K. NARASIMHA REDDY S/O LATE KRISHNAPPA Vs SRI. A. GOPALA REDDY

Petitioner who is defendant No.1 in

O.S.No.796/2008 is assailing the order passed by II

Additional Senior Civil Judge, Bengaluru Rural District,

Bengaluru dated 04.10.2016- Annexure-N, whereunder

I.A.No.16 filed by him under Order 26 Rule 10-A read

with Section 151 CPC for referring Ex.D-31 namely, Will

dated 23.08.1984 said to contain signatures of plaintiff

(P.W.1) and attestor to the said Will - Smt.

Lakshminarasamma who came to be examined as

D.W.2 for being compared with their admitted

signatures found on Exs.D-29, D-29(a), D-30, D-35, and

D-37 - vakalath, plaint and deposition came to be

dismissed.

Having heard the learned Advocates

appearing for parties in extenso and on perusal of the

pleadings as laid before trial Court and after bestowing

my careful and anxious consideration to the rival

contentions raised, the only point which arises for

consideration is:

"Whether trial Court was justified

in rejecting the application - I.A.No.16

for referring Ex.D.31 for handwriting

expert to seek forensic report".

Respondent Nos. 1 and 2 herein have filed

suit for partition and separate possession of suit

properties contending that they are joint family

properties which belonged to their grand father and on

his demise, properties devolved upon their father late

Appaiah @ Appaiahppa who was enjoying said

properties along with plaintiffs and first defendant''s

father.

First defendant who is the son of Late

Krishnappa has entered appearance on service of suit

summons, filed his written statement and has raised a

plea that suit properties are self acquired properties of

late Sri Appaiah and said Sri Appaiah during his life

time, had executed a Will dated 23.08.1984 in his

favour and as such, by testamentary succession, he has

acquired right and title to the suit properties. On these

grounds, he has sought for dismissal of the suit.

Trial Court by order dated 23.10.2010

framed issues for its adjudication. Parties have gone to

trial and after completion of trial, application in

question came to be filed for comparing signatures of

P.W.1 and D.W.2 as found in the Will dated 23.08.1984

- Ex.D.31 propounded by first defendant. These two

witnesses namely P.W.1 and D.W.2 have stoutly denied

affixing their signatures to the Will- Ex.D.31.

Perusal of the impugned order would

disclose that application - I.A.No.16 came to be

dismissed on the ground that it is filed at a belated

stage and Will -Ex.D.31 has to be proved by the

propounder namely, first defendant under Sections 67

and 68 of Indian Evidence Act, 1872.

At the outset, it requires to be noticed that

reason assigned by trial Court would not stand test of

law inasmuch as, issues framed in the instant suit

would disclose that burden has been cast on the first

defendant to prove the execution of Will dated

23.08.1984- Ex.D.31 alleged to have been executed by

father of plaintiffs and grand father of first defendant

and it is on account of such burden having been cast on

him, first defendant had not only confronted to P.W.1

with his signature as found in the Will -Ex.D.31 in his

cross examination but had also confronted D.W.2 in her

cross examination with her signature. However, both

of them have denied affixing their signatures to the said

Will. It is because of this precise reason, first defendant

has sought for comparing the signatures found in the

registered document Ex.D.31 to be compared with their

admitted signatures. Though first defendant has sought

for comparing their signatures as found in the certified

copies of registered instruments namely, sale deeds, as

rightly pointed out by Sri. Papi Reddy, learned Advocate

appearing for respondents-1 and 2 said exercise cannot

be undertaken by an expert i.e., forensic expert.

In view of the fact that admitted signatures

of P.W.1 and D.W.2 are found in plaint, vakalathnama,

affidavit and depositions respectively, it would be apt

and appropriate to refer the signatures found on Ex.D-

31 namely, Will dated 23.08.1984 for being compared

with the signatures found therein, which first defendant

claims to be the signatures of P.W.1 and D.W.2 with

plaint, vakalathnama etc., since expert opinion that

may be tendered would assist the trial Court in arriving

at a conclusion about execution of the Will. In that

view of the matter, this Court is of the considered view

that in the interest of justice as well as to enable first

defendant to prove issue No.4, interlocutory application

- I.A.No.16 filed under Order 26 Rule 10A CPC deserves

to be allowed.

Hence, I proceed to pass the following:

ORDER

(1) Writ Petition is hereby allowed.

(2) Order dated 04.10.2016 passed on I.A.No.16

by II Additional Senior Civil Judge,

Bengaluru Rural District, Bengaluru in

O.S.NO.796/2008 - Annexure-N is hereby

set aside.

(3) I.A.No.16 filed under Order 26 Rule 10A CPC

Annexure-L is partly allowed and it is hereby

ordered that admitted signatures of P.W.1

found on the plaint, vakalathnama and

affidavit filed in O.S.No.796/2008 be

compared with disputed signatures of P.W.1

found on Ex.D-31. Likewise, signature of

D.W.2 found in the deposition recorded in

O.S.No.796/2008 is ordered to be compared

with disputed signatures of D.W.2 found in

Ex.D-31. For the said purpose viz., scientific

investigation, the application - I.A.No.16-

Annexure-L is hereby allowed and Court

below shall appoint a Forensic Expert after

considering the names furnished by both

parties.

(4) In view of the fact that the respondent-1

and 2 (plaintiffs) having already filed an

application for temporary injunction against

first defendant and same is said to be

pending before trial Court, it shall consider

the same expeditiously, at any rate, within

30 days from today excluding the ensuing

Winter vacation-2017.

All pending applications are consigned to records.