Madras High Court
Sankara Narayana Pillai vs Ignatious Selvaraj on 7 August, 2017
Author: T.Ravindran
Bench: T.Ravindran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 07.08.2017
Date of Reserving the Order
Date of Pronouncing the Order
31.07.2017
07.08.2017
CORAM
THE HONOURABLE MR.JUSTICE T.RAVINDRAN
C.R.P.(NPD) (MD) Nos.838 of 2006 & 839 of 2006
and
M.P.(MD) Nos.1 & 1 of 2006
Sankara Narayana Pillai
son of Padmanabha Pillai
Managing Trustee, Aloor Chetty Oor
Vagai Nainar Deiva Vinayakar
Pillaiyer Samy Koil
Ammankovil Street
Aloor, Kanyakumari District ... Petitioner in both C.R.Ps.
-vs-
Ignatious Selvaraj ... Respondent in
both C.R.Ps.
PRAYER (in C.R.P.(NPD) (MD) No.838 of 2006): Civil Revision Petition is
filed, under Section 115 of the Code of Civil Procedure, to set aside the
fair and decreetal order, dated 13.03.2006, made in E.A.No.229 of 2004 in
E.P.No.120 of 2003 in O.S.No.632 of 2000, on the file of the First Additional
District Munsif Court, Nagercoil.
PRAYER (in C.R.P.(NPD) (MD) No.839 of 2006): Civil Revision Petition is
filed, under Section 115 of the Code of Civil Procedure, to set aside the
fair and decreetal order, dated 13.03.2006, made in E.A.No.201 of 2004 in
E.P.No.5 of 1998 in O.S.No.192 of 2000, on the file of the First Additional
District Munsif Court, Nagercoil.
!For Petitioner : Mr.Anand Chandrasekar
(In both C.R.Ps) for M/s.Sarvabhauman Associates
^For Respondents : No appearance
(In both C.R.Ps)
:COMMON ORDER
Impugning the fair and decreetal orders, dated 13.03.2006, made in E.A.No.229 of 2004 in E.P.No.120 of 2003 in O.S.No.632 of 2000 and E.A.No.201 of 2004 in E.P.No.5 of 1998 in O.S.No.192 of 2000, on the file of the I Additional District Munsif Court, Nagercoil, the civil revision petitions have been laid by the revision petitioner.
2. In respect of Aloor Chettu Oor Vagai Neinar Divavinayakar Pillaiyar Samy Koil, a Denominational Trust, it is found that a scheme decree had been passed in O.S.No.51 of 1985, on the file of the Sub Court, Padmanabhapuram and it is also found that Thiru.Neelakandadhas, Advocate, has been appointed as a receiver to manage the said Trust. It is also found that the receiver had initiated certain proceedings for the recovery of the rents and the said proceedings ended in favour of the Trust and following the same, he has also initiated appropriate execution proceedings to collect the rents in E.P.Nos.157 and 120 of 2003. Further, it is found that as per the orders of the Sub Court, Padmanabhapuram, an election was conducted for the Trust and accordingly, three Trustees were elected and they being Kanagasabapathi, Gomathi Vinayagam and Sankara Narayana Pillai (petitioner herein). At that stage of the matter, it is found that the petitioner claiming that he had been elected as a Trustee as per the direction of the Court in the scheme decree and being elected as the Managing Trustee, preferred applications in E.A.Nos.229 and 201 of 2004 as mentioned above to implead him in the place of the receiver and it is found that the said applications were contested by the other Trustees.
3. According to the contesting Trustees, the fact that the petitioner Sankara Narayana Pillai was also elected as one of the Trustees is true, however thereafter, he has resigned the post and in his place, his brother Thamba Pillai has been elected as a Trustee and therefore, according to the contesting Trustees, Sanakara Narayana Pillai cannot claim to be the elected Trustee of the Trust and further according to them, Sankara Narayana Pillai has also received the amount deposited by him on resigning the post and due publication has also been made about his resignation in the newspapers and therefore, it is stated that the petitioner is not entitled to get himself impleaded in the place of the receiver.
