Madras High Court
Periathal vs Gomathi on 17 September, 2018
Author: T.Ravindran
Bench: T.Ravindran
IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON :11.09.2018 PRONOUNCED ON : 17.09.2018 CORAM THE HONOURABLE MR.JUSTICE T.RAVINDRAN CRP.(PD).Nos.2506 to 2508 of 2018 1.Periathal 2.Singaravel 3.Krishnaveni 4.Sarojini Devi 5.Ramasamy ... Petitioners in all CRPs. Vs. 1.Gomathi 2.Velusamy ... Respondents in all CRPs. Prayer :- Civil Revision Petition has been filed under Article 227 of the Constitutionn of India against the fair and decretal order dated 04.04.2018 made in I.A.Nos.181, 182 & 183 of 2017 in O.S.No.70 of 2013 on the file of the Third Additional District and Sessions Judge, Tiruppur at Dharapuram. For Petitioners : Mr.N.Manokaran For Respondents : Mr.K.Sudhakar COMMON ORDER
The petitioners are the defendants.
2.The suit has been laid by the first respondent/plaintiff for partition and separate possession and permanent injunction.
3.The petitioners/defendants are contesting the suit laid by the first respondent/plaintiff, inter alia, claiming right under the Will dated 20.11.2000 executed by Kumarasamy Gounder.
4.Based on the rival contentions putforth by the respective parties in the suit, it is seen that the trial of the suit had proceeded and it is noted that the parties had adduced their evidence in support of their cases and when the matter is posted for arguments, at that state of the matter, it is seen that the first respondent/plaintiff had preferred the three interlocutory applications (i). to reopen the matter, (ii). for directing the petitioners to submit the earlier Will and settlement deeds for the comparison of signatures and (iii). for the appointment of an advocate commissioner to submit the Will in question dated 20.11.2000 for expert opinion, on the footing that inasmuch as the Will projected by the petitioners is not true and genuine and not executed by Kumarasamy Gounder as projected by the petitioners, accordingly, had come forward with the abovesaid petitions for submitting the Will in question abovestated for expert's scrutiny.
5.The abovesaid applications preferred by the first respondent/plaintiff had been resisted by the revision petitioners contending that the applications had been laid only to delay the proceeding further and the first respondent/plaintiff has not adduced sufficient cause for the entertainment of the abovesaid applications and furthermore, it is also contended that when the petitioners had propounded the Will in question, it is for them to establish the authenticity of the same as per law and in such view of the matter, prayed for the dismissal of the applications preferred by the first respondent/plaintiff.
6.The Court below entertained the abovesaid applications preferred by the first respondent/plaintiff and impugning the same, the present civil revision petitions have come to be laid.
7.It is contended by the petitioners' counsel that the Will having been propounded by them, it is on the part of the petitioners to establish the same as per law and accordingly, when the petitioners have adduced the evidence in support of their version, it is his contention that there is no need on the part of the first respondent/plaintiff to send the Will in question for expert's scrutiny and accordingly, it is stated that the applications had been laid by the first respondent/plaintiff only to protract the proceeding endlessly and the Court below, without considering the same in the right perspective, had proceeded to entertain the same and hence, according to him, the impugned orders of the Court below need reversal.
8.Furthermore, he also contended that the opinion of the expert, even if taken, would not be decisive to determine the authenticity of the Will in question and dehors the same, the Court should determine the genuineness of the Will in question based on the evidence adduced by the revision petitioners, in particular, as they had propounded the Will in question and when the duty is cast upon the revision petitioners to establish the genuineness of the Will as per requirements of law and the legal position being above, according to him, no purpose would be achieved by subjecting the Will in question by an expert.
9.In this connection, he placed reliance upon the decision reported in 1988 (2) Ker L.J. 512 (R.Saraswathy Vs.Bhavathy Ammal & another). Accordingly, on a perusal of the abovesaid decision, as outlined therein, the opinion of the expert as to the identity of the signature of the testator in the Will is not relevant and the position of law on the aboveaspects had been detailed in the abovesaid authority as follows:
Evidence Act, 1872, Sections 45, 68, 69,70 and 71 Will Execution Expert opinion Opinion of an expert as to the identity of signature of the testator inn the Will is not relevant. 7. It is in this backdrop the question whether the opinion of an expert as to the identity of the signature of the testator in the will is relevant to decide the issue, whether the will in dispute has validiy been executed. When would the opinion of an expert be relevant, is stated in Section 45 of the Evidence Act. It provides that when the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to the identity of handwriting or finger-impressions, the opinions upon that point, of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger-impressions are relevant facts. The expert must necessarily be one who has acquired certain special knowledge, skill or experience in any science or art or profession. The opinion of an expert therefore is not relevant where the subject-matter of enquiry is not one pertaining to any of the matters enumerated under the sect ion. In other words an expert witness may not be asked to state his opinion upon a question of fact which is the very issue that requires decision on other evidence, the production whereof is controlled by the other provisions of the Evidence Act. For instance an expert cannot be allowed to give his opinion upon the construction of documents because this, being a matter of law, is a question solely for the court to decide. Concisely stated :
"It is only where the matter inquired of lies within the range of the peculiar skill and experience of the witness, and is one of which the ordinary knowledge and experience of mankind does not enable them to see, what inference should be drawn from the facts, that the witness may supply opinion as a guide".
