the Will is concerned, there can be no dispute that Will is required to be proved as per the legal provisions of Section 68 of Indian EVIDENCE ACT and Section 63 (c) of Indian SUCCESSION ACT . 14. In Shashi Kumar Banerjee v. Subodh Kumar Banerjee , AIR 1964 SC 529 the Constitution Bench, of the Hon’ble Apex Court on the point of proof of Will, referred to the cases of H. Venkata - Chala Iyengar v. B.N. Thimmajamma , AIR 1959 SC 443 and Rani Purnima Devi v. Khagendra Narayan Dev , AIR 1962 SC 567 and held that the mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Indian SUCCESSION ACT . The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court, before the Court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indication in the will to show that the testator's mind was not free. In such a case the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations. 15. However, the submission advanced is that, in view of those legal provisions on proof of Will, the signature on Will could not be sent for comparison, which cannot be accepted. The aforesaid provisions do not create a bar for comparison of signature on the Will. Simply because the mode of proof of the Will is provided by Section 63(c) of Indian SUCCESSION ACT and Section 68 of Indian EVIDENCE ACT , applicability of Section 45 of Indian EVIDENCE ACT , in respect of the comparison of signature of the Will, in the view of this Court, cannot be excluded. 16. In Shashi Kumar Banerjee (supra), the report of the expert with respect to the signature on the Will of the testator was also submitted. 16. In Shashi Kumar Banerjee (supra), the report of the expert with respect to the signature on the Will of the testator was also submitted. The Hon’ble Apex Court with respect to the report of the expert, observed and held that the evidence of the expert is not conclusive and could not falsify the evidence of the attesting witnesses as also the circumstances which went to show that the Will must have been signed in 1943 as it purported to be. The Hon’ble Apex Court held that the expert’s evidence as to handwriting is an opinion evidence and it can rarely, if ever, take the place of substantive evidence. Before acting on such evidence it was usual to see if it was corroborated either by clear direct evidence or by circumstantial evidence. As in the said case, it was found that all the probabilities were against the expert’s opinion and the direct testimony of the two attesting witnesses, which was accepted, was wholly in-consistent with expert opinion, in the circumstances of that case, it was held that mere opinion of the expert could not override the positive evidence of the attesting, witnesses. 17. So from Shashi Kumar Banerjee (supra), it is settled that the expert evidence with respect to the signature on the Will, is merely an opinion evidence, which cannot be substitute for the substantive evidence of the attesting witness. The expert report/evidence is only an opinion evidence and not conclusive. But, the opinion evidence though not binding on the Courts, may be of assistance in the light of the other evidences led in the suit, including the evidence of attestators, other witnesses and also the circumstance evidence. It may also have a corroborative value. Even in Shashi Kumar Banerjee (supra), the report of expert was not discarded on the ground that it could not be called or submitted. Besides, Section 45 of the Indian EVIDENCE ACT or any other provisions of Indian EVIDENCE ACT or of Indian SUCCESSION ACT , could not be shown creating a legal bar for comparison of disputed signature on the Will. 18. In Ram Narain v. State of Uttar Pradesh , (1973) 2 SCC 86 the Hon’ble Apex Court held that expert opinion adduced in evidence has to be received with great caution. 18. In Ram Narain v. State of Uttar Pradesh , (1973) 2 SCC 86 the Hon’ble Apex Court held that expert opinion adduced in evidence has to be received with great caution. But, this opinion evidence, is relevant, which may be worthy of acceptance, if there is internal or external evidence relating to the document in question supporting the view expressed by the expert. 19. Para No.6 in Ram Narain (supra) reads as under: “In our view, the legal position enunciated in Fakhruddin’s case (supra) cannot be said to be inconsistent with the ratio of any one of the earlier decisions to which reference has been made therein. Now it is no doubt true that the opinion of a hand-writing expert given in evidence is no less fallible than any other expert opinion adduced in evidence with the result that such evidence has to be received with great caution. But this opinion evidence, which is relevant, may be worthy of acceptance if there is internal or external evidence relating to the document in question supporting the view expressed by the expert. If after comparison of the disputed and the admitted writings by the Court itself, when the Presiding Officer is familiar with that language, it is considered safe to accept the opinion of the expert then the conclusion so arrived at cannot be assailed on special leave on the mere ground that comparison hand-writing is generally considered as hazardous and inclusive and that the opinion of the hand-writing expert has to be received with considerable caution. The question in each case falls for determination on the appreciation of evidence and unless some serious infirmity or gave failure of justice is shown, this Court would normally refrain from re-appraising the matter on appeal by special leave. the Trial Court in this case agreeing with the principle of law enunciated by this Court compared the relevant documents and arrived at the conclusion that they have all been written in one hand. The learned II Temporary Sessions Judge on appeal, after referring to the comparison of the