Karnataka High Court

Sri Chinnappa vs Smt Sharadamma on 28 May, 2024

Author: K.Natarajan

Bench: K.Natarajan

                           1




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 28TH DAY OF MAY, 2024

                     BEFORE
      THE HON'BLE MR JUSTICE K.NATARAJAN
     REGULAR FIRST APPEAL NO. 744 OF 2016
                       C/W
     REGULAR FIRST APPEAL NO. 743 OF 2016


IN REGULAR FIRST APPEAL NO.744 OF 2016

BETWEEN:

   SRI. CHINNAPPA
   S/O LATE MUTHAPPA,
   SINCE DECEASED BY HIS LRS,

1 . SMT. MADAMMA @ AKKAYAMMA
    W/O LATE CHINNAPPA,
    AGED ABOUT 78 YEARS,

2 . SMT. NAGAMMA
    D/O LATE CHINNAPPA,
    AGED ABOUT 53 YEARS,
   BOTH R/AT NO.44/1,
   SANKETH NILAYA,NETHAPPA LAYOUT,
   ARAKERE VILLAGE,
   BANNERGHATTA ROAD,
   BANGALORE SOUTH TALUK,
   BANGALORE - 560 076.

3 . SRI. VIJAYAKUMAR
    S/O LATE CHINNAPPA ,
    AGED ABOUT 51 YEARS,
                            2




4 . SRI. RAVIKUMAR
    S/O LATE CHINNAPPA,
    AGED ABOUT 49 YEARS,

   SRI. SHASHIKUMAR
   S/O LATE CHINNAPPA,
   SINCE DECEASED BY LRS,

5 . SMT. SHOBHA ,
    W/O LATE SHASHIKUMAR,
    AGED ABOUT 46 YEARS,

6 . SMT. GRISHMA
    D/O LATE SHASHIKUMAR,
    AGED ABOUT 16 YEARS,

7 . SRI. RUTHVIK
    S/O LATE SHASHIKUMAR,
    AGED ABOUT 14 YEARS,
   BOTH 6 AND 7 ARE MINORS,
   REPRESENTED BY THEIR NATURAL
   GUARDIAN MOTHER 5, SMT. SHOBHA.

8 . SRI. THULASI RAM
    S/O LATE CHINNAPPA,
    AGED ABOUT 41 YEARS,

9 . SRI. MANJUNATH
    S/O LATE CHINNAPPA,
    AGED ABOUT 36 YEARS,

   3, 4, 5, 6, 7, 8 AND 9 ARE
   R/AT NO.383/1, 27TH CROSS,
   KEMPAMMA LAYOUT,
   HULIMAVU VILLAGE, BEGUR HOBLI,
   BANGALORE SOUTH TALUK,
   BANGALORE - 560 076.
                            3




10 . SRI. C. KRISHNA
     S/O LATE CHINNAPPA,
     AGED ABOUT 47 YEARS,
     R/AT PLOT NO.166/8-Q-1,
     HULIMAVU, BANNERGHATTA ROAD,
     BANGALORE - 560 076

                                      ...APPELLANTS
(BY SRI. NAGAIAH, ADVOCATE FOR A1-A9;
    SRI. C.M.NAGABUSHANA, ADVOCATE FOR A10)

AND:

   SMT. SHARADAMMA
   W/O LATE NARAYANAPPA,
   AGED ABOUT 64 YEARS,
   R/AT PLOT NO.383/19,
   KEMPANNA BADAVANE,
   27TH CROSS, HULIMAVU,
   BANNERGHATTA ROAD,
   BANGALORE - 560 076.
                                       ...RESPONDENT
(SRI. MADHUKAR DESHPANDE, ADVOCATE)

     THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 OF CPC., AGAINST THE JUDGMENT AND
DECREE DATED:1/04/2016 PASSED IN O.S NO.7800/2010
ON THE FILE OF THE XXII ADDL. CITY CIVIL AND SESSIONS
JUDGE, BENGALURU (CCH NO.7), DECREEING THE SUIT
FOR DECLARATION AND PERMANENT INJUNCTION.

IN REGULAR FIRST APPEAL NO.743 OF 2016
BETWEEN:
   SRI. C. KRISHNA
   S/O LATE CHINNAPPA,
   AGED ABOUT 46 YEARS,
                           4




   R/AT PLOT NO.156/8-Q-1,
   HULIMAVU, BANNERGHATTA ROAD,
   BANGALORE - 560 076.
                                          ...APPELLANT
(BY SRI. C.M.NAGABUSHANA, ADVOCATE)

AND:

1 . SMT. SHARADAMMA
    W/O LATE NARAYANAPPA,
    AGED ABOUT 64 YEARS,

2 . SRI. THIRTHA PRASANNA @ BABU
    S/O LATE NARAYANAPPA,
    AGED ABOUT 44 YEARS,

   BOTH ARE R/AT PLOT NO.383/19,
   KEMPANNA BADAVANE,
   27TH CROSS, HULIMAVU,
   BANNERGHATTA ROAD,
   BANGALORE - 560 076.

