Calcutta High Court
Dulal Chandra Adak And Anr. vs Gunadhar Patra And Anr. on 30 September, 1997
Equivalent citations: AIR1998CAL150, AIR 1998 CALCUTTA 150, (1998) 2 CAL WN 190 (1998) 2 CIVILCOURTC 473, (1998) 2 CIVILCOURTC 473
Author: Kalyan Jyoti Sengupta
Bench: Kalyan Jyoti Sengupta
JUDGMENT Kalyan Jyoti Sengupta, J.
1. This appeal is preferred impugning two judgments and decrees passed by the learned appellate Court below namely the learned Additional District Judge, Midnapore in Title Appeal No. 121 of 1984 and the learned trial Judge, viz., the learned Assistant District Judge 3rd Court at Midnapore in Title Suit No. 115 of 1976. Both the learned Court below held in favour of the respondents Nos. 1 and 2 who were the plaintiffs in the suit. The suit filed by the respondents Nos. 1 and 2/plaintiffs amongst other principally for partition and administration of the properties left behind by one Nandalal Adak, since deceased. In the said suit another relief has been claimed by the plaintiffs for declaration that the deed of gift allegedly executed by Nandlal Adak, since deceased in favour of the appellants herein is not binding upon the plaintiffs and the same are forged and fabricated document. The bone of contention in the present appeal as well as the suit is whether the said deed of gift dated 5th August, 1973 is a valid and lawful document or not. In other words, whether or not the said deed of gift was validly and lawfully executed by Nandalal Adak, since deceased. Both the learned Court below held that the said deed of gift is a fabricated document and the same has not been executed and registered by Nandalal Adak lawfully. During pendency of the appeal in this Court the plaintiff No. 1 along with the appellants herein made an application in this Hon'ble Court for compromise. In the said compromise petition filed on 10Mar. 1988 the plaintiff/respondent No. 1 has categorically stated that the said deed of gift was validly and lawfully executed by Nandalal Adak. In his petition the plaintiff No. 1 has in effect contradicted his own stand in the plaint. At the time of hearing both the parties agreed I should decide the suit itself, on the basis of the material available before me, as both the judgments and decrees of the learned Court below arc liable to be set aside under the law. It is submitted jointly that I can do so under Order XLII, Rule 1 read with Order XLI, Rule 24 of the Code of Civil Procedure.
2. Mr. Tarak Nath Roy, the learned Advocate appearing in support of the appeal, submits that both the learned Courts below have gone wrong while declaring that the said deed of gift is fabricated document upon impersonation. The learned both the Courts below came to the conclusion on the basis of evidence of the finger print expert and without considering rather brushing aside the direct evidence adduced by the appellants. It is alsohis submission thataverments made in the plaint are inconsistent and/or contradictory inasmuch as the plaintiffs on the one hand admitted the execution and signature of the donor by making out case of undue influence and misrepresentation, on the other hand the plaintiffs have denied and disputed the execution and registration of the donor alleging impersonation and forgery. Therefore, he submits these two allegations cannot run side by side. It is his submission further that where there is a case of undue influence and misrepresentation, the genuineness of signature and/orthumbimpression of the author of the document is admitted. But in the case of forgery and/or impersonation the question of undue influence and misrepresentation is beyond question. He submits further that in the said compromise petition one of the plaintiffs has categorically admitted that the said deed of gift is a valid piece of document, such admission squarely binds another plaintiff namely the other respondent under Section 18 of the Evidence Act, 1872. Mr. Roy further submits that the learned trial Judge has exceeded his jurisdiction by not following the order of direction given by the learned appellate Court below passed in the order of remand dated (sic).
3. Mr. Basu appearing for the respondent No. 2 submits that all the materials and evidence are galore whereby it will be evident that the said alleged deed of gift is a forged one. Mr. Basu submits that the case of undue influence and misrepresentation on behalf of his client is not pressed. His client want.s to, proceed on the basis of forgery. He urges that I should decide this suit on the question of fraud and forgery. He submits it will appear from the evidence of the finger print expert and his report that the thumb impression was not put by Nandalal Adak since deceased but by one Kanailal Bara. Therefore, when there is an evidence of an expert both oral and documentary on this specialised subject, the Court should accept his evidence not other evidence.
4. Mr. Roy submits in reply to the argument of Mr. Basu that the execution, attestation and registration have been proved by the witness who have personal knowledge of the same. He submits that the evidence of the writer of the document have not been made any dent in the cross-examination nor such evidence has been declared to be unbelievable or unacceptable by both the learned Court below. He argues that expert evidence cannot over weigh direct evidence. Moreover, in view of the admission of one of the plaintiffs it beyond doubt establishes genuineness and validity of the document. Therefore, the evidence of the learned both the Courts below are liable to be set aside as well as the suit should be dismissed.
