Madras High Court
Sokkalingam vs Muthaiah on 7 November, 2012
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 07/11/2012 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA C.R.P.(PD)(MD)No.373 of 2012 and C.R.P.(PD)(MD)No.374 of 2012 and M.P(MD)No.1 of 2012 in C.R.P(PD)(MD)No.374 of 2012 C.R.P.(PD)(MD)No.373 of 2012: Sokkalingam ... Petitioner/ Petitioner/2nd Plaintiff Vs. 1.Muthaiah 2.Ramachamy 3.Sownthiram ... Respondents/ Respondents/Defendants Prayer Petition filed under Article 227 of the Constitution of India, to set aside the order dated 09.11.2011 made in Memo in I.A.No.595 of 2011 in O.S.No.108 of 2006 on the file of the learned Principal District Munsif, Manamadurai. !For Petitioner ... Mr.S.Srinivasa Raghavan ^For Respondents ... Mr.M.V.Venkateseshan for R.1 Notice returned unserved - R.2 & R.3 * * * * * C.R.P.(PD)(MD)No.374 of 2012: Sokkalingam ... Petitioner/ Petitioner/2nd Plaintiff Vs. 1.Muthaiah 2.Ramachamy 3.Sownthiram ... Respondents/ Respondents/Defendants Prayer Petition filed under Article 227 of the Constitution of India, to set aside the order dated 09.11.2011 made in Memo in I.A.No.596 of 2011 in O.S.No.108 of 2006 on the file of the learned Principal District Munsif, Manamadurai. For Petitioner ... Mr.S.Srinivasa Raghavan For Respondents ... Mr.M.V.Venkateseshan for R.1 Notice returned unserved - R.2 & R.3 * * * * * :COMMON ORDER
C.R.P(PD)(MD)No.373 of 2012 has been filed to get set aside the order dated 09.11.2011 made in Memo in I.A.No.595 of 2011 in O.S.No.108 of 2006 on the file of the learned Principal District Munsif, Manamadurai.
2. C.R.P(PD)(MD)No.374 of 2012 has been filed to get set aside the order dated 09.11.2011 made in Memo in I.A.No.596 of 2011 in O.S.No.108 of 2006 on the file of the learned Principal District Munsif, Manamadurai.
3. The parties are referred to hereunder according to their litigative status before the lower Court.
4. A summation and summarisation of the germane facts absolutely necessary for the disposal of both the Civil Revision Petitions, would run thus:
The plaintiffs, four in number filed the suit for partition as against three defendants. Up went the trial and the witnesses were examined on either side. When the matter was posted for arguments, the second plaintiff did choose to file two I.A.s, viz., I.A.No.595 of 2011 for reopening his side and I.A.No.596 of 2011 for getting the disputed left thumb impression in Ex.B.2, Will compared with that of the thumb impression found in Ex.A.17, the original mortgage deed purported to have been executed by the deceased testator during the year 1961. After hearing both sides, the lower Court dismissed both the applications, which resulted in filing of these two Civil Revision Petitions on various grounds.
5. The learned Counsel for the revision petitioner/second plaintiff, inviting the attention of this Court to the facts as found set out in the records, would pyramid his arguments which could succinctly and precisely be set out thus:
The lower Court without adhering to the procedures in ordering for taking the assistance of the hand-writing Forensic Expert in comparing the disputed thumb impression with that of the sample admitted thumb impression, dismissed the petitions warranting interference in revision. The expectation of the lower Court that unless the signature found in Ex.A.17 is accepted by the defendant, there would be no chance of relying on Ex.A.7, is a farfetched one. Normally, the defendant will bent upon disputing the documents filed on the plaintiff's side. In this case also, the defendants challenged and impugned the genuineness of Ex.A.17 which is an ancient document of more than 30 years within the meaning of Section 90 of the Indian Evidence Act. The deceased Muthupechiammal was an illiterate lady and she executed the mortgage deed in favour of a third party in the year 1961 as per Ex.A.17 and subsequently, the mortgage was discharged and that is the only authentic document available for comparison and even if that document is rejected on the ground of non-admission by the defendants, then that would lead to deprive the second plaintiff to establish that the impugned Will is forged and fabricated one.