                                       ...RESPONDENTS

(BY SRI. MADHUKAR DESHPANDE, ADVOCATE FOR R1 & R2)

     THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 OF CPC., AGAINST THE JUDGMENT AND
DECREE DATED 01.04.2016 PASSED IN O.S NO.7653/2010
ON THE FILE OF THE XXII ADDL. CITY CIVIL AND SESSIONS
JUDGE, BENGALURU, DISMISSING THE SUIT FOR
DECLARATION      AND      PERMANENT        INJUNCTION.


     THESE REGULAR FIRST APPEALS HAVING BEEN
HEARD AND RESERVED FOR ORDERS ON 05.04.2024 THIS
DAY, THE COURT PRONOUNCED THE FOLLOWING:
                                          5




RESERVED FOR ORDERS ON: 05.04.2024
PRONOUNCED ON           : 28.05.2024



                                 JUDGMENT

Both these appeals are filed by the appellants

under Section 96 of CPC for setting aside the

judgments passed by the XXII Additional City Civil and

Sessions Judge, Bengaluru, dated 01.04.2016, for

having dismissed the suit in O.S.No.7653/2010 filed by

the appellants and for setting aside the judgment by

decreeing the suit of the respondent in

O.S.No.7800/2010.

2. Heard the arguments of learned counsel for

the appellants and learned counsel for the respondents.

3. The appellant Sri.C.Krishna is plaintiff in

O.S.No.7653/2010 and the respondent/Sharadamma

was defendant No.1 before the trial court and same

Sharadamma/respondent No.1, herein was the plaintiff

in O.S.No.7800/2010. Therefore, the appellant was

considered as plaintiff in the trial court and the

respondent considered as defendant in the trial court.

The rank of the parties are retained for the sake of

convenience.

4. The case of the plaintiff in O.S.No.7653/2010

by Sri.C.Krishna who is sole appellant in RFA

No.743/2016 filed suit against the defendant Nos.1 and

2 i.e., Sharadamma and Teertha Prasanna @ Babu for

declaration and permanent injunction restraining them

from interfering with peaceful possession and

enjoyment of the property bearing Khaneshumari

No.8, BBMP Khata No.55/55/41/38/8 of Hulimavi

village, Begur Hobli, Bengaluru South Taluk, measuring

East-West 63 feet and North-South 26 feet, herein after

referred as 'suit schedule property".

5. It is alleged that the suit schedule property

has been purchased from his father Chinnappa on

12.10.2009 by sale deed, as Chinnappa was the power

of attorney holder of one Narayanappa, the husband of

the 1st defendant Sharadamma. The plaintiff got his

name entered in BBMP records. The Narayanappa who

is husband of the 1st defendant and the 2nd defendant is

son, had executed GPA and agreement of sale in favor

of the father of the plaintiff on 25-06-1988 and he

became the absolute owner of the said property but the

defendants were trying to interfere with the suit

schedule property. Hence, filed the suit for declaring as

owner and restraining defendants from enjoying the

schedule property.

6. Whereas, the case of the plaintiff (defendant

Sharadamma) in O.S.No.7800/2010 is that the plaintiff

filed the suit for declaration to declare the sale deed

dated 12-10-2009 executed by the GPA holder,

Chinnappa in favor of the plaintiff as null and void and

not binding on the plaintiff and also injunction

restraining the plaintiff Chinnappa in

OS No.7653/2010 from interfering with the suit

schedule property. The defendant Sharadamma and

her son filed written statement and additional written

statement, contending that the father of the plaintiff

and husband of defendant No.1, were brothers. There

was partition among the brothers in the year 1971 and

the suit schedule property had fallen to the share of

Narayanappa who is husband of defendant No.1. The

written statement as well as the averments in the OS

No.7800/2010 is that, her husband died on 28-09-2001

and after his death, the defendants are in peaceful

possession and enjoyment of schedule property. The

names were entered in the CMC, Bommanahalli BBMP,

Arekere Sub-Division, Bengaluru. The plaintiff have no

right, title or interest to claim the property. The

husband of Sharadhamma said to have executed GPA

on 25-06-1988, agreement of sale and also affidavit on

25-06-1988. On the strength of the GPA, the sale deed

was executed by Chinnappa, in favour of the plaintiff

C.Krishna. But her husband never executed any GPA or

sale-cum-affidavit at any point of time. Based upon the

agreement of sale and GPA, the sale deed was

executed in favour of the plaintiff, which is not binding

on this defendant. Therefore, prayed for dismissing the

suit of the plaintiff and to allow the suit filed by the

defendant or decreeing the suit filed by the defendant.

The plaintiff filed written statement in OS

No.7800/2010 by taking same contention in the plaint

averments as taken in OS.No.7653/2010. Based upon

the above pleadings, the trial court framed the

following issues;

"In O.S.No.7653/2010:

1. Whether the plaintiff proves lawful possession over the suit property?

2. Whether the plaintiff proves unlawful interference by the defendants with the possession of suit property by plaintiff?

