Krishnamurthy vs Subramaman

S. Rajeswaran, J.—The Second Defendant in O.S No. 111/2005 before the District Munsif and Judicial Magistrate, Nanrulam is the Revision Petitioner before thus Court. He is aggrieved by the Order of the Trial Court dated 9.10.2009 made in I.A. No.155 of 2009 in the above Suit. O.S. No. 111/2005, allowing the Interlocutory Application filed by the Plaintiffs, directing an Expert in Handwriting to compare the admitted signature of Dhanapakiyam with the disputed signature in the alleged Will, so that the Court will be in a position to come to a correct and just conclusion regarding the execution of the alleged Will by the said Dhanapakiyam in favour of the Second Defendant.

The Respondents 1 & 2 herein, as Plaintiffs, filed O.S. No. 111 of 2005 for a Judgment and Decree, declaring that the Plaintiffs and the First. Defendant are the Legal Heirs of the deceased Dhanapakiyam and are jointly entitled to succeed to her estate, namely, the Suit properties, for a direction directing the Second Defendant to deliver possession of the Suit properties to the Plaintiffs and to pay a sum of Rs. 10,000/-, being the past mesne profits and also the future profits.

According to the Plaintiffs, the Suit properties are owned by Dhanapakiyam, who is the wife of the Plaintiffs and the first Defendant''s eldest brother Singaravelu. Singaravelu died in the year 2003 and his wife Dhanapakiyam died on 25.6.2005. They had no issues. The Second Defendant is a stranger to the family and he is a neighbour only to the above said Dhanapakiyam.

When Dhanapakiyam died on 25.6.2005, the Second Defendant/neighbour informed the death belatedly and he started claiming that the Suit Schedule properties were bequeathed to him by Dhanapakiyam by a Will dated 4.4.2005. According to them, the Second Defendant/Revision Petitioner fabricated, forged and created the Will and therefore, excepting them and the First Defendant, no one has got any right to claim the Suit Schedule properties. Hence, they filed the above Suit for the aforesaid reliefs.

Written Statement was filed by the Second Defendant wherein he contended that on 4.4.2005 when Dhanapakiyam was in a good frame of mind bequeathed the property to him and he, who took care of her during her last days. The Revision Petitioner/Second Defendant further denied that he is a stranger to the family and contended that he is a very close relative of the deceased Dhanapakiyam. He also made a Counter-Claim by praying for a Permanent Injunction restraining the Plaintiffs in the Suit from interfering with his peaceful possession and enjoyment of the Suit Schedule properties.

The trial had already commenced and the First Plaintiff was examined as PW1 and the Second Defendant was also examined as DW1 The Second Defendant produced the Will dated 4.4.2005 and marked it as Ex.B17 Since according to the Plaintiffs Ex. B17-Will was a forged document, they filed I.A. No.155 of 2009 in O.S. No. in of 2005 to compare the admitted signatures of Dhanapakiyam in the alleged Will The Second Defendant/Revision Petitioner filed a Counter and seriously opposed the said Interlocutory Application on the ground that the Plaintiffs wanted to compare the disputed signatures in the Will with the admitted signatures in Ex. B2 & Ex.B16. According to the Second Defendant/Revision Petitioner, the signatures found in Ex.B2 & Ex.B16 were not admitted by him. It was further contended by the Revision Petitioner/Second Defendant that the document should not be taken out of the Court and the signatures could be compared by the Court itself in the Court.

By Order dated 9.10.2009, the Trial Court allowed the Application and appointed an Advocate Commissioner to take the three documents i.e. Ex.B2, Ex.B14 & Ex.B1 " to the Forensic Department, Chennai and to get the opinion of the experts Aggrieved by the Order dated 9.10.2009 made in I.A. No.155 of 2009, the Second Defendant in the Suit filed the above Revision Petition under Article 227 of the Constitution of India.

Heard the learned Counsel appearing for the Revision Petitioner and the learned Counsel appearing for the Respondents 1 & 2/the Plaintiffs. I have also gone through the entire documents made available on record including the Order passed by the Trial Court in I.A. No. 155/2009.

