Madhya Pradesh High Court
Jai Narayan Durga Prasad vs Satyanarayan Alias Dhonbabu And Ors. on 6 March, 1991
Equivalent citations: 1991(0)MPLJ768
ORDER S.K. Dubey, J.
1. This is a revision by the plaintiff /petitioner against an order dated 25th October 1990 passed in Civil Suit No. 27-A/1983 by Second Additional Judge to the Court of District Judge, Gwalior, whereby defendants Nos. 1 to 4 were granted permission to produce handwriting expert in relation to two disputed documents (Ext. P-2), a partition deed between plaintiff and defendant No. 1 and his father, and Ext. D-5, a map prepared by the plaintiff which was a part of an agreement to sell in relation to the suit house.
2. For deciding this revision, certain facts are material. The plaintiff instituted a suit for declaration of title and for permanent injunction against defendants Nos. 1 to 4, who executed a sale-deed on 19-11-1985 in favour of defendant No. 5 in relation to the suit house, averring therein that a partitions took place between the father of the plaintiff the father of defendant No. 1 as long back as in the year 1949, and since then the parties are in possession of the properties as the sole owners; defendants Nos. 1 to 4 had no right or title in the suit house; the transfer made during the pendency of the suit is void and ineffective to the rights of the plaintiff. The defendants denied the genuineness of the document (Ext. P-2) and the signatures of defendant No. 1 and his father Durgaprasad on the said document. The plaintiff examined himself to prove the document (Ext. P-2) and the signatures not only of the plaintiff but also of the defendant No. 1 and his father on the said document. It is in this background that defendant No. 5 applied Under Order 16, Rule 1, read with Order 18, Rule 2(4), Civil Procedure Code, for an opportunity to produce handwriting expert. That application was dismissed on 20-4-1990. Aggrieved of the said order the defendants came before this Court in Civil Revision No. 85/1990 which was disposed of on 3-5-1990 with a direction that in dealing with the application the trial Court shall consider the relevancy of the evidence proposed to be adduced for the just determination of the case. After the order of this Court defendant No. 5 again applied on 27-6-1990 for granting permission to produce handwriting expert. The trial Court placing reliance on Sunderlal v. Anupkunwarbai, 1961 JLJ Note 553, held that as defendant No. 5 was not a party to the documents the prayer for allowing an opportunity to produce handwriting expert, cannot be allowed and, hence, dismissed the application. After dismissal of this application, defendants Nos. 1 to 4 moved an application and prayed for permission to produce handwriting expert. This application was allowed by the trial Court, and it is against this order that the petitioner/plaintiff has come in revision.
3. The contention of Shri K. S. Tomar and Shri K. B. Chaturvedi, learned counsel for the petitioner/plaintiff, is that as the trial Court has held that the document is produced from proper custody and is more than 30 years' old there is a presumption Under Section 90 of the Evidence Act that the signature and every other part of such document, which purports to be in the handwriting of any particular person is in that person's handwriting, and, in the case of the document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested; therefore, when the trial Court raised the presumption, no opportunity to produce handwriting expert could have been granted to defendants Nos. 1 to 4. It was further contended that defendants Nos. 1 to 4 have no right, title or interest in the suit house now, as the same has been transferred by them in favour of defendant No. 5; therefore, in view of the decision of this Court in Ashok Kumar v. Sunnu Khan, 1981 (1) MPWN 169, wherein this Court placing reliance on a decision of the apex Court in Nagubai, AIR 1956 SC 593, has held that the effect of transfer Us pendens as incorporated in Section 52 of the Transfer of Property Act is that the sale pendente lite cannot be wiped out altogether but it is subordinate to the rights based on the decree in the suit. As between the parties to the transaction, however, it is perfectly valid and operative to vest the title of the transferor in the transferee, the jurisdiction exercised by the trial Court in granting permission to produce handwriting expert, to defendants Nos. 1 to 4, is illegal.