3. Whether suit is maintainable?

4. What Decree or Order?

Additional Issue:

1. Whether the plaintiff proves that he is the absolute owner of suit schedule property?

In O.S.No.7800/2010:

1. Whether the plaintiff proves that sale deed dated 12-

10-2009 executed by defendant No.1 in favour of defendant No.2 is void and invalid document?

2. Whether the plaintiff proves her lawful possession over the suit property?

3. Whether the plaintiff proves the alleged interference?

4. To what decree or Order?"

7. On behalf of the plaintiff in OS No.7653/2010,

he himself was examined as PW1 and also examined 3

more witnesses as PW2 to PW4 and got marked 29

documents. On behalf of the defendants, the

defendant No.2, was examined as DW1 and he also got

examined two witnesses DW2 and DW3 and got marked

30 documents. After hearing the arguments, the trial

court answered the Issue Nos.1 to 3 and additional

Issue No.1 in the negative in OS no.7653/2010 and

affirmative in OS No.7800/2010 and finally the suit of

the plaintiff was dismissed and suit filed by the

defendant was decreed by the impugned common

judgment, which is under challenge.

8. The learned counsel for the appellant has

strenuously contended that the husband of the

respondent have executed the GPA as well as

agreement of sale cum affidavit in favour of his brother

Chinnappa in 1988 itself. But the said Chinnappa

though purchased the property from his brother, but

not got executed the sale deed in his favour and he has

put up the construction in 1991 during the lifetime of

his brother. At that time, the defendants have not

interfered with the possession but after the death of

Narayanappa in the year 2001, the defendant started

obstructing the peaceful possession of the plaintiff's

property. The GPA executed by Narayanappa in favour

of Chinnappa, but Chinnappa executed sale deed in

favour of plaintiff and the documents were mutated in

the name of the plaintiff, though all these documents

were accepted by the trial court, but the suit was

dismissed only on the ground by comparing the

signature as the notary was not examined. The

handwriting expert opinion shall have to be

appreciated. The plaintiff filed the documents and

pleadings which probabilised the case of the plaintiff.

Therefore, the question of comparing the signature by

the trial court is not correct. The trial court has not

given finding in respect of agreement of sale, executed

by the Narayanappa. Though the sale deed was

executed by Chinnappa in favour of his son Krishna, the

GPA is coupled with interest, therefore even if executor

of GPA dies, the GPA will not be terminated. GPA is

presumptive in nature, the question of terminating GPA

after death of Narayanappa does not arises. There is a

contradiction in the evidence of defendant witnesses

where the DW1 says it is a vacant land and DW2 says

there was a construction, but in fact there is

construction of a house by the plaintiff in the schedule

property. The tax paid receipts also reveals the same.

Therefore, the trial court committed error in dismissing

the suit of the plaintiff.

9. Learned counsel for the appellant further

contended the trial court committed error in comparing

the seal of the notary, as the earlier seal belongs to the

notary, which was old one, subsequently as per the

notary rules, the new format of the seal was changed

and without examining the notary, the trial court should

not have disbelieved the GPA. The notary was

executed in the year 1988, but the notary rules was

brought and new seal was formatted in the year 1997.

Therefore, trial court has committed error and without

examining the notary who is more than 83 years old

notary advocate. Even some documents produced by

the defendant at Ex.D25 to Ex.D30 which is not a public

document, which is not issued by the public authority,

Such being the case, there is no evidential value is

attached with the said documents in order to believe

the same. Hence, prayed for setting aside the

judgment of the trial court.

10. Per contra, the respondent counsel has

contended, that the husband of the respondent was the

owner of the schedule property, which was fallen to his

share in the partition in the year 1971. Narayanappa

died on 28.9.2001, subsequently the name of the

defendants were entered into the revenue records. The

plaintiff's father is elder brother of the husband of

defendant No.1. The plaintiffs have created the

documents at Ex.P6/GPA on 25.6.1988 and also

agreement of sale. The property was larger property,

there are various sites which were formed and

distributed among the family members. The notary seal

at Ex.D30 said to be made by one Lalitha, advocate

notary, but same is not in the format as per Rule No.16

of the notary rules, which is altogether different. The

court has considered Ex.P6 and Ex.P7 and rightly

decreed the suit of the defendant. The seal of the

notary was misused and was not tallying. When the

defendant denied the seal, it is plaintiff to prove the

same. Therefore, it is contended after appreciating

evidence on record, trial court rightly decreed the suit.

Further contended that, the husband of the respondent

died. Therefore, GPA also extinguishes, it was not acted

upon prior to death of Narayanappa and till today it is

vacant site. GPA was created and they were silent till

the death of Narayanappa and thereafter sale deed was

executed by forging the signature of notary. The

Ex.D23 is specimen seal of the notary, which was

considered by the trial court, therefore prayed for

dismissing the appeals. Both the counsel in support of

their contention relied upon the judgment of Supreme

Court.

11. Having heard the arguments and perused the

record, the point that arises for consideration are;

(i) Whether the plaintiff proves that he is the absolute owner of suit schedule property, by way of sale deed executed by his father on 12.10.2009 based upon the GPA executed by Narayanappa, the husband of defendant No.1?

