Karnataka High Court
Somappa S/O Gnagadharappa Rotti vs Sanganabasappa S/O Doddabasappa ... on 18 September, 2025
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WP No. 101096 of 2022
HC-KAR
IN THE HIGH COURT OF KARNATAKA,
AT DHARWAD
DATED THIS THE 18TH DAY OF SEPTEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL
WRIT PETITION NO. 101096 OF 2022 (GM-CPC)
BETWEEN:
SOMAPPA S/O. GANGADHARAPPA ROTTI,
AGE: 54 YEARS,
OCCUPATION: BUSINESS/AGRICULTURE,
R/O. PANCHAKSHARI NAGAR,
NEAR K. H. PATIL STADIUM, GADAG.
...PETITIONER
(BY SRI. M. M. PATIL, ADVOCATE)
AND:
DODDABASAPPA SANNABASAPPA
HONNAPPANAVAR, SINCE DIED BY LRS.
Digitally signed by
1. SANGAPPA
CHANDRASHEKAR
LAXMAN S/O. DODDABASAPPA HONNAPPANAVAR,
KATTIMANI
Location: High AGE: 58 YEARS, OCCUPATION: AGRICULTURE,
Court of Karnataka,
Dharwad Bench R/O. YELISHIRUR VILLAGE,
TALUK/DISTRICT: GADAG-582120.
2. NINGAPPA
S/O. DODDABASAPPA HONNAPPANAVAR,
AGE: 42 YEARS, OCCUPATION: AGRICULTURE,
R/O. YELISHIRUR VILLAGE,
TALUK/DISTRICT: GADAG-582120.
3. MALLAPPA
S/O. DODDABASAPPA HONNAPPANAVAR,
AGE: 36 YEARS, OCCUPATION: AGRICULTURE,
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R/O. YELISHIRUR VILLAGE,
TALUK/DISTRICT: GADAG-582120.
4. SMT. VIJAYA W/O. CHANNABASAPPA
HONNAPPANAVAR,
AGE: 52 YEARS,
OCCUPATION: HOUSEWIFE,
R/O. YELISHIRUND VILLAGE,
TALUK/DISTRICT: GADAG-582101.
5. SMT. RENUKA W/O. ASHOK KADAPPANAVAR,
AGE: 47 YEARS, OCCUPATION: HOUSEHOLD,
R/O. YELISHIRUND VILLAGE,
TALUK/DISTRICT: GADAG-582120.
6. SMT BASAMMA W/O. BASAVARAJ ROTTI,
AGE: 45 YEARS, OCCUPATION: HOUSEHOLD,
R/O. MAGADI VILLAGE,
TALUK: SHIRAHATTI,
DISTRICT: GADAG-582120.
7. SMT. NAGAMMA W/O. SIDDAPPA HULAGOOR,
AGE: 52 YEARS, OCC: HOUSEHOLD,
R/O. YELISHIRUR VILLAGE,
TALUK/DISTRICT: GADAG-582120.
...RESPONDENTS
(BY SRI. H. N. GULARADDI, ADV. FOR R1 TO R7)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND
227 CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OR
ORDER OR DIRECTION IN THE NATURE OF CERTIORARI TO SET
ASIDE THE IMPUGNED ORDER DATED 15.03.2021 MADE IN
O.S.NO.43/2009 ON I.A.NO.18, PASSED BY HON'BLE
ADDITIONAL SENIOR CIVIL JUDGE, GADAG AT ANNEXURE-G
CONSEQUENTLY BY ALLOWING THE I.A.NO.18 FILED BY THE
PETITIONER AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS
UNDER:
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ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL)
This petition is filed seeking following reliefs:
"a. Issue a writ or order or direction in
the nature of certiorari to set aside the
impugned order dated 15.03.2021 made in
O.S.No.43/2009 on I.A.No.18, passed by
Hon'ble Additional Senior Civil Judge,
Gadag, at Annexure-G, consequently by
allowing the I.A.No.18, filed by the
Petitioner; and
b. Issue any other writ or direction as
this Hon'ble Court deems fit and proper in
the facts and circumstances of the case, in
the ends of Justice and Equity."