The learned Counsel appearing for the Revision Petitioner contends that the Trial Court committed an error in directing the Advocate Commissioner to take the documents out of the Court and the Trial Court ought to have summoned the Forensic Expert to come to the Court and to verify the signatures found in the Will. Hence, she prayed for allowing the Revision Petition. In support of her contention, she relied on the following Judgments:

(1) N. Balaama Reddy v. Sarathy Enterprises by its Managing Partner T.V. Ramona Reddy and five others, 1994 (2) LW 287,

(2) Saroja and others v. Poorna Mariyal and another, 2002 (1) MLJ 151, and

(3) N. Chinnasamy v. P.S. Swaminathan, 2006(4) CTC 850.

Per contra, the learned Counsel appearing for the Respondents 1 & 2 submits that in permitting the documents to go out of the Court is a general proposition and under certain circumstances, the documents could be permitted to be taken out of the Court, when the expert could not bring the required equipments to the Court to compare the signatures. In support of his contention, the learned Counsel for the Respondents 1 & 2 relied on the following Judgments:

(1) Utham Prabhat Industries by Partner, Seshamal C. Bafna v. P. Subramaniam, Proprietor, Sridevi Products, etc., 1996 (1) LW 255.

(2) R. Elango v. K. Dhansekaran and others, 2008 (8) MLJ 299.

I have considered the rival submissions carefully with regard to facts and citations.

In N. Balaam a Reddy v. Sarathy Enterprises by its Managing Partner, T.V. Ramana Reddy and five others, 1994 (2) LW 287 (cited supra), a Division Bench of this Court held as follows:

"5. There is no explanation as to why the Appellant did not seek to have the documents examined by an Expert when the Suit was pending in the Trial Court nor is there any explanation for not filing the Application for nearly eleven years after the tiling of the present Appeal Apart from that, the prayer in the Petition is not sustainable, as it has been consistently held by this Court that no document can be sent out of Court to be examined by any Expert in T.A. Narasimhan v. V. Narayana Chettiar, 1968 (2) MLJ 48, a Single Judge of this Court has held :

"The Court below was clearly in error in acceding to this extraordinary request of the Plaintiff. When the document is sent to the expert it is expected that he will submit the Report and he will also be examined either on commission or in open Court at the instance of the party concerned. It must not be overlooked that the handwriting expert is after ah a witness of a particular party, and the expert could occupy no other role except that of a witness on the side of the Defendant in this case. In these circumstances it is impossible to justify the Order of the Lower Court compelling the Defendant to choose a witness according to the dictation of the Plaintiff.

It frequently happens that such applications for examination of the documents by Handwriting Experts are made at a late stage protracting and holding up the proceedings. In the instant case the Court below failed to appreciate that an old Suit of 1962, is being protracted by such applications When the disputed documents were sent to the Handwriting Expert for comparison on the earlier occasion one would expect the Defendant to send as many admitted signatures as lie may desire, so that the examination and scrutiny of the documents would be finished once and for all. Encouraging such repeated Applications would only protract and delay the trial of the Suit and should be discountenanced. When the matter goes back to the Subordinate Judge he must consider whether in his discretion this indulgence should be given to the Defendant at this belated stage.

Repeated instances have come to the notice of this Court when applications are lightly made for sending original documents on which Suits are filed, like Promissory Notes and Mortgage Bonds, to the Handwriting Experts, the Court itself losing the custody of the documents. Receipts containing signatures, the genuineness of which are in dispute are similarly sent to Handwriting Experts. I am clearly of the opinion that this is a highly objectionable and a very bad procedure. Under no circumstances should a Court permit or allow the documents to go out of its custody, as such an evil practise is attendant with various risks which are too obvious to be mentioned. In the case of enquiries by Commissioners of proceedings by Receivers, who are officers of Court, they are permitted to have access to documents, as they are under the direct control, supervision and jurisdiction of the Courts which appoint them, and there is, thus, ample safeguard when original documents are taken by the Commissioners or the Receivers. In my view the proper procedure in such cases would be only to permit the Handwriting Expert to inspect the document in the Court premises in the presence of some responsible officer of the Court, and also if necessary permit the expert to have photographic copies of documents in the presence of the responsible officer of the Court. Any lapse in taking the necessary safeguards in this direction may result in miscarriage of justice, besides creating complications."

We are entirely in agreement with the view expressed by the learned Single Judge in that case Hence, the prayer to send the documents to a Handwriting Expert cannot be granted."