(ii) Whether the defendant proves that they are the absolute owner of the suit schedule property, in view of after the death of Narayanappa and they are in possession and that the sale deed of Chinnappa is not binding on them?

and

(iii) Whether the judgment and decree passed by the trial court calls for any interference?

12. On perusal of the records, the evidence of

the PW1 plaintiff and his case is that, the Narayanappa

executed GPA and agreement of sale in faovur of his

father, on the basis of the GPA his father executed sale

deed on 12.10.2009. Subsequently, the BBMP also

issued the khatha in his name, he has paid the taxes.

The said Narayanappa said to be executed GPA on

25.6.1988 and delivered the vacant possession. The

Ex.P6 is the General power of attorney executed by

Narayanappa in favour of Chinnappa, the father of the

plaintiff. The schedule also mentioned the property

Khaneshumari No.8, BBMP Khata No.55/55/41/38/8 of

Hulimavu village, Begur Hobli, Bengaluru South Taluk,

measuring East-West 63 feet and North-South 26 of

suit schedule property and Ex.P7 is agreement of sale,

notarised by notary Lalithamma. The same was denied

by the defendant in the cross examination and

disputing that the Ex.P6 and Ex.P7 are the fake

documents or forged documents created after death of

the Narayanappa. During the cross examination, the

property was partitioned and predecessor and title was

elicited, since the schedule property was fallen to the

share of the husband of defendant No.1, namely

Narayanappa, was not in dispute. The remaining

documents were subsequent to the sale deed and tax

paid receipts. The only Ex.P6 and Ex.P7 were seriously

disputed, on the ground that the signature of

Narayanappa was not found on the documents. The

notary seal was forged etc., but the father of the

plaintiff said to have given Rs.15,000/- to

Narayanappa under the agreement of sale. The

evidence of the PW1 was supported by the PW2

Ramesha who is the brother of PW1. Once again, the

same cross examination was done by the defendant

counsel by denying the agreement and affidavit. The

PW3 one Gopalappa also given evidence, who is the

brother of the plaintiff's father as well as defendant's

husband, he also stated that the agreement of sale and

affidavit or GPA was given by the husband of the

defendant No.1. Once again, in the cross examination

it was denied by the defendant counsel. PW4/Jayappa,

the cousin brother of the plaintiff who was also relation

of the defendant, given evidence in favour of the

plaintiff. Except denying the same, the agreement and

GPA, nothing has been elicited.

13. However, the defendant No.2 examined

himself as DW1 and his case was that the documents

were forged by the PW1 and notary and seals were

forged and all documents were forged in order to

knock out the property. It is not in dispute, the father

of the DW1 died in the year 2001. Subsequently, the

father of the plaintiff executed sale deed in favour of

the plaintiff, after death of Narayanppa, they also got

mutated their names in the revenue records. As

regards to the partition falling to the share of

Narayanappa and the death of Narayanappa were all

not in dispute, except the contention that the Ex.D23 a

letter was given by Lalithamma an Advocate and

Notary to the Principal City Civil and Sessions Judge,

City Civil Court Complex, Bengaluru and complaint

given by Lalithamma to the Secretary, Law

Department as per Ex.D24 and Ex.D25. The renewal

letter was given for the renewal of Notary Certificate of

Lalithamma at Ex.D26. The Ex.D27 is the letter by the

Law Secretary to the Principal City Civil and Sessions

Judge, Bengaluru. Ex.D28 is extract of Form No.14

issued by the Sub-registrar, Bommanahalli, where the

signature of his father at Ex.D28(a) and signature of

Kempanna at Ex.D28(b). Ex.D29 is the notary

certificate issued by the Government to Lalithamma.

Ex.D30 is the specimen signature and seal of the

Notary Lalithamma. On perusal of the specimen seal

and the letter given by the Lalithamma to the Law

Secretary, renewal letter issued by law department,

Ex.D23 is letter given by the Lalithamma to the

Principal City Civil and Sessions Judge, Bengaluru,

stating that her signature and seal was forged and

misused in court and she said to be given complaint to

the Law Department and Commissioner of Police, this

letter was given by her on 30.3.2007. Ex.D24, the

intimation was given to the Law Department.

However, there is no reference that the plaintiff or his

father forged any GPA and affidavit. Ex.D26 is a no

objection letter issued by Principal City Civil and

Sessions Judge, Bengaluru. Ex.D27 is renewal letter

issued by the Law Department. The Ex.D29 is the

certificate issued by the Government for doing notary

work. The Ex.D30 is mainly relied by the defendant

that he is having specimen seal and notary. In this

regard, the learned counsel for the appellant has

brought to the notice that this specimen seal was

issued by the Government as per the Notary Rules

which was amended in the year 1997, but the notary

was made in this case was in the year 1988. At that

time, there was no such specimen seal of notary was

issued. As per the Rule 12 of 'the Notary rules 1956'

which was amended in the year 1997, the notary seal

was mentioned below i.e., the Rule No.12,

"12. Seal of notary. Every notary shall use a plain circular seal of a diameter of 5 cm. as indicated by a drawing given below, bearing his name, the name of the area within which he has been appointed to exercise his functions, the registration number and the circumscription "NOTARY", and the name of the Government which appointed him."

and prior to this amendment, there was no specimen

seal prescribed by the State. Therefore, the Ex.P30

specimen seal produced by the defendant cannot be

taken into consideration, which was implemented only

after 1997. Therefore, the seal affixed on Ex.P6 and

Ex.P7 cannot be said as forged seal. The defendant

also not produced the previous specimen seal to show

the seal was forged are altogether different.