2. Sri.M.M.Patil, learned counsel appearing for the
petitioner submits that the petitioner has filed a suit for
declaration and permanent injunction in respect of the suit
schedule property and the relief of declaration is sought based
on the will dated 15.08.1985. It is submitted that after
conclusion of the trial the petitioner filed an application seeking
for appointment of an expert to carry out scientific investigation
to compare the signatures of the deceased Smt.Gauramma as
appearing in Ex.P1 i.e., Will dated 15.08.1985 and Ex.P31, the
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admitted signature of the deceased Smt.Gouramma. However,
the trial Court under the impugned order dismissed the
application on the ground that the Court has a power to compare
the signatures and record the finding. It is submitted that the
respondents are denying the Will, though the petitioner/plaintiff
places best of the evidence before the trial Court to prove the
Will. It is further submitted that the expert input would aid the
trial Court in deciding the dispute between the parties. It is also
submitted that the finding of the trial Court that it can compare
the signatures as per Section 73 of the Indian Evidence Act,
1972 (for short 'the Act') is impermissible as per the law laid
down by this Court. In support of his contentions he placed
reliance on the decision of this Court in the case of
G.V.NARASIMHAMURTHY v. C.GOPAL AND OTHERS1 and in
the case of SMT.KAMALA AND OTHERS v. SMT.RAJOOVI
PADMAPPA SINCE DEAD BY LRS2. Hence, he seeks to allow
the application for appointment of an expert.
HCR 2020 Kant. 1040
2015 (3) KCCR 2113
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3. Per contra, Sri.H.N.Gularaddi, learned counsel
appearing for the respondents supports the impugned order of
the trial Court and submits that the trial Court has taken note of
the fact that the similar application was filed in IA.No.17 which
came to be rejected. Hence, further entertaining such an
application would not arise. It is further submitted that there are
no admitted signature of the deceased Smt.Gouramma, hence,
question of comparing the signatures with Ex.P31 would not
arise. It is also submitted that the primary burden is on the
plaintiff to prove the Will by adducing the evidence and if there is
any dispute with regard to the signature, the trial Court would
exercise the power under Section 73 of the Act and compare the
signatures. Hence, he seeks to dismiss the petition.
4. I have heard the arguments of the learned counsel
for the petitioner, the learned counsel for the respondents and
meticulously perused the material available on record. I have
given my anxious consideration to the submissions advanced on
both sides.
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5. The petitioner filed OS.No.43/2009 for a relief of
declaration and permanent injunction against the respondents
and the relief of declaration is based on the Will dated
15.08.1985. The records indicate that the respondents defended
the suit by denying the execution of Will by Smt.Gouramma in
favour of the plaintiff. The parties to the proceedings adduced
the evidence, thereafter, the petitioner filed an application under
Order XXVI Rule 10A r/w Section 151 of the Code of Civil
Procedure, 1908 (for short 'CPC') seeking for appointment of an
expert to carry out the scientific investigation to compare the
signatures of the deceased Smt.Gouramma appearing on Ex.P1,
the disputed Will and the admitted signatures of the deceased
Smt.Gouramma found at Ex.P31, which is the deposition of
Smt.Gouramma in OS.No.302/1993. The trial Court under the
impugned order rejected the same on the ground that the trial
Court can compare both the signatures and record the finding. In
my considered view, the trial Court has committed a grave error
for the reason that the primary contention of the petitioner is
that the deceased Smt.Gouramma executed a Will dated
15.08.1985 and based on such a Will, a declaration is sought.