5. I have heard the respective submissions of both the parties. I have examined all the materials and evidence on record. As both the parties have agreed to that I should decide the suit itself by exercising my power under Order 42, Rule i read with 41, Rule 24 of the Code of Civil Procedure, I accordingly do so. The reasons for exercising my power as above is that both the learned Courts below have relied on the evidence of the finger print expert and nothing else though the other evidence materials were available. The reasons of the learned appellate Court below is that no amount of oral evidence can outweigh the opinion of the expert in this regard. In my view this is absolutely wring approach under the law. The settled proposition of the law is just the reverse and that has been decided by the two decisions . Both the two decisions have settled that the evidence of the expert cannot outweigh the direct evidence. Moreover, the evidential value of the handwriting expert opinion is not a substantive one but a corroborative. The opinion of the handwriting expert can be taken Into consideration under the ordinary circumstances, when there is a clear and direct evidence for purpose of corroboralion only: This proposition has been settled by the decision of the Apex Court of this country . In paragraph 21 of the said judgment it is amongst others held ".......... besides it is necessary to observe that experts evidence as to handwriting is known evidence and it can rarely, if ever, takes the place of substantive evidence. Before acting on such evidence it is usual to see if it is corroborated either by clear direct evidence or by circumstantial evidence.........,.;" In this case there is no clear direct evidence adduced by the plaintiffs/respondents as observed by me as aforesaid nor there is any circumstantial evidence exist which can take the help of the corroborative evidence of the finger print expert. In this case both the learned Court below even did not touch nor even consider the direct oral evidence. Both the learned Court below even did not discard the evidence adduced by the defendants of the attestation and execution. On these ground alone the judgment and order of the Courts below are liable to be set aside. After doing so I could have remanded the suit for trial but I have refrained myself from doing so as this is a suit of 1975. Accordingly, I have accepted the submission and agreement of both the parties to decide the suit itself.
6. I have taken into consideration of all the materials placed before me up to the stage of second appeal. It will appear from the plaint that the basis of impugning the deed is undue influence, misrepresentation (in paragraphs Hand 16 of the plaint, and fraud forgery, impersonation and fabrication in paragraphs 17 and 19). This allegation of undue influence and misrepresentation, however, at the appellate stage have been withdrawn altogether by one of the plaintiffs being plaintiff No. 1. This allegation has been denied in the written statement by the defendant. The plaintiffs have not been able to bring any witness or adduce any evidence directly to rebut direct evidence of defendants on the point of registration and execution and attestation. The plaintiffs relied on the evidence of the fingerprint expert only. The evidence of the plaintiffs themselves cannot be accepted as they cannot have any personal knowledge and/or direct evidence as to the execution, attestation of, the said deed of gift. Moreover, the allegations made in the plaint on the fact of it are inconsistent and/ or contradictory. Mr. Roy rightly submits that the allegation of undue influence, misrepresentation cannot run side by side with the allegation of forgery and fabrication. The allegation of undue influence, fraud and misrepresentation admits of automatically, beyond any doubt, the genuineness of the signature. Therefore, going by the averments made in the plaint itself, the said document has been signed and executed by the donor. Of course, Mr. Basu tries in the second appellate Court, to improve upon his client's ease by abandoning the case of undue influence, misrepresentation. In my view, this cannot be done under the law at the appellate stage by the learned counsel by making oral submission, as the averment made in the pleading having effect of admission, cannot be allowed to be abandoned without the same is explained away by cogent and, proper evidence. At this second appellate stage, the plaintiff No, 1 has not come forward to explain away such admission genuineness of signature. Rather, the plaintiff No. 2 who was compatriot of, the main action has categorically admitted the case of the , defendants Nos. 1 and 2. Accordingly, by reason of inconsistent and contradictory case made out in the plaint and further admission of the co-plaintiff and oral direct evidence adduced by the defendants, I hold that the report and evidence of finger print expert is of no assistance on the point of execution and registration of the deed of gift in question. The admission of one of the parties having the same interest with that of another party who are fighting jointly for the same interest squarely binds the other. This proposition of law will be apparent from the provisions of Section 18 of the Evidence Act, 1872, which is reproduced below.
"Statements made by a party to the proceeds no, or by an agent to any such party, whom the Court regards, under the circumstances of the case, as expressly or impliedly authorised by him to make them, are admissions.
Statements made by parties to suits, suing or sued in a representative character, are not admissions, unless they were made while the party making them held that character.
Statements made by--
(1) persons who have any proprietary or pecuniary interest in the subject-matter of the proceeding, and who make the statement in their character of persons so interested, or (2) persons from whom the parties to the suit have derived their interest in the subject-matter of the suit, are admissions, if they ,are made during the continuance of the interest of the persons making the statements.
7. My above view finds support also from the old decisions of this Court .
8. It appears from the materials that, apart from the admission of the plaintiff No. 1, and the oral direct evidence of the D W 1, DW 2 and D W 3 beyond doubt prove lawful, valid, attestation, execution of the said deed of gift. In that view of the matter, now the plaintiff No. 2 has failed to prove the case made out in the plaint. Accordingly, the suit is dismissed and judgment and decree passed by the learned both the Courts below are set aside. In result, appeal succeeds and in allowed on contest with costs as against the respondent No. 2 assessed at Rs. 1,020/-.
9. 30-9-97, Mr. Roy, learned advocate prays for stay of operation of the judgment and order. In my view, there is s substantial question of law involved in this matter and the same requires some consideration by the apex Court. Accordingly, the stay is granted for a period of four weeks after long vacation. Certified copy of this judgment and order shall be given on urgent basis, if applied for.