Andhra HC (Pre-Telangana)
G. Narayanappa vs Smt. Ganne Lakshmamma And Nine Ors. on 15 November, 2001
ORDER R. Ramanujam, J.
1. This revision petition is against the order of the Principal Senior Civil Judge, Anantapur, allowing I.A.No.179 of 2001 in O.S.No.77 of 1990.
2. The petitioner herein is the second defendant in the said suit. The 1st respondent herein is the plaintiff therein. She is no other than the mother of the petitioner-2nd defendant. She filed the said suit against her husband (1st defendant in the said suit - who is no more) sons and daughters (defendants 3 to 9), respondents3 to 9 herein, and grand-son (10th defendant), 10th respondent herein, for partition of the suit schedule property. The suit schedule property originally belonged to her deceased third son - Sri G. Raghu Ramudu. She filed the said suit for partition of that property claiming a share along with the other defendants. In that suit, the defence taken by the defendants is that late Sri Raghu Ramudu executed an unregistered will - Ex.B.3 - bequeathing the property to the late husband of the plaintiff (D.1 in the said suit) and giving life estate to the 10th defendant. The plaintiff disputed that claim.
3. The trial in the said suit had commenced and the evidence on both sides was closed. The plaintiff then filed the said I.A. under Section 151 C.P.C., read with Section 45 of the Indian Evidence Act (for short "the Act") requesting the trial Court to send Ex.B.3-Will to an hand writing expert for comparing the signature therein with the signatures in Exs.A.1 to A.10 letters, which, according to the plaintiff, were written by her deceased son- Raghu Ramudu to her another son-Rama Subbiah (D.4 in the suit), who was examined on behalf of the plaintiff as PW.3.
4. The petitioner-D.2, however, disputed the genuineness of Exs.A.1 to A.10 letters and contested the said I.A., by filing a counter. The main objection put forward by the petitioner-D.2 is that Ex.B.3-Will cannot be sent to an hand writing expert for comparison of the signature therein with the signatures in Exs.A.1 to A.10 letters since they are not proved/admitted documents containing the signatures of late Raghu Ramudu.
5. Considering the rival contentions, the trial Court came to the following conclusion and allowed the said I.A:
"Therefore, comparison of the disputed signature with another set of disputed signatures do not serve any purpose except to satisfy the parties. When the Court made enquiries with the counsel about the availability of any of the admitted signatures, both of them have represented that there are no admitted signatures of Raghuramudu on any of the documents. Normally in such a case there is no need to refer the document Ex.B.3 for comparison but however the request of the learned counsel for the petitioner/plaintiff is that in case the court believe the documents under Ex.A.1 to A.10 as genuine then the observation of the hand writing expert about his opinion over the signature available on Ex.B.3 will guide the Court for coming to just conclusion and therefore the point held accordingly in favour of the petitioner"
6. It is this order that is now challenged in this Revision Petition.
7. Sri S. Srinivas Bhatt, learned counsel for the petitioner-D.2 contends that under Section 73 of the Act the disputed signature of a person in a document can only be compared with another admitted or proved signature of that person, and only when such a proved or admitted signature is available on record, the disputed signature can be sent to an hand writing expert for comparison under Section 45 of the Act. He further submits that since in this case, no such proved or admitted documents are on record, the trial Court erred in allowing the said Interlocutory Application. The aforesaid contention is disputed by the learned counsel for the 1st respondent-plaintiff, Sri C. Hanumantha Rayadu. He submits that the trial Court has already recorded the evidence of PW.3, who spoke about the genuineness of Exs.A.1 to A.10 letters and that, therefore, the trial Court is right in sending Ex.B.3-Will to an hand writing expert for comparison of the signature therein with the signatures in Exs.A.1 to A.10.
8. In view of the importance of the question involved in this case, this Court requested Sri M.R. Srinivas, Advocate, to assist the Court in coming to correct conclusion. He has readily responded. He submitted that in view of the specific language employed in Section 73 of the Act comparison of a disputed signature or hand writing, either by the Court under Section 73 of the Act or by an expert under Section 45 of the Act, can only be made with another admitted or proved signature or writing of that person. In support of his submission, he relied upon the observations of the Supreme Court in STATE (DELHI ADMN.,) V. PALI RAM1).
9. In order to appreciate the rival contentions, it is appropriate here to refer to Sections 45 and 73 of the Act:
"Sec.45. Opinions of experts: When the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identify 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 identify of handwriting or finger impressions are relevant facts.
Such persons are called experts.
Sec.73. Comparison of signature, writing or seal with others admitted or proved:- In order to ascertain whether a signature, writing, or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.
The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.
This Section applies also, with any necessary modifications, to finger-impressions".
10. A conjoint reading of these two provisions would clearly show that in order to ascertain the genuineness of a disputed signature of a person in a particular document, the Court can only compare it with another proved or admitted signature of that person or may send the disputed signature to an expert for comparison with a proved or admitted signature. This view is fully supported by the observations of the Supreme Court in STATE (DELHI ADMN.,) (1 supra) which are as under:
"23. Just as in English Law, the Indian Evidence Act recognises two direct methods of proving the handwriting of a person:
1) By an admission of the person who wrote it,
2) By the evidence of some witness who saw it written.
These are the best methods of proof. These apart, there are three other modes of proof by opinion. They are:
(i) By the evidence of a handwriting expert. (Sec.45).
(ii) By the evidence of a witness acquainted with the handwriting of the person who is said to have written the writing in question. (Sec.47)
(iii) Opinion formed by the Court on comparison made by itself. (Sec. 73).
All these three cognate modes of proof involve a process of comparison. In mode (i), the comparison is made by the expert of the disputed writing with the admitted or proved writing of the person who is said to have written the questioned document. In (ii), the comparison takes the form of a belief which the witness entertains upon comparing the writing in question, with an exemplar formed in his mind from some previous knowledge or repetitive observance of the handwriting of the person concerned. In the case of (iii), the comparison is made by the Court with the sample writing or exemplar obtained by it from the person concerned"
11. In the case on hand, as already noted, the petitioner herein disputed the genuineness of the letters-Exs.A.1 to A.10. No doubt, PW.3, who was already examined on behalf of the 1st respondent-plaintiff, spoke about the genuineness of those letters, but the trial Court has not yet recorded its finding on that aspect i.e., whether those letters were in fact written by late Raghu Ramudu or not? Till such time, the signatures and hand writing of late Raghu Ramudu in those letters cannot be said to be proved or admitted. In this view of the matter, the impugned order cannot be sustained and it is liable to be set aside.
12. The Civil Revision Petition is, therefore, allowed. The impugned order is set aside. The matter is now remitted back to the trial Court with a direction to first record a finding on the genuineness of the letters-Exs.A.1 to A.10, as expeditiously as possible, after hearing the arguments on both sides. If the trial Court comes to a conclusion that those documents are proved to be genuine and written by late Raghu Ramudu, then it can send Ex.B.3-Will to an hand writing expert for comparison of the signature thereon with that of the signatures in Exs.A.1 to A.10. On the other hand, if the trial Court finds that Exs.A.1 to A.10 are not genuine documents, then the present application filed by the 1st respondent-Plaintiff i.e., I.A.179 of 2001, has to be dismissed. No costs.
13. Before parting with this case, this Court places on record its appreciation of the able assistance rendered by Sri M.R. Srinivas, Advocate, who readily responded to the request made by this Court.