4. However, the petitioner Sankara Narayana Pillai has disputed the case of the contesting Trustees and in fact he has stoutly disputed their case that he had resigned his post and according to him, the alleged resignation letter said to have been given by him is a created and forged document and no reliance could be placed on the same to deny the relief sought for by him in the applications and hence, according to him, his case should be accepted.
5. In this connection, it is found that the petitioner Sankara Narayana Pillai has been examined as R.W.1 and Kanagasabapathi has been examined as P.W.1 and on the side of the contesting Trustees, Exs.P1 to P5 have been marked and on the side of the petitioner, no document has been marked. The resignation letter alleged to have been given by the petitioner has been marked as Ex.P3, the voucher alleged to have been given by him for the receipt of the amount has been marked as Ex.P2 and the paper publication has been marked as Ex.P4.
6. The issue, therefore, before the Court below was that whether as alleged by the contesting Trustees, the petitioner Sankara Narayana Pillai had resigned his post. No doubt, Sankara Narayana Pillai has, in his evidence, disputed the same, however, he has also deposed that on account of the hospitalization of his wife due to illness, he was unable to attend the meetings and also not received any communication with reference to the meetings and therefore, he had entrusted his duties even two days after being elected as the Trustee.
7. The above evidence tendered by the petitioner seems to have been lingering in the mind of the Court below and therefore, on that footing also, it is found that the Court below has declined the request of the petitioner to get himself impleaded in the proceedings. However, as rightly put forth by the petitioner's counsel, there is no valid material placed on the part of the contesting Trustees as to the fact that the brother of the petitioner Thamba Pillai had been duly elected as a Trustee in his place and also about the discharge of the duties of the petitioner as Trustee had been carried on by any of the Trustees as put forth by them other than marking the above mentioned documents and two more documents as Exs.P1 and P5.
8. For holding that the petitioner Sankara Narayana Pillai has resigned his post, the Court below is found to have compared his signatures found in the disputed documents with that of his admitted signatures and finding them to be similar, accepted the case of the contesting Trustees and declined the relief sought for by the petitioner. Aggrieved over the same, the present civil revision petitions have been preferred by the petitioner.
9. As rightly argued by the learned counsel for the petitioner, the Court below in the impugned orders have not cared to disclose or detail as to with what admitted signatures of the petitioner it had compared the disputed signatures. Therefore, it is unable to detect as to what are the admitted signatures of the petitioner with which the Court below had compared the disputed signatures and therefore, as rightly put forth by the learned counsel for the petitioner, the impugned orders are very silent with reference to the same and therefore, the impugned orders on that score are liable to be set aside. Further, according to the learned counsel for the petitioner, though the Court is empowered to compare the disputed signatures with the admitted signatures as per Section 73 of the Indian Evidence Act, in the light of the decision of the Apex Court and other pronouncements of the High Courts, the Court as a matter of prudence and caution, should be hesitant in giving its findings with regard to the identity of the disputed signatures and the admitted signatures and it is not advisable on the part of the Court to take upon itself the task of comparing the admitted signatures with the disputed one to find out whether the two agree with each other and the prudent course is to obtain the opinion and assistance of an expert. With reference to the same, the learned counsel for the petitioner placed reliance upon the decision reported in AIR 1979 SC 14 [State (Delhi Administration) vs. Pali Ram]. The above aspect of the matter as put forth by the learned counsel for the petitioner is pointed out in the said decision.
10. Therefore, the Court below should be careful in comparing the disputed signatures with the admitted signatures, even assuming that the Court is empowered to take up the said task by itself, in such circumstances, when the Court is suo motu taking up the role of an expert, it should clearly point out as to what are the admitted signatures with which it had compared the disputed signatures and whether the admitted signatures have been admitted by the party concerned and that apart the Court should also give the reasons in detail as to on what basis or on what aspects, it had found similarities or dissimilarities with the admitted signatures and the disputed signatures on its comparison and the Court should also endeavour to clearly spell out the varying characteristics of the similarities or dissimilarities as observed by it so as to enable the parties to understand that the Court has approached the matter in the right perspective and determined the issue rightly one way or the other and further, the Appellate Forum also would be in a position to understand that the Court below has dealt with the said issue properly and correctly in a scientific manner as that of an expert.