The material on record indicates that the petitioner in order to
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prove the Will adduced the evidence and laid the foundation. The
respondents denied the Will in its entirety. The petitioner is
making an attempt to prove the Will and the signature on the
said Will which is marked as Ex.P1 in the proceedings, by way of
expert's view on the point. The records indicate that the
deceased Smt.Gouramma has deposed in OS.No.302/1993,
which according to the petitioner is the admitted signature and if
the said signature is in the judicial proceedings, the same is
required to be considered as the admitted signature. By
comparing the signature on Ex.P31 and the signatures on Ex.P1,
the alleged Will, it would help the trial Court to answer the issues
framed in the pending suit.
6. The Division Bench of this Court in the case of
G.V.Narasimhamurthy referred supra at paragraph Nos.22 and
23 held as under:
"22. Section 45 of the Act relates to 'Opinion of
experts'. Section 73 of the Act contemplates that,
any signature, writing, seal, finger print impression is
that of a person by whom it purports to have been
made, any signature, finger print impression
admitted to have been made by that person may be
compared by the court with the one which is to be
proved. In the absence of any application filed by the
parties to ascertain the genuineness of the
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signature/finger print impression of the parties in the
Exs.P1 and P2, the contention of the learned counsel
for the plaintiff that Section 73 of the Act would have
been invoked by the Trial Court to compare the
disputed signatures with the admitted or proved
signatures/finger print impression also does not hold
any water. The Hon'ble Apex Court in the case of
Thiruvengadam Pillai Vs. Navaneethammal and
another, (2008) 4 SCC 530 placing reliance on the
judgment of the Hon'ble Apex Court in the case
of State (Delhi Administration) Vs. Pali Ram,
(1979) 2 SCC 158 referring to the decision of Murari
Lal Vs. State of M.P., (1980) 1SCC 704 and Lalit
Popli Vs. Canara Bank, (2003) 3 SCC 583 has held
that, while there is no doubt that court can compare
the disputed handwriting/finger impression with the
admitted handwriting/signature/finger impression,
such comparison by court without the assistance of
any expert, has always been considered to be
hazardous and risky. When it is said that there is no
bar to a Court to compare the disputed finger
impression with the admitted finer impression, it goes
without saying that it can record an opinion or finding
on such comparison, only after an analysis of
characteristics of the admitted finger impression and
after verifying whether the same characteristics are
found in the disputed finger impression. Where the
courts finds that the disputed finger impression and
admitted thumb impression are clear and where the
court is in a position to identify the characteristics of
fingerprints, the court may record a finding on
comparison, even in the absence of an expert's
opinion. But where the disputed thumb impression is
smudgy, vague or very light, the court should not
hazard a guess by a casual perusal. It is observed
that the decision in Murari Lal (supra), should not
be construed as laying a proposition that the Court is
bound to compare the disputed and admitted finer
impressions and record a finding thereon, irrespective
of the condition of the disputed finger
impression. Thus, the court should avoid reaching
conclusion based on routine glance or perusal. The
said dictum applies to signature, writing or seal as
well."
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"23. In the case of S.B.Ittigi and another
(supra), the Division Bench of this Court referring to
the various judgments of the Hon'ble Apex Court has
observed that a combined reading of Section 73 of
the Act and the decisions referred to above makes it
clear that the Court has the power to compare the
disputed signature with the admitted signature.
However, it is categorically observed that when the
Court entertains a slightest doubt with regard to the
signatures, then the Court shall hesitate to compare
the signature particularly in criminal matters. It was
a case of a Will where the signature of the testator
was disputed. Both the plaintiff and defendants
therein had not taken any opinion of the handwriting
expert. In that context the Trial Court by comparing
the disputed and the undisputed signature of testator
had come to the conclusion that the words, style and
letters in both the documents were exactly more or
less similar if not identical. Under such
circumstances, it has been held that the Court has
the power to compare the disputed signature with the
undisputed signature under Section 73 of the Act. In
the present case, the disputed signature of defendant
Nos.1 and 2 being vague and in different vernacular
languages, it was obligatory on the part of the
plaintiff to seek the expert's opinion to prove the said
documents [Exs.P1 and P2]. In the absence of such
exercise done by the plaintiff, relying on Section 73
of the Act, to shift the burden on the
Court/defendants appears to be unrealistic but to
shirk the burden of proving the documents.
