Yarra Siva Prasad vs Sakshi Sri Vijaya Lakshmi Kumari
2022 Latest Caselaw 7872 AP

      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.

Dr. VRKS, J C.R.P.Nos.4430 of 2018 and batch

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

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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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"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

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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

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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

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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

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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

2002 (6) ALT 103 D.B. (AP)

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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

AIR 2008 AP 163

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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

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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

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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

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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

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