Andhra Pradesh High Court - Amravati
Yarra Siva Prasad vs Sakshi Sri Vijaya Lakshmi Kumari on 17 October, 2022
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR CIVIL REVISION PETITION Nos.4430, 4437 and 4438 of 2018 COMMON ORDER:
In O.S.No.156 of 2012, three interlocutory applications were filed by the plaintiffs and after due contest and hearing, they were disposed of by different orders and the learned trial Court allowed all the three applications. Respondents therein, who were defendants in the suit, are aggrieved of them and filed these three revision petitions. C.R.P.No.4430 of 2018 questions the correctness of order dated 09.07.2018 of learned Principal Senior Civil Judge at Machhilipatnam in I.A.No.400 of 2018 in O.S.No.156 of 2012. C.R.P.No.4437 of 2018 questions the correctness of order dated 09.07.2018 of learned Principal Senior Civil Judge at Machhilipatnam in I.A.No.398 of 2018 in O.S.No.156 of 2012. C.R.P.No.4438 of 2018 questions the correctness of order dated 09.07.2018 of learned Principal Senior Civil Judge at Machhilipatnam in I.A.No.399 of 2018 in O.S.No.156 of 2012. Since all these matters are connected to one another and they arose out of the same litigation, it is appropriate to dispose of all the three revisions together and therefore, this common order.
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2. O.S.No.156 of 2012 is a suit filed for partition of immovable properties situated in Machilipatnam of Krishna District and the plaint schedule indicates three items. There are two plaintiffs and two defendants in that suit. All of them are siblings. That is a suit filed by sisters as against their own brothers. In the plaint, it is alleged that Sri Y.Pandu Ranga Rao and Smt. Nancharamma were the parents to the parties. Item No.1 was acquired by their father and rest of the items were acquired by their father during subsequent periods. Their claim in the suit is that all those properties are joint family properties since the father and mother of the parties died. Allegations are made against the brothers about misuse of funds and failure to divide the properties. On such allegations, the suit was laid seeking division of the immovable properties into four parts and grant one part to each of the parties to the suit.
3. Resisting the suit, the brothers filed their written statement wherein it was averred that item Nos.2 and 3 of the plaint schedule are the self-acquired properties of defendant No.1. Item No.1 of the plaint schedule was given as a bequest to defendant No.2 by their father under an unregistered Will 3 Dr. VRKS, J C.R.P.Nos.4430 of 2018 and batch dated 01.07.1985. The entire averments in the plaint were traversed and finally they sought for dismissal of the suit.
4. Issues in the suit were settled, trial commenced and it seems three witnesses were examined on plaintiffs' side and five witnesses were examined on defendants' side. It was thereafter the plaintiffs had come up with the three interlocutory applications. I.A.No.400 of 2018 in O.S.No.156 of 2012 was filed under Section 45 of the Indian Evidence Act read with Section 151 C.P.C. The prayer in the said petition is extracted here:
"For the reasons stated in accompanying affidavit the petitioners/plaintiffs therefore humbly prays that the Hon'ble court may be pleased to send the disputed thumb impression on Ex.B2 will along with contemplated thumb impression produced by the Sub-Registrar Office, Machilipatnam for finger print expert for comparison and enable the petitioners/plaintiffs to prove their case, as if they have strong prima facie case in the interest of justice."
I.A.No.398 of 2018 in O.S.No.156 of 2012 was filed under Section 151 C.P.C. The prayer in the said petition is extracted here:
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Dr. VRKS, J C.R.P.Nos.4430 of 2018 and batch "For the reasons stated in accompanying affidavit the petitioners/plaintiffs therefore humbly prays that the Hon'ble Court may be pleased to reopen the above matter only for the purpose of examine the Sub-Registrar, Machilipatnam to cause production of thumb impression book dated 05.01.1976 pertaining to Document No.11/1976 book No.1 volume No.1222 pages 150 to 153 before the Hon'ble court and to give evidence and to examine prop; Bandar Kalyani Press, Machilipatnam to ascertain who was owner of plaint schedule during their tenancy and enable the petitioners/plaintiffs to prove their case, as if they have strong prima facie case in the interest of justice."
I.A.No.399 of 2018 in O.S.No.156 of 2012 was filed under Order XVI Rule 9 read with Section 151 C.P.C. The prayer in the said petition is extracted here:
"For the reasons stated in accompanying affidavit the petitioners/plaintiffs therefore humbly prays that the Hon'ble court may be pleased to direct the Sub-Registrar, Machilipatnam to cause production of thumb impression book dated 05.01.1976 before the Hon'ble court for the purpose of send the same to finger print expert along with Ex.B2 will for comparison and enable the petitioners/plaintiffs to prove their case, as if they have strong prima facie case in the interest of justice."