11. However, in sofar as this case is concerned, it is found that no such attempt seems to have been made out by the Court below and it has simply held that on comparison of the signatures found in Exs.P2 and P3 with the admitted signatures, they being found to be similar, has resultantly declined the request of the petitioner. As seen above, the Court has not spelt out as to what are the admitted signatures of the petitioner with which it had compared the disputed signatures. Further, it is found that the petitioner has been kept in dark as to the above said endeavour of the Court below and therefore, it is highly doubtful whether at all the Court below would have compared the admitted signatures of the petitioner with the disputed signatures.
12. Further, if at all, as rightly argued, the Court had compared the admitted signatures of the petitioner with the disputed signatures, the petitioner having not produced any document containing admitted signatures before the Court below, it should be presumed that the Court would have endeavoured its comparison only based upon the signatures available in the vakalat and written statement. However, it has been held by this Court that the Court cannot direct the disputed document to be compared with the signatures available in vakalat or written statement of a party in the decision reported in 2010-1-L.W.646 [S.Chinnathai vs. K.C.Chinnadura]. Further, it has also been held in the decision reported in AIR 1996 SC 1140 [O.Bharathan vs. K.Sudhakaran and another] that the approach of the Court in taking upon the task of the expert and comparing the admitted signatures with the disputed signatures on its own without the aid of the expert or the evidence of the person conversant with the disputed signatures is not in conformity with the spirit of Section 73 of the Indian Evidence Act. Therefore, in the light of the above said legal pronouncements, when it is found that the impugned orders do not spell out as to what are the admitted signatures the Court had taken into consideration for comparing with the disputed signatures and further when the Court has also not given any reason whatsoever as to on what basis it has come to the conclusion that the admitted signatures and the disputed signatures are similar and further when the contesting Trustees have not established their claim that in the place of the petitioner, his brother had been elected as a Trustee and thereby one of the Trustees had been discharging his duties as the Managing Trustee lawfully, it is found that the Court below has committed an error, not sustainable in the eyes of law, in rejecting the case of the petitioner. On the mere evidence of the petitioner that he has handed over his responsibilities could not be taken as an admission that he had resigned the post of Trustee when the petitioner has stoutly denied the said fact and also disputed the resignation letter projected by the contesting Trustees as a concocted document. In such view of the matter, the Court below is expected to send the document for scientific comparison by an expert and the Court should have been cautious and hesitant to take up the task on its own and even assuming that the Court has the power to carry out the said task, having undertaken to discharge the same, it is expected of the Court that it should give plausible and acceptable reasons as to how it has come to the conclusion that the admitted and disputed signatures are either similar or dissimilar.
13. In the light of the above discussions, it is found that the Court below has committed a serious error in holding that the petitioner had resigned from the post of Trustee by its erroneous approach as detailed above and hence, in such view of the matter, the impugned orders cannot be allowed to stand and sustain and therefore, it is liable to be set aside.
14. In the light of the above discussions, the fair and decreetal orders, dated 13.03.2006, made in E.A.No.229 of 2004 in E.P.No.120 of 2003 in O.S.No.632 of 2000 and E.A.No.201 of 2004 in E.P.No.5 of 1998 in O.S.No.192 of 2000, on the file of the I Additional District Munsif Court, Nagercoil, are set aside and the matter is remitted back to the Court below and the Court below is directed to call upon the petitioner to produce his admitted signatures and thereafter, send the admitted signatures and the disputed signatures to the expert and after the obtainment of the report from the expert, dispose of the matter in accordance with law. Accordingly, the civil revision petitions are disposed of. No costs. Consequently, connected miscellaneous petitions are closed.
To:
The I Additional District Munsif, Nagercoil.
.