14. That apart, the defendant not examined

Lalithamma, the notary to show the signature of the

Notary was forged as per Ex.P6 and Ex.P7. Even

otherwise, the signature of the Lalithamma found in

the disputed documents along with the admitted

signature and admitted seal which were not sent to

the forensic science lab for comparison. Merely a

signature available on the documents issued by the

Sub-registrar which is a Xerox copy, that cannot be

admitted signature of the Naryanappa for comparing

the signature by the court as per section 73 of the

Evidence Act. Therefore, in this regard, the appellant

counsel relied upon the judgment of Hon'ble Supreme

Court reported in AIR 1992 SUPREME COURT 2100

SUPREME COURT in case of State of Maharashtra

Vs Sukhdeo Sing and Another at paragraphs 29, 30

and 31 are as under;

29. It is well settled that evidence regarding the identity of the author of any document can be tendered (i) by examining the person who is conversant and familiar with the handwriting of such person or (ii) through the testimony of an expert who is qualified and competent to make a comparison of the disputed writing

and the admitted writing on a scientific basis and (iii) by the court comparing the disputed document with the admitted one.

In the present case the prosecution has resorted to the second mode by relying on the opinion evidence of the handwriting expert PW 120.

But since the science of identification of handwriting by comparison is not an infallible one, prudence demands that before acting on such opinion the court should be fully satisfied about the authorship of the admitted writings which is made the sole basis for comparison and the court should also be fully satisfied about the competence and credibility of the handwriting expert. It is indeed true that by nature and habit, over a period of time, each individual develops certain traits which give a distinct character to his writings making it possible to identify the author but it must at the same time be realised that since handwriting experts are generally engaged by one of the contesting parties they, consciously or unconsciously, tend to lean in favour of an opinion which is helpful to the party engaging him. That is why we come across cases of conflicting opinions given by two handwriting experts engaged by opposite parties. It is, therefore, necessary to exercise extra care and caution in evaluating their

opinion before accepting the same. So courts have as a rule of prudence refused to place implicit faith on the opinion evidence of a handwriting expert. Normally courts have considered it dangerous to base a conviction solely on the testimony of a handwriting expert because such evidence is not regarded as conclusive. Since such opinion evidence cannot take the place of substantive evidence, courts have, as a rule of prudence, looked for corroboration before acting on such evidence. True it is, there is no rule of law that the evidence of a handwriting expert cannot be acted upon unless substantially corroborated but courts have been slow in placing implicit reliance on such opinion evidence, without more, because of the imperfect nature of the science of identification of handwriting and its accepted fallibility. There is no absolute rule of law or even of prudence which has ripened into a rule of law that in no case can the court base its findings solely on the opinion of a handwriting expert but the imperfect and frail nature of the science of identification of the author by comparison of his admitted handwriting with the disputed ones has placed a heavy responsibility on the courts to exercise extra care and caution before acting on such opinion.

Before a court can place reliance on the opinion of an expert, it must be shown that he has not betrayed any bias and the reasons on which he has based his opinion are convincing and satisfactory. It is for this reason that the courts are wary to act solely on the evidence of a handwriting expert; that, however, does not mean that even if there exist numerous striking peculiarities and mannerisms which stand out to identify the writer, the court will not act on the expert's evidence.

In the end it all depends on the character of the evidence of the expert and the facts and circumstances of each case.

30. In Ram Narain v. State of U.P. [(1973) 2 SCC 86 : (AIR 1973 SC 2200) this Court was called upon to consider whether a conviction based on uncorroborated testimony of the handwriting expert could be sustained. This Court held: (para 4 of AIR):) "It is no doubt true that the opinion of handwriting expert given in evidence is no less fallible than any other expert opinion adduced in evidence with the result that such evidence has to be received with great caution. But this opinion evidence, which is relevant, may be worthy of acceptance if there is

internal or external evidence relating to the document in question supporting the view expressed by the expert."

A similar view was expressed in the case of Bhagwan Kaur v. Maharaj Krishan Sharma (1973) 4 SCC 46 : (AIR 1973 SC 1346) in the following words: (para 27 of AIR):

"The evidence of a handwriting expert, unlike that of a fingerprint expert, is generally of a frail character and its fallibilities have been quite often noticed. The courts should, therefore, be wary to give too much weight to the evidence of handwriting expert."