4. After hearing counsel for the petitioner; Shri R. D. Jain, counsel for respondents Nos. 1 to 4, and Shri Lokendra Gupta, counsel for respondent No. 5, I am of the opinion that this revision has no merit and deserves to be dismissed.
5. True, Section 90 of the Evidence Act raises a presumption in respect of documents which are 30 years' old, about their execution and signatures and every other part of such documents, which purports to be in the handwriting of any particular person, if the documents are produced before the Court from a proper custody. But it is trite that the question as to whether the presumption Under Section 90 arises or not, in the circumstances of the case, must be decided on the evidence adduced. The parties are, therefore, left with the option of leading such evidence as they like for the proof or disproof of the presumption. (See Mohammad Hussain and Ors. v. Gopibai and Ors., 1975 JLJ N ote 38). Besides, the presumption is permissive; a party leading evidence to prove a document, cannot rely on such presumption. (See Shriram v. Sabir Hussain, 1983 MPWN 43). As the plaintiff himself has led evidence to prove the document and signatures on it of defendant No. 1 and his father, he cannot be heard to say that as the document is 30 years' old and there is presumption about its execution and signatures and every other part thereof, the defendants cannot be allowed to lead evidence in rebuttal.
6. The other contention of Shri Tomar, counsel for the petitioner, that as the defendants Nos. 1 to 4 having transferred the suit house to defendant No. 5, they have no right, title or interest in the property, the grant of permission to defendants Nos. 1 to 4 was illegal, has also no force. As held in Nagubai's case (supra) by the Supreme Court, the effect of Section 52 of the Transfer of Property Act is not to wipe out a sale pendente lite altogether but to subordinate it to the rights based on the decree in the suit; as between the parties to the transaction, however, it is perfectly valid and operative to vest the title of the transferor in the transferee. When defendant No. 5 applied for producing handwriting expert the trial Court rejected the application on the objection of the petitioner, observing that defendant No. 5 is not a party to the document, and when the parties to the document applied for permission the Court granted the permission; expressly or impiiedly the Court in its earlier order did not debar the parties to the document to apply for production of handwriting expert. The petitioner now cannot be allowed to say that as the property has been transferred during the pendency of the suit, defendants Nos. 1 to 4 have no right, title and interest. Admittedly, the petitioner is claiming a decree of declaration of title against defendants Nos. 1 to 4 and also against defendant No. 5, the purchaser pendente lite. The defendants Nos. 1 to 4 have denied the claim of the plaintiff and are contesting the suit. It would be strange to debar defendants Nos. 1 to 4 to avail of an opportunity to lead evidence in rebuttal and of hearing arguments advanced, of transfer pendente lite, as whatever decree is passed against the defendants Nos. 1 to 4, transferors, would be binding on both, i.e., transferors and transferee pendente lite.
7. At this stage, Shri Tomar, counsel for the petitioner, contended that as the plaintiffs evidence is over and the defendants Nos. 1 to 4 did not apply earlier, the plaintiff will have no opportunity to produce handwriting expert so as to prove that the document bears the signatures of the plaintiff's father, defendant No. 1 and his father; therefore, the petitioner be allowed to produce handwriting expert, as the defendant No. 1 had denied his signatures on the said document. In my opinion, the prayer is justified. When a Court grants permission to a party to produce handwriting expert to prove the handwriting and signature on a document, which the former party has denied. The trial Court shall see that the reports of the handwriting experts are received on both sides within a period of six weeks from today, and for that the parties shall be ready and shall give their specimen signatures. The parties shall move appropriate applications on the next date fixed and shall keep themselves present in the Court and also the handwriting experts.
8. Shri Lokendra Gupta also made a prayer that as the defendant No. 1 is an old man, who has to come from Ludhiana again and again, a direction be made to the trial Court to dispose of the suit in a time bound programme. The prayer is reasonable. As the recording of evidence is not concluded, it is expected that the trial Court shall expedite the disposal of the suit, and for that parties shall co-operate.
9. In the circumstances, the revision is dismissed with no order as to costs.