disputed and specimen writings by the Trial Magistrate, himself compared those writings with the help of the expert's opinion and his report and came to a definite conclusion "that the disputed hand-writings tally with the specimen hand-writing". The learned II Temporary Sessions Judge on appeal, after referring to the comparison of the disputed and specimen writings by the Trial Magistrate, himself compared those writings with the help of the expert's opinion and his report and came to a definite conclusion "that the disputed hand-writings tally with the specimen hand-writing". In the High Court also the learned Single Judge, after referring to the decision in Fakhruddin casw (supra), observed as follows :- "I have myself made a comparison of the specimen writing of the applicant with the writing contained in the two letters. I have not the least doubt that the writing in the post-card and the writing in the admitted writing of the applicant are the same. Thus, I have no reason to differ from the finding recorded by the courts below." 20. In Baso Prasad v. State of Bihar , (2006) 13 SCC 65 the Hon’ble Apex Court held that opinion of an expert, is a relevant fact. The Court may, thus, take the expert opinion into consideration. But, appreciation of evidence is the Court’s job. 21. Para Nos. 37 & 38 in Baso Prasad (supra) read as under: “37. Opinion of an expert, therefore, is a relevant fact. The court may, thus, take the expert opinion into consideration. But appreciation of evidence is the court's job. 38. It is, thus, for the court to arrive at an opinion as to which part of contradictory expert opinion should be accepted or whether in a given situation ocular evidence should be believed in preference to medical evidence or vice versa.” 22. In Dayal Sing v. State of Uttaranchal , (2012) 8 SCC 263 the Hon’ble Apex Court held that the courts, normally, look at expert evidence with a greater sense of acceptability, but it is equally true that the courts are not absolutely guided by the report of the experts, especially if such reports are perfunctory, unsustainable and are the result of a deliberate attempt to misdirect the prosecution. 23. Para No.35 in Dayal Singh (supra) reads as under: “35. This brings us to an ancillary issue as to how the Court would appreciate the evidence in such cases. The possibility of some variations in the exhibits, medical and ocular evidence cannot be ruled out. But it is not that every minor variation or inconsistency would tilt the balance of justice in favour of the accused. This brings us to an ancillary issue as to how the Court would appreciate the evidence in such cases. The possibility of some variations in the exhibits, medical and ocular evidence cannot be ruled out. But it is not that every minor variation or inconsistency would tilt the balance of justice in favour of the accused. Of course, where contradictions and variations are of a serious nature, which apparently or impliedly are destructive of the substantive case sought to be proved by the prosecution, they may provide an advantage to the accused. The Courts, normally, look at expert evidence with a greater sense of acceptability, but it is equally true that the courts are not absolutely guided by the report of the experts, especially if such reports are perfunctory, unsustainable and are the result of a deliberate attempt to misdirect the prosecution . In Kamaljit Singh v. State of Punjab, (2003) 12 SCC 155 , the Court, while dealing with discrepancies between ocular and medical evidence, held: “8. It is trite law that minor variations between medical evidence and ocular evidence do not take away the primacy of the latter. Unless medical evidence in its term goes so far as to completely rule out all possibilities whatsoever of injuries taking place in the manner stated by the eyewitnesses, the testimony of the eyewitnesses cannot be thrown out”.” 24. Learned Trial Court has observed that the opinion of the expert does not bind the Court. Though the Court itself can compare the disputed signature with the admitted signature under Section 73 of the EVIDENCE ACT , but it recorded that it would be safe to take the assistance of the hand writing expert. Learned Trial Court recorded that immediately after getting the documents marked by the defendant Nos.6 to 8, the plaintiff filed an application for comparison of signature of Ex.B2 & B7 with the admitted signatures. The Court could look into the report of the expert if necessary for comparison of signature. So, the Court could sent the documents for comparison. Learned Trial Court recorded that immediately after getting the documents marked by the defendant Nos.6 to 8, the plaintiff filed an application for comparison of signature of Ex.B2 & B7 with the admitted signatures. The Court could look into the report of the expert if necessary for comparison of signature. So, the Court could sent the documents for comparison. This Court is of the view that if the learned Trial Court in its wisdom considered it appropriate that the disputed signature of the Will be sent for comparison to elicit the truth, but at the same time was also conscious of the legal provision that the report of the expert is not binding on the Court and may be only of assistance, there is no reason for this Court to interfere with the exercise of such discretion by the learned Trial Court. 25. If the petitioners feel aggrieved from the finding recorded during trial, they would have the remedy. But it is not the stage to submit that the disputed signature could not be sent for comparison with the contemporaneous signature of the testator. 26. The civil revision petition has no merit and is dismissed. 27. No order as to costs. As a sequel thereto, miscellaneous petitions, if any pending, shall also stand closed.