In Murari Lal v. State of M.P. [(1980) 1704 :(AIR 1980 SC

531) this Court was once again called upon to examine whether the opinion evidence of a handwriting expert needs to be substantially corroborated before it can be acted upon to base a conviction. Dealing with this oft- repeated submission this Court pointed out (para 6 of AIR):) "Expert testimony is made relevant by Section 45 of the Evidence Act and where the Court has to form an opinion upon a point as to identity of handwriting, the opinion of a person 'specially skilled' 'in questions as to identity of handwriting' is expressly made a relevant fact. There is nothing in

the Evidence Act, as for example like illustration (b) to Section 114 which entitles the Court to presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars, which justifies the court in assuming that a handwriting expert's opinion in unworthy of credit unless corroborated. The Evidence Act itself (Section 3) tells us that 'a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists'. It is necessary to occasionally remind ourselves of this interpretation clause in the Evidence Act lest we set an artificial standard of proof not warranted by the provisions of the Act. Further, under Section 114 of the Evidence Act, the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to facts of the particular case. It is also to be noticed that Section 46 of the Evidence Act makes facts, not otherwise relevant, relevant if they support or are inconsistent with the opinions of experts, when

such opinions are relevant. So, corroboration may not invariably be insisted upon before acting on the opinion of an handwriting expert and there need be no initial suspicion. But, on the facts of a particular case, a court may require corroboration of a varying degree. There can be no hard and fast rule, but nothing will justify the rejection of the opinion of an expert supported by unchallenged reasons on the sole ground that it is not corroborated. The approach of a court while dealing with the opinion of a handwriting expert should be to proceed cautiously, probe the reasons for the opinion, consider all other relevant evidence and decide finally to accept or reject it."

After examining the case-law this Court proceeded to add: (para 11 fo AIR):

"We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallised into a rule of law, that opinion-evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach, as we indicated earlier, should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be

considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of an handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight."

What emerges from the case-

law referred to above is that a handwriting expert is a competent witness whose opinion evidence is recognised as relevant under the provisions of the Evidence Act and has not been equated to the class of evidence of an accomplice. It would, therefore, not be fair to approach the opinion evidence with suspicion but the correct approach would be to weigh the reasons on which it is based. The quality of his opinion would depend on the soundness of the reasons on which it is founded. But the court cannot afford to overlook the fact that the science of identification of handwriting is an imperfect and frail one as compared to the science of identification of fingerprints; courts have, therefore, been wary in placing implicit reliance on such opinion evidence and have looked for corroboration but that is not to say that it is a rule of prudence of

general application regardless of the circumstances of the case and the quality of expert evidence. No hard and fast rule can be laid down in this behalf but the court has to decide in each case on its own merits what weight it should attach to the opinion of the expert.

31. The trial court examined the evidence of the handwriting expert PW 120 in great detail and came to the conclusion that it was hazardous to rely on his evidence as he had betrayed bias against the accused and in favour of the prosecution as "he also belongs to the Police Department".

(see paragraph      159      of    the
judgment).      As    regards      the

specimen writings/signatures of Accused 1 the trial court observes in paragraph 157 as under:

"These answers in cross-

examination of this witness do show that the specimen writings of Sukhdev Singh alias Sukha (Accused 1) and the questioned writings are not written by Sukhdev Singh (Accused No.1.)at all."

As regards Accused No.2 Nimma, the learned trial Judge points out that the specimen signature 'N. Singh' does not correspond with the questioned documents. The learned trial Judge, therefore, did not consider

it wise to place reliance on the opinion of PW 120 particularly because he did not consider his opinion to be independent but found that he had betrayed a tilt in favour of the investigating machinery. Since the trial court did not consider the opinion of PW 120 to be dependable he did not deem it necessary to look for corroboration. For the same reason he did not consider it necessary to scrutinise the evidence of the expert in regard to the two absconding accused Sukhi and Bittu. No such opinion evidence is relied upon in respect of the other accused. We may at once state that the quality of evidence in regard to proof of identity of Sukhi and Bittu through their so-called handwriting is weaker than that of Accused 1. We have carefully examined the opinion evidence of PW 120 and we agree with the learned trial Judge that the quality of his evidence is not so high as to commend acceptance without corroboration. Having given our anxious consideration to the expert's evidence, through which we were taken by the learned counsel for the prosecution, we do not think that the view taken by the learned trial Judge is legally unsustainable or perverse. Even otherwise having regard to the facts and circumstances of the case and the nature of evidence

tendered and the quality of evidence of PW 120 the prosecution has not succeeded in establishing beyond reasonable doubt the so-called conspiracy.

15. In another judgment AIR 1997 SUPREME

COURT 3255 SUPREME COURT in case of Ajit

Savant Majagavi Vs State of Karnataka, it is held

that the comparison of the signature shall be made

either by the hand writing expert under Section 45 of

the Evidence Act or anyone familiar with hand writing

of the person as per Section 47 of the Evidence Act

and the court has no power to compare the disputed

and admitted signatures under Section 73 of the

Evidence Act.