5. In the sworn affidavits, the petitioners stated about their need for the relief prayed in the said petitions stating that the 5 Dr. VRKS, J C.R.P.Nos.4430 of 2018 and batch disputed Will was marked as Ex.B.2 and the recitals in it were not supported by any of the witnesses and narrating the other reasons they prayed the trial Court to grant the prayers. The defendants/respondents filed their counters and contended that at a belated stage these petitions were filed and the thumb impression register and the gift deed etc., are mentioned in the petitions were well within the knowledge of the plaintiffs even by the time of filing of the suit. It is then stated that earlier these plaintiffs filed I.A.No.1024 of 2016 seeking permission of the Court to receive registered gift deed dated 05.01.1976 and the trial Court dismissed that on merits and that order became final. Therefore, in the present proceedings they cannot ask for summoning of thumb impression register, which contained the alleged thumb impression of the executant of the gift deed, which was very much there on the registered gift deed mentioned earlier. It is with these contentions, they resisted the prayers.
6. Learned trial Court, on considering submissions on both sides and after extracting principles from the precedents, held that the prayers were justified and one more opportunity need 6 Dr. VRKS, J C.R.P.Nos.4430 of 2018 and batch be granted to the plaintiffs and therefore, it allowed all those applications.
7. In these revisions filed by the defendants, the impugned orders are challenged and the contentions raised are that dismissal of I.A.No.1024 of 2016 by the trial Court is a fact that was failed to be considered by the trial Court and had it considered it, it would not have allowed the applications. That at the fag end of the trial, these petitions are filed only to protract the litigation and no useful purpose would be served since the burden to establish the genuineness of Ex.B.2-Will is on these revision petitioners/defendants and everyone connected to the Will were already examined and in the light of the direct evidence available, no purpose would be served by considering the prayers of the plaintiffs in the suit, who are the respondents in the revisions. It is stated that opinion of a scientific expert is a mere opinion and that cannot be taken as proof of a fact. Learned trial Court failed to consider the precedent cited by revision petitioners and wrongly reached to the conclusions. On these grounds, they seek to upset the impugned orders.
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8. As against that, learned counsel for the respondents/plaintiffs submitted arguments in support of the impugned orders.
9. Having heard the learned counsel on both sides and having perused the record, the question that falls for consideration is:
"Whether the impugned orders are illegal or irregular and have they caused prejudice to the cause of the revision petitioners requiring interference?"
10. Point:
In the earlier paragraphs, the rival contentions in the suit are recorded. The suit is one for partition of property while the plaintiffs contended that the plaint schedule properties belonged to joint family and they are available for partition, they seem to state that the law of succession operated and therefore, the properties devolved from father to the children, which include daughters and sons. As against that, the defendants contended that two out of three items are not available for partition since they did not belong to the family and the first item of the suit was bequeathed under an unregistered Will executed by their 8 Dr. VRKS, J C.R.P.Nos.4430 of 2018 and batch father. At the trial, the plaintiffs questioned the correctness of the Will propounded by the defendants. Thus, in the suit the Will, which was marked as Ex.B.2, was a focal point. While it is true that one who propounds the Will has the burden to prove, the law concerning Wills amply demonstrate that it is not the mere proof of execution of Will that would be sufficient and the Court, which was trying the matter, has to gain its full satisfaction that the Will is not shrouded in suspicious circumstances and the testator had the real intent to execute such Will and the Will propounded is the last testament of the deceased. Endowed with such duty, the trial Court in the case at hand exercised its discretion and granted reopening of the evidence and summoning of certain documents and witnesses and forwarding the disputed Will for scientific examination by an expert on thumb impressions. Thus, the thumb impression of the executant on the Will is one aspect of the matter that fell for controversy. Since the learned trial Court, on consideration of the contentions in the suit and the applications, took the decision, the interference of the revisional Court does not arise unless the revision petitioners are capable of showing any 9 Dr. VRKS, J C.R.P.Nos.4430 of 2018 and batch perversity in those orders or any prejudice to the revision petitioners.
