Madras High Court

K.Shanmugavel vs R.Veerappan on 8 August, 2022

                                                                              C.R.P(MD)No.216 of 2018

                                  BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                  Dated: 08.08.2022

                                                        CORAM:

                                     THE HONOURABLE MR.JUSTICE B.PUGALENDHI

                                            C.R.P(MD)No.216 of 2018
                                                      and
                                             CMP(MD)No.918 of 2018

                1.K.Shanmugavel

                2.S.Ramalakshmi                                       ... Petitioners
                                                   Vs

                R.Veerappan                                           ... Respondent

                PRAYER: Civil Revision Petition is filed under Article 227
                of      the        Constitution   of    India,   to    call    for   the    records
                relating to the order dated 21.09.2017 in I.A.No.72 of 2017
                in O.S.No.201 of 2014 on the file of the District Munsif
                Court, Periyakulam and set aside the same and allow the
                present civil revision petition.
                                        For Petitioners      : Mr.A.Sivasubramanian
                                        For Respondent       : Mr.B.Rajes Saravanan


                                                         ORDER

This Civil Revision Petition is filed as against the

fair and decreetal order in I.A.No.72 of 2017 in O.S.No.201

of 2014 dated 21.09.2017 passed by the learned District

Munsif, Periyakulam.

https://www.mhc.tn.gov.in/judis C.R.P(MD)No.216 of 2018

2.The petitioners are the defendants in O.S.No.201

of 2014. The respondent has filed the above suit for

declaration and for permanent injunction based on the sale

deed Ex.A2. The suit property belongs to one Subbaiah and

the plaintiff is the brother of the said Subbaiah.

The petitioners/ defendants claim title over the suit

schedule property after the demise of Subbaiah that the

Will was executed in their favour. Both plaintiffs and the

defendant are relying upon a Will on the suit schedule

property.

3.The petitioners / defendants has filed

an interlocutory application in I.A.No.72 of 2017 to

compare the signature of Subbaiah found in Ex.A2 Will, with

the admitted signature found in Ex.A1, which is a sale deed

executed by Subbaiah and his brother. The said application

was dismissed by the trial Court that the onus of proving

the Will Ex.A2 lies only on the plaintiff and Ex.A1 is not

a contemporaneous document. Aggrieved over the same,

the present revision petition is filed.

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4.The entire case is based on the document Ex.A2.

The suit is in the trail stage. PW1 alone has been

examined. The petitioners/ defendants have filed the

interlocutory application at the earliest point. No doubt

that the responsibility of the defendants arises only when

the plaintiffs proves the Will Ex.A2 in the manner known to

law. However this application has been filed by the

petitioners/ defendants. According to the petitioners there

is no other contemporaneous document available with the

petitioners except Ex.A1, which is the registered document

of the year 1990, dated 07.03.1990 and it is also relied on

by the plaintiff. Therefore they have prayed for comparing

the signature of Subbaiah found in Ex.A2 with the signature

found in Ex.A1.

5.The learned Counsel further submits that if any

other contemporaneous document is produced by the

plaintiff, the petitioners are ready to compare it.

The petitioners have also relied on the decision of the

Hon'ble Full Bench of a High Court in Bande Siva Shankara

Srinivasa Prasad Vs. Ravi Surya Prakash Babu and Ors

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reported in 2016 (2) CTC 481, wherein it has been held as

follows:

“36.We accordingly answer the reference

as under:

It is essentially within the judicious discretion of the Court, depending on the individual facts and circumstances of the case before it to seek or not to seek expert opinion as to the comparison of the disputed handwriting signature with the admitted handwriting signature under Section 45 of the Indian Evidence Act, 1872. The Court is however not barred from sending the disputed handwriting signature for comparison to an expert merely because the time gap between the admitted handwriting and the disputed handwriting signature is long. The Court must however endeavour to impress upon the petitioning party that comparison of the disputed handwriting signatures with the admitted handwriting signatures separated by a time lag of 2 to 3 years would be desirable so as to facilitate expert comparison in accordance with satisfactory standards. That being said there can be no hard and fast rule about this aspect and it would ultimately be

https://www.mhc.tn.gov.in/judis C.R.P(MD)No.216 of 2018

for the expert concerned to voice his conclusion as to whether the disputed handwriting signature and the admitted handwriting signature are capable of comparison for a viable expert opinion. The view expressed by the Division Bench in Janachaitanya Housing Ltd Vs Divya Financiers, 2008 (3) ALT 409 (DB) as to the stage of the proceedings when an application can be moved by a party under Section 45 of the Indian Evidence Act, 1872, continues to hold the field and there is no necessity for this Full Bench to address that issue.”

6.The learned Counsel for the respondent submits that

the respondent/ plaintiff filed the suit to declare the

Will Ex.A2 as valid. The Will can be established by

examining the arrestors of the Will and it is not required

to compare the admitted signature by the experts.

The expert's evidence is a weak piece of evidence and it is

not the way to prove a Will. The learned Counsel further

submits that the signatures have to be compared with the

signature of a contemporaneous document. However, Ex.A1

partition deed is of the year 1980 and Ex.A2 Will is of the

https://www.mhc.tn.gov.in/judis C.R.P(MD)No.216 of 2018

year 2010, which is executed nearly after thirty years

from date of the partition deed.

Therefore Ex.A2, cannot be considered to be a

contemporaneous document. The learned Counsel also relied

on a judgment of this Court in Kandasamy Vs. S.Noor

Mohammed and ors [CRP(MD)No.1392 of 2014, dated

24.11.2017], wherein this Court has held as follows:

“8.It is admitted by both learned Counsel for the petitioner as well as respondent that the suit property was jointly purchased by both the petitioner as well as respondent vide sale deed dated 19.11.2009. The petitioner is claiming to be in possession of the property based on the lease cum sale agreement. The respondents denied the execution of the lease cum sale agreement. According to the petitioner, the signature is not contemporaneous signature.

Sale deed is dated 19.11.2009 whereas lease cum sale agreement is dated 15.04.2011. An admitted signature within a period of three years from the disputed signature can be compared to obtain opinion of handwriting expert. The judgment relied on by the learned Counsel for the petitioner do not advance the case of petitioner on the facts of present case and the judgment

https://www.mhc.tn.gov.in/judis C.R.P(MD)No.216 of 2018

relied on by the learned Counsel for respondent is applicable to the facts of the present case. In such circumstances, I do not find any irregularity or illegality in the order impugned in this revision warranting interference by this Court.”

7.This Court has considered the rival submissions and

perused the materials placed on record.

8.The suit is filed for declaration of the Will

executed by Subbaiah, which is also marked as Ex.A2, is a

valid document. When the plaintiff evidence was underway,

the petitioners have filed the interlocutory application

for comparing the signature found in Ex.A2 with the

admitted signature of Subbaiah in a registered partition

deed, which is also relied on by the plaintiff in Ex.A1,

dated 07.03.1990. No doubt when the plaintiff has relied on

a Will, the onus lies on the plaintiff to establish a Will

in the manner known to law. The Will can be proved by