6. Per contra, the learned Counsel for the first respondent/first defendant, denying and disputing the arguments and pleas as put forth on the side of the revision petitioner/second plaintiff, would advance his arguments, which could tersely and briefly be set out thus:
Ex.A.17 was not admitted by the defendants. In fact, the first defendant was a minor at the time of alleged emergence of Ex.A.17 and his purported signature as an attesting witness therein, cannot be pressed into service. There is no authenticity or proof that the first defendant executed Ex.A.17. As such, the lower Court in the absence of any evidence in that regard, correctly dismissed both the applications warranting no interference.
7. The burden of proof in proving Ex.B.2, Will, was on the defendant and he discharged the burden in accordance with Section 68 of the Indian Evidence Act, by examining the two attestors to it and in such a case, there is no necessity at all for taking the assistance of a Forensic Expert to verify the genuineness of the thumb impression of the testator in Ex.B.2.
8. The point for consideration is as to whether the second plaintiff was entitled to get the assistance of a Forensic Expert for getting compared the impugned left thumb impression in Ex.B.2 - the unregistered Will, with that of the left thumb impression of the testator found in Ex.A.17 - the mortgage deed executed by the testator in favour of a third party relating to the suit property?
The Point:
9. A mere running of the eye over the orders of the lower Court would demonstrate and display, connote and denote that the lower Court proceeded on the footing as though the sample document - Ex.A.17 should have been admitted by the other side. Whereas the learned Counsel for the revision petitioner/second plaintiff would submit that such expectation is neither here nor there and it cannot be expected that the opponent would admit such document.
10. At this juncture, I would like to point up and show up that Ex.A.17 - the mortgage deed emerged on 26.01.1961 and registered on 27.01.1961. The purported Will emerged on 31.03.1998. Therefore, it is quite obvious and axiomatic that Ex.A.17 could rightly be taken as an ancient document within the meaning of Section 90 of the Indian Evidence Act.
11. The learned Counsel for the revision petitioner/second plaintiff would also correctly point out that the lower Court can even be mandated to summon the Thumb Impression Register maintained by the Registrar of Documents concerned, so that, that it would add some more authenticity to Ex.A.17 and the Forensic Expert could be directed to compare the left thumb impressions as found in the Thumb Impression Register in Ex.A.17 with the disputed and impugned left thumb impression in Ex.B.2.
12. I could see considerable force in his submission as the Court can very well order for the same and after getting the report from the Forensic Expert, the matter could be adjudged on merits. As of now, I could see no reason to reject Ex.A.17 as a document for comparison purpose. There could be no hard and fast rule that the document to be taken as a sample document for comparison should be the one admitted by the other side. If no authenticity ex facie and prima facie could be attached to the comparable document, then the matter is entirely different.
13. To the risk of repetition and pleonasm, but without being tautologous, I would like to point out that Section 90 of the Indian Evidence Act, also enures to the benefit of the revision petitioner/second plaintiff so as to describe the said document as an ancient one and as of now, I could see no impediment to accept Ex.A.17 as a comparable document. Over and above that, the lower Court is also mandated to summon the Thumb Impression Register maintained by the Registrar of Documents concerned so as to enable the Forensic Expert to compare the disputed left thumb impression in Ex.B.2 with that of the left thumb impressions as found in the said Register maintained by the Registrar as well as in Ex.A.17. The point is answered accordingly.
14. In the result, both the Civil Revision Petitions are allowed as above and the orders passed by the lower Court are set aside. The lower Court shall do well to see that at the first instance, the Thumb Impression Register is summoned from the Registrar of Documents concerned and thereafter, an Advocate Commissioner shall be appointed with the following mission:
(a) To carry the relevant documents in connection with this case personally in a sealed cover;
(b) and produce the same before the Forensic Expert;
(c) leave it in his custody under his acknowledgement for as many days as the Forensic Expert may require;
(d) collect the record from the Forensic Expert on the day as may be fixed by him;
(e) bring it back and lodge it with the Court.
The Forensic Expert is directed to complete the examination in any event within a period of one week after the depositing of the same by the Advocate Commissioner with him. After getting the report, both the parties shall be given due opportunity to file objections to the report of the Advocate Commissioner, whereupon the lower Court has to decide the matter as expeditiously as possible, preferably within a period of two months therefrom.
rsb To:
The Principal District Munsif, Manamadurai.