- (1.) THIS civil revision petition has been filed against the fair and decretal order, dated 6.11.2009, made in I.A.No.351 of 2009 in O.S.No.546 of 2004, on the file of the Second Additional Subordinate Court, Coimbatore.
(2.) IT has been stated that the first respondent in the Civil Revision Petition had filed a suit, in O.S.No.546 of 2004, on the file of the Second Additional Subordinate Court, Coimbatore, praying for the relief of partition and separate possession of the properties in question. She had also prayed for the rendition of accounts, for mesne profits and for the appointment of a receiver. After the petitioners had entered appearance in the suit they had filed their written statement, on 22.2.2005, disputing the claims made by the plaintiff in the suit. They had also marked a Will, as Ex.B-18, in support of their claim over the suit properties. The trial in the suit had commenced and P.W.1 had been examined, on 24.1.2007. Thereafter, the evidence of the plaintiff had been closed, on 28.8.2007. After the petitioners had examined their witnesses, the suit had been posted for arguments in the month of October, 2008. Thereafter, the first respondent herein had filed an application, in I.A.No.351 of 2009, to appoint an Advocate Commissioner to take the disputed Will, dated 9.3.1996, marked as Ex.B-18 to a Government Handwriting Expert, for comparison of the signatures of the testator, with the admitted signatures of late P.Velusamy found in the original thumb impression register, as well as in the filing sheet register pertaining to the pathway agreement, dated 21.12.1995. It has been further stated that there was no necessity to get an expert opinion, with regard to the Will in question, as it is for the beneficiary under the Will to prove it, in accordance with the provisions of the Indian Evidence Act, 1872 and the Indian Succession Act, 1925. It has also been stated that the original Will cannot be sent out of the Court, for comparison. Further, irrespective of the opinion given by the expert, the concerned Court is bound to analyse the evidence adduced in respect of the Will, as per Section 63 of the Indian Succession Act, 1925. Instead the trial Court had allowed the application, on 6.11.2009, holding that no prejudice would be caused to the petitioners by sending the Will for an expert opinion.
(3.) THE learned counsel appearing on behalf of the petitioners had relied on the following decisions in support of his contentions. 5.1. In Thiruvengadam Pillai Vs. Navaneethammal and another (2008(4) SCC 530), it had been held as follows: "While there is no doubt that court can compare the disputed handwriting/signature/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 compare the disputed finger impression with the admitted finger impression, it goes without saying that it can record an opinion or finding on such comparison, only after an analysis of the characteristics of the admitted finger impression and after verifying whether the same characteristics are found in the disputed finger impression. THE comparison of the two thumb impressions cannot be casual or by a mere glance. Further, a finding in the judgment that there appeared to be no marked differences between the admitted thumb impression and disputed thumb impression, without anything more, cannot be accepted as a valid finding that the disputed signature is of the person who has put the admitted thumb impression. Where the court 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." 5.2. In Bharpur Singh and others V. Shamsher Singh (2009(3) SCC 687), it had been held as follows: "Keeping in view the nature of proof required for proving a will, Section 90 of the Evidence Act, 1872, has no application. A will must be proved in terms of Section 63(c) of the Succession Act, 1925, and Section 68 of the Evidence Act, 1872. In the event the provisions thereof cannot be complied with, the other provisions contained therein, namely, Sections 69 and 70 of the Evidence Act providing for exceptions in relating thereto would be attracted. Compliance with statutory requirements for proving an ordinary document is not sufficient, as Section 68 of the Evidence Act postulates that execution must be proved by at least one of the attesting witness, if an attesting witness is alive and subject to the process of the court and capable of giving evidence." 5.3. In N.Chinnasamy V. P.S.Swaminathan (2006(4) CTC 850), it has been held as follows: "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 safe for the Court to take the aid of handwriting expert to have the expertise to scientifically compare such handwriting with reasons. (3) THE practice of sending original documents in the custody of the Courts 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 within the Court's premises, is not possible due to genuine difficulties expressed by the expert, the Court has to find out the 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 within 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............ 37. It is not in dispute that the written statement was filed on 10.6.1999 and the application was filed on 19.10.2004 only. But in the affidavit filed in support of I.A.No.1531 of 2004, no explanation much less an acceptable explanation was given by the defendant for taking out the application under Section 45 of the Indian Evidence Act nearly more than 5 years. Further, even though it was stated in the affidavit that the signature in the sale agreement, dated 15.2.94, should be compared with his admitted signature by handwriting expert, there was no mention about the document containing his signature which was admitted by him and which should be compared with the disputed signature. In such circumstances, the trial Court has rightly observed that the application lacks bona fide. This Court in T.A.Narasimhan's case (cited supra) has deprecated the practice of filing Applications for examination of documents by handwriting experts at a late stage and thereby protracting and holding up the proceedings. This decision is applicable to the facts of the present case and I do not find any illegality nor infirmity in the order of the trial Court." In the counter affidavit filed on behalf of the first respondent it has been stated that the averments made on behalf of the petitioners are devoid of merits. It has also been stated that pursuant to the order, dated 6.11.2009, made in I.A.No.351 of 2009, the Advocate Commissioner had already executed the warrant by obtaining the opinion of the Government Hand Writing Expert and it had been submitted before the Second Additional Subordinate Court, Coimbatore. It has been stated that the first respondent is an 80 year old lady and therefore, this Court may be pleased to fix a time limit for the Second Additional Subordinate Court, Coimbatore, to hear and dispose of the suit, on merits. He had also submitted that the civil revision petition had become infructuous in view of the fact that the expert opinion had already been filed before the Second Additional Subordinate Court, Coimbatore, pursuant to the order passed, in I.A.No.351 of 2009, in O.S.No.546 of 2004.;