Kennedy v. People, 39 NY 245 That means, the opinion of experts is not admissible in regard to matters upon which the court can form a judgment from other evidence and circumstances.
8. In regard to the execution of a will, the Court has to form a judgment from the evidence, the propounder may let in following the procedure prescribed under Sections 68. 69 and 71 of the Evidence Act. Even at the risk of repetition I would in this context refer to Section 63(a), according to which the first stage in the execution of the will can be accomplished by signing the will by adopting any one of the three methods namely, (1) the testator putting his signature, (2) the testator putting his mark or some other person putting his signature in the presence of the testator and under his direction. That means in order to say that a will has validly been executed it is not necessary that it should contain the signature of the testator; but on the other hand it is enough if the testator affixes his mark or some other person signs the document in the presence of the testator and under his direction. And therefore, in a case where the expert opines that the signature seen on the will is not that of the testator but at the same time the execution has validly been proved, can the Court still hold that the will is not valid relying on the opinion of the expert in preference to the uncontroverted evidence proving the execution of the will? My answer is no, because as already noted, under law to hold that a will is valid, it is the execution of the will within the meaning of Section 63, Succession Act that is required to be proved unlike in the case of an ordinary document where under Section 67, Evidence Act the signature should be proved. It may in this context be relevant to note that a propounder can possibly contend that the signature which is opined to be not that of the testator by the expert, in fact is not his signature but only a mark put by him within the meaning of Section 63(a), Succession Act. The Court therefore has no need to form an opinion on the question as to identity of the signature of the testator. This being the position in law, in my judgment, the opinion of the expert as to the identity of the signature of the testator in a will is not a relevant fact.
9. The learned counsel for the petitioner however, argues that the opinion of the expert may be relevant at least, to test the veracity of the testimony of the attestors. What the attestors are expected to speak under Section 68, Evidence Act is only the factum of execution of the will within the meaning of Section 63, Succession Act. They are not obliged under law to testify the identity of the signature of the testator. There is therefore no substance in this argument and hence rejected.
10.In the light of the abovesaid factors, when the revision petitioners being the probounders of the Will owe the duty to establish the genuineness of the Will in question as per the requirements of law as provided under Sections 63 of the Indian Succession Act and 68 to 71 of the Indian Evidence Act, it is found that the opinion of the expert as such may not tilt the scales in arriving at that conclusion as to the authenticity of the Will in question. The same could only be firmly adjudicated based upon the evidence to be adduced by the revision petitioners as per the requirements of law. In such view of the matter, it is found that as rightly argued by the petitioners' counsel, the endeavour of the first respondent/plaintiff in subjecting the Will in question for expert's scrutiny may not loom large in determining the issues involved between the parties as regards the proof of the Will in question.
11.The petitioners' counsel further contended that the petitioners being probounders the Will, it is only they who would be required as per law to establish the authenticity of the same and in such view of the matter, the Court below had failed to take into consideration the abovesaid legal aspects in the right perspective and however, proceeded to entertain the request of the first respondent/plaintiff as if the expert's scrutiny of the Will in question would be essential for determining the genuineness of the Will in question. In this connection, he also placed reliance upon the decision reported in (2008) 4 Supreme Court Cases 530 (Thiruvengadam Pillai Vs. Navaneethammal and Another).
12.The counsel for the first respondent/plaintiff, who has entered appearance by way of caveat contended that the Will projected by the petitioners is being disputed by the first respondent/plaintiff and accordingly, in order to adjudicate the issues revolving around the same, according to him, the first respondent/plaintiff had been necessitated to lay the petitions for subjecting the Will for expert's scrutiny and in this connection, he would also contended that an earlier application had also been levied by the first respondent/plaintiff in I.A.No.53 of 2013, however, the same could not be prosecuted and withdrawn subsequently. Therefore, it is his contention that from the inception, the first respondent /plaintiff had been contesting the genuineness of the Will in question and in such view of the matter, there is no delay on the part of the first respondent/plaintiff in filing the applications involved in the matter and therefore, according to him, the Court below is right in entertaining the applications preferred by the first respondent/plaintiff and no interference is called for with reference to the same.