11. Learned counsel for revision petitioners cited a judgment in Bolisetti Venkateswara Rao v. Nadakuditi Venkateswara Rao1. That was a suit concerning specific performance of an agreement for sale. A Division Bench of this Court had an occasion to say about Section 45 of the Indian Evidence Act and opinion of handwriting expert. In the context of the facts available there, this Court had stated that where there is credible, trustworthy and direct evidence that an executant had executed a document, an expert's view need not at all be taken into consideration, but where there are serious doubts about the trustworthiness and credibility of the direct witnesses the evidence of expert assumes importance. In the case at hand, before this Court, the evidence led by parties is not placed. Moreover, it may not be right now to consider the evidence on record so as to take a view whether the evidence led by defendants/revision petitioners concerning Will could be said to be trustworthy or not. The fact remains that even according to 1 2002 (6) ALT 103 D.B. (AP) 10 Dr. VRKS, J C.R.P.Nos.4430 of 2018 and batch the said ruling, collecting opinion of an expert is always helpful and the utility of it and the acceptance of it is always depending on the nature of the direct evidence that was made available to the trial judge. Therefore, the contention of the learned counsel for revision petitioners that an opinion of an expert cannot clinch the issue may be correct, but utility of expert's opinion cannot be discounted since its appreciation is on the anvil of rest of the evidence. Testing the quality of the evidence, a final decision shall be taken by the trial Court at the appropriate stage. It is perhaps for that reason, the trial Court thought of granting an opportunity to the plaintiffs so that the opinion of the expert once gathered would be of help for trial Court to evaluate the quality of the evidence. Thus, there was nothing unreasonable on part of the trial Court in passing the impugned orders.
12. One of the contentions raised in these revisons is about belated stage of filing the petitions. In response to it, learned counsel for respondents cited a judgment in Janachaitanya Housing Ltd. v. Divya Financiers2. That was a reference 2 AIR 2008 AP 163 11 Dr. VRKS, J C.R.P.Nos.4430 of 2018 and batch answered by a Division Bench of this Court. The question raised therein was whether an application under Section 45 of the Indian Evidence Act seeking for opinion of handwriting expert could be entertained at the advanced stages of trial including the stage of arguments in the suit. The reference was answered saying that no time could be fixed for filing applications under Section 45 of the Indian Evidence Act for sending the documents with a view to obtaining the opinion of the handwriting expert. This Court also stated that it was always open to the discretion of the trial Court in taking up that exercise. This ruling precisely answers the criticism raised by the revision petitioners about the stage of the suit at which the applications were filed by the plaintiffs.
13. In the above cited ruling at para No.2, this Court had stated that as against the orders of Section 45 of the Indian Evidence Act, petitions seeking opinion of experts, no revision shall lie under Article 227 of the Constitution of India. It was so stated on the basis of the reasoning that the opinion of an expert is a mere opinion evidence and it is up to the trial Court either to consider the evidence of the expert or not. Therefore, one could not say that the orders passed on such applications 12 Dr. VRKS, J C.R.P.Nos.4430 of 2018 and batch could be called as orders that resulted in any manifest injustice to any of the parties. Viewed in that angle, in the facts and circumstances of these revision petitons, one should say that the present revisions cannot be maintained as against the trial Court's inclination to call for expert's opinion especially those orders are not unreasonable or causing any injustice to any party. The decision of the trial Court to have some more evidence on record can never be substituted in the revision by this Court. Since the principle application is for opinion of thumb impression expert, the other two applications are really consequential in nature filed only to materialize the main prayer for expert's opinion. This Court having considered the entire material and the rival submissions should state that the impugned orders cannot be found fault with.
14. It is undisputed that there is one registered gift deed dated 05.01.1976 said to have contained the thumb impression of the father of the parties. For one reason or the other reason, the plaintiffs wanted to have it on record and sought permission and filed I.A.No.1024 of 2016 but the trial Court negatived that contention and refused to receive that document. It is also undisputed that the said order became final. In the light of 13 Dr. VRKS, J C.R.P.Nos.4430 of 2018 and batch those facts, the revision petitioners contend that the order operate as res judicata and the thumb impression register from the Sub-Registrar could not be called in since that register would contain the thumb impression of their father, which was also there on the gift deed dated 05.01.1976. In other words, they contend that refusal to receive the registered gift deed prevents the trial Court from receiving thumb impression register from Sub-Registrar. This is a farfetched argument. What was sought to be summoned from the Sub-Registrar was never the subject matter of the dispute in that earlier interlocutory applications before the trial Court. The impugned orders have not now called for the registered gift deed lying in the hands of the parties. Therefore, the argument raised based on res judicata are without merit. For all the above said reasons, this Court finds no illegality or irregularity in the impugned orders and allowing the impugned orders to stand do not cause miscarriage of justice and do not cause any prejudice to parties at the trial. Point is answered against the revision petitioners.
15. In the result, the Civil Revision Petitions are dismissed confirming the orders dated 09.07.2018 of learned Principal 14 Dr. VRKS, J C.R.P.Nos.4430 of 2018 and batch Senior Civil Judge at Machhilipatnam in I.A.Nos.400, 398 and 399 of 2018 in O.S.No.156 of 2012. There shall be no order as to costs.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 17.10.2022 Ivd 15 Dr. VRKS, J C.R.P.Nos.4430 of 2018 and batch THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR CIVIL REVISION PETITION Nos.4430, 4437 and 4438 of 2018 Date: 17.10.2022 Ivd