In Saroja and others v. Poorna Mariyal and another, 2002 (1) MLJ 151 (cited supra), a learned Single Judge of this Court held as follows:

"9. Now, the learned Counsel for the Revision Petitioners seeks permission to send Exs.B2 & B23 to the Handwriting Expert for the purpose of comparison since the First Respondent in the course of evidence has disputed her signatures. The opinion of the Handwriting Expert may not be a conclusive one; but at the same time, it will definitely guide the Court to come to a reasonable conclusion for effective adjudication of the dispute. The sending of original documents is deprecated and under die circumstance, the Handwriting Expert can be permitted to take photographic copies of the documents in the presence of the Officers of the Court and thereafter he can give the opinion. If that is not possible, then the Revision Petitioners themselves can arrange to take photographic copies of the documents containing the admitted signatures as well as the disputed signatures of the First Respondent in the Court in the presence of Court officials and send those copies to the Handwriting Expert for the purpose of comparison and opinion.

For the reasons stated above, the Revision Petition is allowed and the Order passed by the Court below is set aside and the Court below is directed to address the Handwriting Expert to take photographic copies of the documents containing the admitted the disputed signatures of the First Respondent in the presence of a responsible officer of the Court and thereafter, give the opinion. If the Handwriting Expert is not in a position to attend the Court and take photographic copies, then it is open to the Revision Petitioners to arrange a photographer to take copies of the documents in the presence of the officer of the Court and sent the photographic copies of the documents containing the admitted and disputed signatures to the Handwriting Expert for the purpose of comparison and opinion. The Revision Petitioners are directed to meet the entire expenses in carrying out the work. The Trial Court is directed to get the opinion in a period of three months. No costs. Consequently C.M.P. No. 151085 of 2001 is closed."

In N. Chinnasamy v. P.S. Swaminathan, 2006 (4) CTC 850 (cited supra), I had an occasion to go through Section 45 & 73 of the Evidence Act, 1872 and held as follows:

"32 From the above Judgments, the following principles have emerged:

(1) Section 73 of the Indian Evidence Act authorises the Court to compare the disputed signature with the admitted signature in order to come to its own conclusion.

(2) It is always salt-for the Court to take the aid of Handwriting Expert to have the expertise to scientifically compare such handwriting with reasons.

(3) The practise of sending original documents in the custody of the Court''s to the Handwriting Experts is a highly objectionable one and a very bad procedure.

(4) The proper procedure would be to permit the Handwriting Expert to inspect the document in the Court premises itself in the presence of some responsible officers of the Court.

(5) If necessary, the expert may be permitted to have photographic copies of documents in the presence of the responsible officers of the Court.

(6) When examination of the disputed documents with in the Court''s premises, is not possible dim to genuine difficulties expressed by the expert, the Court has to find out tin-alternative way of achieving the object for the purpose of doing justice.

(7) In such circumstances as mentioned above, the application has to be treated as an Application for an appointment of the Commissioner in whose presence the examination of the disputed document has to be conducted by the expert.

(8) When the investigation cannot be conveniently conducted with in the premises of the Court and the same has to be carried out in the laboratory of the Forensic Department of the Government of Tamil Nadu, it is necessary to appoint a Commissioner to conduct the investigation of the document in his presence.

(9) Filing Application for examination of documents by Handwriting Expert at a late stage thereby protracting and holding up the proceedings is highly objectionable.

(10) Merely because of the reasons that the Trial Court has by itself compared the admitted signature and the disputed signature invoking Section 73 of the Indian Evidence Act there is no bar or ban for the First Appellate Court for sending the documents to get the Expert Opinion.

(11) Expert Opinions could give much more clarity for arriving at a decision upon the truth and genuineness of a disputed document.

(12) When the Defendant denies the signature in a particular document which is very much relied on by the Plaintiff, it is for the Plaintiff to take steps for examination of the disputed signature by sending the document to a Handwriting Expert."