16. In view of the above judgment, the trial

court committed error in comparing the signature of

the deceased Narayanappa, which was available, that

too in the Xerox copy of the documents with the Ex.P6

and Ex.P7. The defendant could have made an

application for referring the admitted and disputed

signatures to the forensic science lab, that was not

done and therefore the signature found on Ex.P6 and

Ex.P7 is forged, cannot be acceptable. The seal of the

Lalithamma notary also cannot be said, it is forged

seal, as there is no evidence adduced by the defendant

either by examining Lalithamma or producing the

previous specimen seal of the notary. Therefore, the

evidence of the DW1 and DW2 is not sufficient to prove

in case of O.S.No.7800/2010 that there is no

agreement or affidavit executed by Narayanappa,

cannot be acceptable. DW3 another witness, who is

also one of the relative of the defendants also given

evidence that the documents were forged, but the

same was cross examined by the plaintiff's advocate

and impeached. In view of the above findings, where

the defendant failed to prove the documents at Ex.P6

and Ex.P7 were forged one and Ex.P30 specimen seal

of Lalithamma was forged one, without any

documentary or expert opinion of the hand writing

expert and non examination of Lalithamma.

17. Now the question arises, whether the

agreement of sale and the GPA executed by

Narayanappa is valid even after death of Narayanappa

in the year 2001. On perusal of Ex.P6 GPA is coupled

with interest and under the agreement of sale, the

plaintiff's father paid sale consideration to the father of

the defendant. Ex.P7 is not only agreement, which

also is an affidavit. Where he has received

Rs.15,000/-, the entire sale consideration and he has

agreed to execute the sale deed and undertaken to

clear the litigation, if any. This agreement is only

formal agreement, since at the time, the revenue land

could not be sold. Therefore, in those days the land

owners used to sell the property by affidavit and GPA,

it is nothing but a GPA sale. In this regard, learned

counsel for the respondent relied upon judgment of

Hon'ble Supreme Court reported in (2012) 1 SCC 656

in case of Suraj Lamp and Industries Pvt., Ltd., Vs

State of Haryana and Ors wherein the Hon'ble

Supreme Court has categorically held the GPA sales

are not valid sale documents at paragraph Nos.24, 25

and 26, as under;-

24. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance.

Transactions of the nature of "GPA sales"

or "SA/GPA/will transfers" do not convey title and do not amount to transfer, nor can they be recognised or valid mode of transfer of immovable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognised as deeds of title, except to the limited extent of Section 53-A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in municipal or revenue records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly

transferred only under a registered assignment of lease. It is time that an end is put to the pernicious practice of SA/GPA/will transactions known as GPA sales.

25. It has been submitted that making declaration that GPA sales and SA/GPA/will transfers are not legally valid modes of transfer is likely to create hardship to a large number of persons who have entered into such transactions and they should be given sufficient time to regularise the transactions by obtaining deeds of conveyance. It is also submitted that this decision should be made applicable prospectively to avoid hardship.

26. We have merely drawn attention to and reiterated the well-settled legal position that SA/GPA/will transactions are not "transfers" or "sales" and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreements of sale. Nothing prevents the affected parties from getting registered deeds of conveyance to complete their title. The said "SA/GPA/will transactions" may also be used to obtain specific performance or to defend possession under Section 53-A of the TP Act. If they are entered before this day, they may be relied upon to apply for regularisation of allotments/leases by development

authorities. We make it clear that if the documents relating to "SA/GPA/will transactions" have been accepted/acted upon by DDA or other developmental authorities or by the municipal or Revenue Authorities to effect mutation, they need not be disturbed, merely on account of this decision.

18. In view of the judgment of Hon'ble Supreme

Court if the sale was made under GPA or GPA sales are

not valid sales. However, here in this case, the father

of defendant No.2 not only executed agreement of

sale, but also GPA at Ex.P6 and the said GPA was acted

upon by the father of the plaintiff and executed sale

deed in favour of the plaintiff. Now the question

arises, whether the person executing GPA has died or

acted upon, will the GPA continue or terminate? In

this regard, the counsel for the appellant brought to

the notice of this court that the GPA coupled with

interest cannot be automatically terminated when the

executor dies as per section 202 of Indian Contract

Act. The coordinate bench of this court in the

judgment of Mohammed @ Podiya Vs Assistant

Commissioner reported in ILR 1993 KAR 2306 has

held at Para 5 as under;-

5. Section 202 of the Contract Act provides that where the agent has himself an interest in the property which forms the subject matter of the agency, the agency cannot in the absence of any express condition be terminated to the prejudice of such interest. The principle is that when an agreement is entered into on a sufficient authorisation whereby an authority is given for the purpose of giving some benefit to the donee of the authority such an authority is irrevocable. An authority coupled with interest is not determined by death, insanity or bankruptcy of the principal where the agent made advances to the principal and is authorised to sell at best price and recoup advances made by him, the agency is one coupled with interest and is irrevocable. Where all the rights and liabilities under a contract were made over by a power-of-

attorney, such power is an agency coupled with interest.