As aforesaid by the Hon'ble Apex Court, the
Judge as a matter of prudence and caution, hesitate
to base his finding with regard to the identity of a
handwriting which forms the sheet anchor of the
prosecution case against a person accused of an
offence, solely on the comparison made by himself. It
is therefore, not advisable that a Judge should take
upon himself the task of comparing the admitted
writing 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.
[State (Delhi Administration) vs. Pali Ram,
(1979) 2 SCC 158)]. This view was reiterated in
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Bharathan vs. K.Sudhakaran, (1996) 2 SCC 704
and again in Ajit Savant Majagavi vs. State of
Karnataka, (1997) 7 SCC 110. Though the Court has
the power to compare the signature, as a matter of
extreme caution and judicial sobriety, the Court
should not normally take upon itself the responsibility
of comparing the disputed signature with that of the
admitted signature or handwriting and in the event of
slightest doubt, it should be left to the wisdom of
experts. As such, the view of the Trial Court that the
Court should hesitate to proceed with Section 73 of
the Act cannot be faulted with."
7. This Court in the case of Smt.Kamala and Others
referred supra at paragraph No.23 held as under:
"23. It is true that the Court is the expert of
experts as per Section 73 of the Evidence Act.
What is laid down by the Hon'ble Supreme Court in
the case of State (Delhi Administration) v. Pali
Ram, ((1979) 2 SCC 158 : AIR 1979 SC 14), while
dealing with the provisions of Section 73 of the
Evidence Act is that prudence demands that the
Court shall not take upon itself the responsibility of
comparing the admitted signature or handwriting
with the disputed handwriting or signature, unless
a report is obtained from an expert. This is
essential because such an exercise requires
scientific analysis. In this view of the matter, the
approach of the first appellate Court in accepting
Ex.P13 as a proved document is incorrect and
improper. The relevant discussion is found in
paragraph 29 of the judgment and it is extracted
below:
'29. The matter can be viewed from
another angle, also. Although there is no
legal bar to the judge using his own eyes
to compare the disputed writing with the
admitted writing, even without the aid of
the evidence of any handwriting expert,
the judge should, as a matter of
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prudence and caution, hesitate to base
his finding with regard to the identity of
a handwriting which forms the sheet-
anchor of the prosecution case against a
person accused of an offence, solely on
comparison made by himself. It is,
therefore, not advisable that a judge
should take upon himself the task of
comparing the admitted writing with the
disputed one to fond out whether the
two agree with each other : and the
prudent course is to obtain the opinion
and assistance of an expert.'"
8. Taking note of the enunciation of law laid down by
this Court, I am of the considered view that the finding recorded
by the trial Court under the impugned order that it would
exercise its power under Section 73 of the Act to compare the
signatures would be an erroneous finding and it may lead to
complications. In my considered view the expert's opinion with
regard to the signature of the deceased Smt.Gouramma would
aid the trial Court in deciding the suit effectively. The trial Court
has incorrectly recorded the finding that the application filed in
the earlier occasion in IA.No.17 is rejected. It is noticed that the
said application is filed by the defendants, hence, there cannot
be any res-judicata against the petitioner. Hence, I proceed to
pass the following:
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ORDER
i. The writ petition is allowed.
ii. The impugned order dated
15.03.2021 passed on IA.No.18 in
O.S.No.43/2009 by the Additional Senior Civil
Judge, Gadag is hereby set aside.
iii. Consequently, IA.No.18 filed by the
petitioner under Order XXVI Rule 10A of the
CPC is allowed.
iv. The trial Court is directed to refer
Ex.P1 and Ex.P31 to the handwriting expert.
No orders as to costs.
Sd/-
(VIJAYKUMAR A.PATIL)
JUDGE
ABK /CT-AN
