Gantasala Trimuthulu vs Mandala Raja Mani
2022 Latest Caselaw 7320 AP

      THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

         CIVIL REVISION PETITION No.2903 of 2019

ORDER:

In this revision filed under Article 227 of the Constitution

of India, the revision petitioners questioned the correctness of

order dated 16.08.2019 of learned Senior Civil Judge, Kaikaluru

in I.A.No.218 of 2019 in A.S.No.83 of 2018. By that impugned

order, the learned first appellate Court refused to forward

Ex.B.1 Will for the opinion of handwriting expert.

2. O.S.No.137 of 2010 was before learned Junior Civil

Judge, Kaikaluru. That was a suit for partition of certain

immovable properties. The allegations were that the estate

belonged to Sri Eswara Rao and on his death succession

operated and his wife, son and daughters got the property in

equal measures but the son is dodging for partition and

therefore, the suit was laid. While so, the son of the deceased

contested the suit stating that the deceased executed Ex.B.1

Will dated 06.01.2008 in favour of the grandson of the testator

and therefore, the property was not available for partition. After

due trial, the learned trial Court decreed the suit. Aggrieved by

it, the son and grandson preferred A.S.No.83 of 2018 and the

same was pending before the first appellate Court namely

learned Senior Civil Judge, Kaikaluru. While the matter was

Dr. VRKS, J C.R.P.No.2903 of 2019

coming up for arguments, the appellants before the first

appellate Court moved I.A.No.218 of 2019 under Section 45 of

the Indian Evidence Act requesting the Court to forward Ex.B.1

Will to the handwriting expert so as to enable them to prove that

Ex.B.1 Will was executed by Sri Eswara Rao himself. It is

stated that the entire case of the son and grandson in the

appeal depend upon Ex.B.1 and therefore, for proper justice,

expert's opinion is needed. Respondents therein filed their

counter stating that they ought to have availed this remedy

while the matter was pending before the learned trial Court and

they did not do so and they did not offer any explanation worth

mentioning to ask the appellate Court to seek the opinion of the

handwriting expert. Learned first appellate Court heard the

submissions on both sides and considered the material on

record and passed the impugned order, whereunder it refused

to grant the prayer and dismissed the petition.

3. The impugned order contained several reasons that made

the first appellate Court to refuse the prayer. Those reasons are

- 1. No sufficient reasons were shown for moving this

application at this stage of the litigation. 2. Contemporary

signatures of the testator were not made available and no

whisper is made about their availability. In the absence of such

Dr. VRKS, J C.R.P.No.2903 of 2019

undisputed signatures, there is no possibility to have a

comparison of signature on Ex.B.1 as genuine or not. 3. Ex.B.1

Will was shown to PW.1 during her cross-examination and PW.1

admitted that it contained the signature of her father

Sri Eswara Rao. Thus signature on Ex.B.1 Will was not in

dispute and in such an event forwarding such a document to

handwriting expert serves no purpose at all. It also made a

reference that the trial Court disbelieved Ex.B.1 Will because it

was found in suspicious circumstances and they were not

dispelled by the propounders of the Will. With such reasons, it

chose to dismiss the petition.

4. Aggrieved by that, this revision is preferred stating that

the impugned order is incorrect since non-availability of

contemporary signatures of the testator cannot be a ground to

reject a prayer for comparison of signatures on the disputed

document, PW.1 denied execution of Ex.B.1 Will by her father

and sufficient reason was shown for moving such an application

before the first appellate Court and the first appellate Court

failed to consider the whole dispute in proper perspective and

erroneously dismissed the petition and that shall be corrected in

this revision.

Dr. VRKS, J C.R.P.No.2903 of 2019

5. Learned counsel for revision petitioners made earnest

submissions assailing the impugned order. Though respondents

put in their appearance, they failed to submit any arguments.

6. The point that falls for consideration is:

"Whether the impugned order suffers from infirmity or

illegality in judicious exercise of discretion?

7. Point:

The material papers made available to this Court by the

revision petitioners contained cross examination of PW.1 dated

29.08.2011 where at the bottom of page No.5 it is seen that the

revision petitioners confronted the witness with Ex.B.1 Will and

the witness verified it and identified that the said Will contained

the signature of her father late Eswara Rao. Thus, the

submission of the revision petitioners that PW.1 spoke

otherwise is incorrect.

8. In the sworn affidavit filed by the 1st revision petitioner

before the learned trial Court, it is sated that during the entire

pendency of the trial, they could not ask for handwriting

expert's opinion and that happened because of lack of proper

instructions.

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9. Learned trial Court considered this aspect of the matter

and said that such contention is no ground to consider an

application of this nature during the hearing of first appeal.

During the hearing of this revision, the revision petitioners are

unable to say how their contention in the affidavit could be

stated to be a good or proper or sufficient cause. Be it noted

that collection of evidence is required to be completed in the

trial Court. While Ex.B.1 Will was propounded by these revision

petitioners, which is against the case set up by the opposite

party, it is up to them to prove the Will as is required under law.

Every opportunity was there for them to have direct evidence

and to have the evidence of a handwriting expert. In a suit that

was filed in the year 2010, trial Court passed the judgment in

the year 2015. Thus, for full five years, these revision

petitioners being assisted by their counsel were fighting against

the rest of the family members and even according to them,

Ex.B.1 Will is the only support they have got to establish their

case. They did not do it there and the first appeal was preferred

in the year 2015. They waited for a long time and they moved

the application in the year 2016. These facts would show that

these revision petitioners were somehow inclined to impede the

progress of the hearing of the appeal by the first appellate

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Court. The reasoning of the learned trial Court that these

revision petitioners have not offered the admitted or undisputed

signatures so as to enable the expert to use them and compare

whether Ex.B.1 contained the signatures of testator or not is the

most germane aspect of the matter. Revision petitioners failed

to say as to how any expert would come up in a position to

examine a signature and give an opinion that it is genuine

signature or fabricated signature of a testator in the absence of

admitted or undisputed signatures. The very well reasoned and

well crafted order of the learned trial Court is now challenged

without any merits. Point is answered against the revision

petitioners.

10. In the result, this Civil Revision Petition is dismissed

confirming the order dated 16.08.2019 in I.A.No.218 of 2019 in

A.S.No.83 of 2018 on the file of learned Senior Civil Judge,

Kaikaluru. 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: 23.09.2022 Ivd

Dr. VRKS, J C.R.P.No.2903 of 2019

THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

CIVIL REVISION PETITION No.2903 of 2019

Date: 23.09.2022

Ivd