19. In view of the judgment, once the GPA

holder, executor of the GPA dies when the GPA was

coupled with interest, it will not terminate as per

section 202 of the Indian Contract Act, therefore after

death of the Narayanappa, the GPA will not terminate

automatically and subsequently the father of the

plaintiff who is a GPA holder sold the property to the

plaintiff by executing the sale deed and GPA was

already acted upon. Therefore, once GPA was acted

upon and property was sold by the GPA holder to 3rd

party, once again the defendant do not have any right

to claim over the property, which was already sold by

the GPA holder on behalf of the father of the defendant

No.2.

20. Though the respondent counsel also relied

upon the judgment of Hon'ble Supreme Court in the

case of Shakeel Ahmed Vs Syed Aklaq Hussain,

reported in 2023 SCC OnLine SC 1526 where the

Hon'ble Supreme Court once again reiterated that the

Suraj Lamps case and has held the GPA sale is not

permissible and it is not valid sale, in the eye of law,

there is no 2nd opinion in this regard. But here in this

case, based upon the GPA, the Chinnappa who is GPA

holder already sold the property to the plaintiff.

Therefore, once the property is sold, the plaintiff

becomes the owner of the property and merely

defendant taken contention that his father had not

executed the sale deed or the agreement etc., forging

the signature and forging the seal of the notary, but

without evidence from the notary and relevant expert

opinion, the contention of the defendant cannot be

acceptable.

21. Therefore, I am of the view the plaintiff was

successful in proving the case that he is the owner of

the suit schedule property for having purchased on

12.10.2009 executed by Chinnappa as GPA holder of

the Narayanappa, the father of the defendant DW1 and

thereafter, he has put up the construction, which

reveals from the revenue record and obtained the

electricity connection. Whereas DW1 says it is vacant

land and DW2 says it is house constructed and there is

contradictory between their evidence. On the other

hand, once the father of defendant No.2 and husband

of defendant No.1, already sold the property long back

in the year 1988, by way of GPA and agreement of sale

and received entire sale consideration. Thereafter, the

GPA holder executed the sale deed in favour of the

plaintiff. Such being the case, after death of the

Narayanappa the defendant were claiming property as

legal heirs, which is not permissible. That apart, while

putting up construction by the plaintiff 's father, on the

suit schedule property, the defendant have not

objected the same. Even Narayanappa was also not

opted during his lifetime, but taking advantage of the

death of the Narayanappa, the father of the defendant

No.2, they have filed the suit. The electricity

connection, photograph, tax paid receipts khatha

extract, revenue documents supports the claim of the

plaintiff, that he is in possession of the suit schedule

property by virtue of sale deed. Even the electricity

service was obtained by the plaintiff's father as per

Ex.P22 on 29.5.2000 long back in the name of the

plaintiff's father Chinnappa and during the lifetime of

the Narayanappa. If at all the suit schedule property

was not sold, he could have obstructed the plaintiff's

father while putting up construction and getting the

electricity connection.

22. Even on perusal of the Ex.P24 and Ex.P25,

the defendant No.1 trying to change the khatha in

respect of schedule property, but they refused to issue

the khatha in the name of the defendant. On the other

hand, the electricity connection, tax paid receipts, all

shows that the plaintiff is in possession and enjoyment

of the property and electricity connection was obtained

in 2000 much prior to the death of Narayanappa, the

husband of defendant No.1. Such being the case, after

death of Narayanappa claiming the property itself is

interference by the defendant over the suit schedule

property which is in possession and enjoyment of the

plaintiff. Therefore, I answered the point No.2 against

the defendant and in favour of the plaintiff. The trial

court without proper appreciation of evidence on

record comparing the signature under Section 73 of

the Evidence Act is against the principles laid down by

the Hon'ble Supreme Court and without referring the

admitted and disputed signature jumped to the wrong

conclusion that the signature at Ex.P6 and Ex.P7 were

forged, is not correct and without examination

Lalithamma notary and without previous specimen

notary seal and only based upon subsequent 1997

rules holding that the seal of the notary was forged, is

not correct. The trial court also not given any findings

that the GPA cannot be terminated, which was coupled

with interest even if the executor dies as per section

202 of the Indian Contract Act. Therefore, I am of the

view the judgment passed by the trial court in favour

of the defendant and dismissing the suit of the plaintiff

cannot be acceptable and required to be reversed as it

is not in accordance with law.

Accordingly, I proceed to pass the following

order:

Both RFA No.743/2016 and RFA No.744/2016 are

allowed.

The judgment and decree passed in O.S.

No.7800/2010 by the XXII Additional City Civil and

sessions Judge Bangalore dated 1.4.2016 is hereby set

aside. The suit is dismissed.

The judgment of dismissal passed by the same

court in O.S. No.7653/2010 dated 1.4.2016 is set

aside. The suit of the plaintiff is decreed with cost.

The plaintiff Sri C.Krishna is declared as owner

and in possession of the suit schedule property.

The defendant Nos.1 and 2 herein and any

person claiming under the defendants are hereby

permanently restrained from interfering with the

peaceful possession and enjoyment of the suit

schedule property.