13.As rightly putforth by the petitioners' counsel, the petitioners being propounders of the Will, they are bound to establish the authenticity of the same as per the requirements of law. Accordingly, it is found that as putforth by the petitioners' counsel, when they had also examined certain witnesses in support of the Will in question and it is also stated that the said witnesses had been subjected to lengthy cross examination by the first respondent/plaintiff, it is seen that after the closure of the evidence of both the parties, at that point of time, the present applications have come to be laid by the first respondent/plaintiff before the Court below. The only reason projected by the first respondent /plaintiff for entertaining the abvoesaid applications is that the Will in question is a forged document and accordingly, the same needs to be scrutinised by an expert for arriving at the truth of the same. However, when only the petitioners are required to establish the authenticity of the Will in question and accordingly, the petitioners have also chosen to examine the relevant witnesses with reference to the same on their side, it does not stand to reason as to why the first respondent /plaintiff is endeavouring to subject the Will in question for expert's scrutiny. Furthermore, no proper reason has been adduced by the first respondent/plaintiff as to why the abovesaid endeavour had not been made by him at the earliest point of time i.e. before the commencement of the trial. Though it is stated that an application had been preferred at the earliest point of time with reference to the same, however, it is seen that the said application had not been prosecuted properly. On that premise, it is found that the parties had proceeded with the trial and when the evidence of the parties had come to be recorded and the matter had reached the stage of arguments, at that point of time, to come forward with the applications for subjecting the Will in question by an expert, in my considered opinion, is nothing but a ruse to delay the proceeding further.
14.Furthermore, when as contended by the petitioners' counsel, even assuming for the sake of arguments that the Will in question is subjected to expert's scrutiny, the opinion of the expert would not be going to tilt the scales in favour of either of the parties as regards the genuineness of the Will in question and still, the petitioners being the propounders of the Will, would be required to establish the authenticity of the same as per requisites of law by adducing the relevant evidence pointing to the same, in such view of the matter, it is seen that the applications preferred by the first respondent/plaintiff would not serve the required purpose.
15.In addition to that, the argument has been put forth by the petitioners' counsel that the Court below, without going into merits and demerits of the contentions as projected by the parties and also without considering the stage at which the applications had come to be preferred by the first respondent/plaintiff and on that basis alone, it is his contention that the impugned orders passed by the Court below sans assigning any reason in allowing the same, are liable to be set aside and on the abovesaid ground alone, it is his contention that the civil revision petitions should be entertained.
16.The above arguments putforth by the petitioners' counsel seem acceptable. No reason whatsoever has been given by the Court below for entertaining the abovesaid applications. On a reading of fair order of the Court below passed in the abovesaid applications, it is found that after culling out the contentions putforth by the first respondent/plaintiff's counsel and the petitioners' counsel, the Court below would proceed that considering the plea put forth by the first respondent/plaintiff in the plaint questioning the genuineness of the Will in question, on that premise, proceeded to hold that the expert's opinion would be essential to prove truth of the Will in question. However, as to why the first respondent/plaintiff had not endeavoured to come forward with such applications at the earliest point of time, no discussion at all has been made by the Court below. Further more, when the petitioners are required to establish the proof of the Will, they being the probounders of the same, the Court without adverting to the abovesaid aspects of the matter, on the premise that the first respondent/plaintiff had questioned the truth of the Will in question, held that the abovesaid applications are entitled for acceptance. However, when the request of the first respondent/plaintiff to subject the Will in question for expert's scrutiny is being resisted by the petitioners on various grounds including the ground of delay as well as no purpose would be served in subjecting the Will in question for expert's study, the Court below without adverting to any of the abovesaid points and in particular, without assigning any reason whatsoever, is found to have entertained the applications. On that ground alone, in my considered opinion, also as putforth by the petitioners' counsel, the impugned order passed by the Courts below is liable to be reversed.
17.Considering the facts and circumstances of the case, the expert's opinion of the testators' signature in the impugned Will not being the crucial factor for determining the truth of the same and dehors the same, when the petitioners would be required to establish the authenticity of the same as per the requirement of law as provided under Section 63 of the Indian Succession Act and Sections 68 to 71 of the Indian Evidence Act by examining the concerned witnesses, who are associated with the Will in question, in such view of the matter, the Court below, without adverting to any of the aspects of the issues involved with reference to the same and also without considering the delay aspect of the applications preferred by the first respondent/plaintiff and furthermore, without assigning any reason whatsoever having endeavoured to entertain the applications preferred by the first respondent/plaintiff, in my considered opinion, the impugned orders passed by the Court below cannot be allowed to sustain any further and accordingly, the same are liable to be set aside.
For the reasons aforestated, the fair and decreetal orders dated 04.04.2018 passed in I.A.Nos.181, 182 & 183 of 2017 in O.S.No.70 of 2013 on the file of the Third Additional District and Sessions Court, Tiruppur at Dharapuram, are set aside and accordingly, the Civil Revision Petitions are allowed. No costs. Consequently, connected miscellaneous petition, if any, is closed.
Index : Yes / No
Internet : Yes / No
sms 17.09.2018
To
1.The Third Additional District and Sessions Judge,
Tiruppur, Dharapuram.
T.RAVINDRAN, J.
sms
Pre-Delivery Judgment made
in
CRP.(PD).Nos.2506 to 2508 of 2018
17.09.2018