In Utham Prabhat Industries by Partner, Seshamal C. Bafna v. P. Subramaniam, Proprietor, Sridevi Products, etc., 1996 (1) LW 255 (cited supra), a learned Single Judge of this Court held as follows:

"9. While allowing the Application No.3251/92 for the examination of the disputed documents by an Expert, this Court followed the view expressed by Ramamurti, J. in T.A. Narasimhan v. Narayana Cliettiar not to loose the custody of the documents, by sending the documents outside the Court. In that reported case, the Defendant wanted to send the documents to the private experts, either Dixit or Mahajan, whereas the Plaintiff preferred to send the documents to another Private Expert by name Bhanagay. Those Experts were residing outside Tamil Nadu and therefore, the documents had to be sent to those Private Experts by post and there was risk of losing the original documents during transit also. Therefore, Ramanmrti, J. observed in that case that under no circumstances, should a Court permit of allow the documents to go out of its custody as such act is attendant with various risks, which are too obvious to be mentioned. Bearing this view in mind, Pratap Singh, J. While allowing Application No.3251/92. gave direction to inspect the documents in the Court premises in the presence of the Deputy Registrar (Original Side). When the view of the learned Judge expressed in T.A. Narasimhan v. Narayana Chettiar is followed, his view in lull has to be taken into consideration. The learned Judge, Ramamurti, J. has also observed in the same decision about the Commissioners and Receivers, who are having access to the Court documents. In the view of the learned Judge, by his own expression, in the cases of enquiries by Commissioners or proceedings by Receivers, who are officers of Court, they are permitted to have access to documents as they are under the direct control, supervision and jurisdiction of the Courts, which bind them and there is thus ample safeguard when original documents are taken by the Commissioners or the Receivers. So, the learned Judge has accepted that the documents entrusted with the Commissioners and Receivers are exceptions to the view expressed by him because they are officers to the Court, who are under the direct control and supervision of the Courts. Hence, in the view of the learned Judge, there need not be any'' apprehension to hand over the Court records to the Commissioners. It is only in view of this expression in the above decision, now the Plaintiff-Applicant has filed this Application to appoint a Commissioner to entrust the disputed records with him for the purpose of examining all these documents by the expert. Even though the learned Counsel Mr. Venkatachalapathy repeatedly'' stated that there are risks in sending the documents outside the Court premises on the basis of the view expressed in T.A. Narasimhan v. Narayana Chettiar, the learned Counsel has failed to note the observation about the Commissioners and Receivers, who are officers of the Court. Therefore, even according to the decision relied upon by Mr. Venkatachalapatliy, the documents can be entrusted with the Advocates and Commissioners as they are under the direct control of the Court.

When the very object of examining the disputed documents with in the Court premises is not possible due to the genuine difficulties expressed by the expert, certainly the Court has to find out the alternate way for achieving the object for the purpose of doing justice. Therefore, it cannot be said that the request of the Plaintiff Applicant in this Application, if allowed, will defeat the object of the Order passed in Application No.3251/92.

In the result, Thiru B. Namasivayam, is appointed as Commissioner, in whose presence, the disputed documents have to be examined by the Handwriting Expert, deputed by the Director of the Forensic Science Department, Mylapore, Madras-4 Rs.2,000/- is fixed towards the remuneration of the Commissioner payable to him direct by the Plaintiff/Applicant. The documents can be handed over to the Commissioner for production before the expert for the investigation, subject to the following conditions:

I. The disputed original documents, sought to be examined, shall be photocopied before the Second Assistant Registrar (Original Side) before handing over the same to the Commissioner. These photocopies will be signed by the Second Assistant Registrar and will be retained in the Court along with the case papers.

The Commissioner shall address the Director of the Tamil Nadu Forensic Science Department, Mylapore, Madras, to fix a date and time for the examination of the documents in his presence, as per the Orders of this Court, and after fixing the time, he shall receive the Court records either on the same day or one day in advice, from the Court.

A list will be prepared for the original disputed documents and the documents given for comparison to be delivered to the Commissioner and the same shall be signed by the Advocate Commissioner.

The disputed original documents and the documents given for comparison with the sample signatures or handwritings, will be enclosed in two separate envelopes and sealed in the presence of the Commissioner, who has to acknowledge the contents of the envelopes and also the receipt of the same. These two sealed covers and the letter of requisition of the Second Assistant Registrar (Original Side) with a sample seal, shall be enclosed in another cover, which will also be sealed in the presence of the Commissioner, to whom this cover will be delivered by the Second Assistant Registrar (Original Side).

The Commissioner shall deliver this envelope to the Director, Tamil Nadu Forensic Science Department, Mylapore, Madras, and be present in the place of investigation of this documents throughout to ensure that the examination of the documents, including the photocopying, was done in his presence. After the examination of the documents is over, the office of the Director, Tamil Nadu Forensic Science Department, shall enclose the documents in a sealed cover with their Covering Letter and hand over to the Commissioner, who has to return all the documents received by him to the second Assistant. Registrar (Original Side)

The Director, Tamil Nadu Forensic Science Department, Mylapore, shall send his Report after the investigation, recording his opinion, in a sealed cover, direct to the Second Assistant Registrar (Original Side) of this Court. As fixed originally, the Director, Tamil Nadu Science Department, is entitled to Rs.1,000/- towards his remuneration."

In R. Elango v. K. Dhansekaran and others, 2008 (8) MLJ 299 cited supra), a learned Single Judge of this Court has held as follows:

"11. The proper procedure shall be to summon the expert to inspect the documents in Court in the presence of a Court officer, permit him/her to take Photographs of the document along with signature in admitted documents and secure his Report. It shall not be lawful to permit the expert to take the document away from the custody of the Court: Saroja and others v. Puma Mariyal and another, 2002 (1) MLJ 151; T.A. Norasimhan v. V. Narayanan Chettiar (supra). It may if the expert is unable to come, permit the party to take Photographs of the document containing the disputed signature as well as the admitted signatures in the presence of a Court Officer and send the document for comparison by the expert and for his Report Saroja and others v. Purna mariyal and another (supra); T.A. Narasimhan v. V. Narayanan Chettiar (supra). Another practise, which has been occasionally adopted the appointment of an Advocate Commissioner to take the document from Court to the Handwriting Expert, and secure the latter''s opinion: Chinnappan and another v. Chinnaiiirnal (supra). In all cases, where the expert''s opinion is obtained, examining him as a witness in Court in a sine qua non: State of Gujarat v. Vinaya Chandra, 1967 (1) MLJ (Cri) 442 (SC)."

The Suit has been filed by the Plaintiffs for many prayers winch includes recovery of possession of the Suit Schedule properties from the Second Defendant/Revision Petitioner. The Second Defendant,Revision Petitioner claims that the Suit Schedule properties were bequeathed to him by Dhanapakiyam in the Will dated 4.4.2005, which, according to the Plaintiffs/Respondents 1 & 2 is a fabricated and forged Will.

This Will dated 4 4.2005 was marked on the side of the Second Defendant/Revision Petitioner as Ex.B17. Thereafter, the Respondents 1 & 2 tiled I.A. No. 155/2009 for comparing the signatures found in the disputed Will with the admitted documents. The Court allowed the comparison of signatures and appointed an Advocate Commissioner, who was directed to take Ex.B14, Ex. B2 & Ex.B17 to the Forensic Department in Chennai and produce them before the Department and to get their Report. Even according to the Revision Petitioner, he is not against comparison and he is only opposed to taking the documents out of the Court, winch is evident from Ground No.2 contained in the Memorandum of Civil Revision Petition. In Ground No.2, it is stated that the Trial Court ought to have summoned the Forensic Expert to come to the Court and verified the signature of the Will instead of sending the Will outside the Court as it may lead to tampering the same.

Thus, the Revision Petitioner is not aggrieved, if the signatures are compared, but, he is only opposed to taking the documents out of the Court.

In N. Chinnasamy v. P.S. Swaminathan, 2006 (4) CTC 850 (cited supra), this matter has been elaborately considered by me and the principles that are to be followed have been stated in Paragraph 32 of the Judgment, winch, I have already extracted in the previous Paragraphs.

A perusal of the (Order passed by the Trial Court shows that the learned Judge has straightaway directed the Advocate Commissioner to take the documents out of the Court and to submit them before the Forensic Department without following the principles enumerated in Paragraph 32 of the above Judgment.

Therefore, while upholding the Order of the Trial Court, I direct the Trial Court to follow the elaborate procedures set out in Paragraph 32 of the Judgment reported in N. Chinnasamy v. P.S. Swaminathan, 2006 (4) CTC 850 (cited supra), and to get the comparison work done in the light of the above Judgment Excepting tire above modification, the Order of the Trial Court does not warrant any interference and hence, the Civil Revision Petition is dismissed in the above terms. No costs. Consequently, connected Miscellaneous Petition is closed.