Prasenjit Mandal, J. - (1.) CHALLENGE is to the order dated April 19, 2005 passed by the learned Civil Judge (Senior Division), Purulia in Title Suit No.121 of 2003 thereby allowing the petition of the plaintiffs dated February 17, 2005 directing the defendants to produce the original deed of gift dated October 30, 1996.
(2.) THE short fact is that the plaintiffs/opposite parties instituted a suit being Title Suit No.121 of 2003 against the petitioners for declaration of title, partition, injunction and consequential reliefs before the learned Civil Judge (Senior Division), Purulia. THE petitioners are contesting the said suit by filing a written statement. THEy have specifically contended that by a registered deed of gift dated October 30, 1996, the defendants nos.1 and 2 acquired right, title, interest and possession in the suit property. THE petitioners filed a counterclaim under Order 8 Rule 6A of the Code of Civil Procedure praying for eviction of the plaintiff no.1 in respect of the room, as described in schedule 2 of the counter-claim. THEreafter, the plaintiff filed an application dated February 17, 2005 before the learned Trial Judge for directing the defendant nos.1 and 2 to file the purported original deed of gift dated October 30, 1996 for sending the same to the Directorate of Finger Print Bureau, Kolkata for comparison of the signature and for opinion whether the signatures appearing on the so-called deed of gift are the same as the signatures appearing on the money order receipt and the medical certificate. That application was allowed in part. Being aggrieved, this application has been preferred. Now, the question is whether the learned Trial Judge is justified in allowing the said application. Mr. S. P. Roychowdhury, learned senior Advocate appearing on behalf of the petitioner, submits that the opinion of an expert is relevant as per Section 45 of the Indian Evidence Act and so, the Court may obtain the opinion of a handwriting expert to determine the issue in the suit. Beside, the above procedure, the Court is also competent to compare the signature appearing on the disputed document along with the admitted ones as per Section 73 of the Indian Evidence Act. In this way, the Court could arrive at a conclusion whether a document is signed by the person concerned when a dispute is raised as to execution of a document by that person. For that reason, there must be signatures admitted by the other side or the signatures which have been proved before the Court; otherwise, the comparison will be meaningless. In support of his contention Mr. Roychowdhury has referred to the decisions in the case of Sunil Chowdhury Vs. Arup Kumar Ghosh reported in AIR 2006 Cal 109 and Dr. Narayan Mukherjee Vs. Smt. Krishna Dey (Mukherjee) reported in 1996 (1) CHN 491 and thus he submits that according to the said decision the learned Trial Judge was not justified in allowing the application of the plaintiff for sending the document in question to the handwriting expert.
(3.) ON the other hand, Mr. Probal Mukherjee, learned Advocate appearing on behalf of the opposite party, supports the judgment by describing that when a question arises whether a document was signed by a person or not, the proper course would be to obtain a report from the expert and such a procedure has been followed in the instant case. Here, two signatures of the donor are available; one on the postal money receipt and another a certificate issued by the donor in favour of his son. Those two signatures were issued long time back and so those signatures appearing on those two papers may be considered as genuine and so comparison may be held by the concerned expert. There is no wrong in the impugned order. Thus, Mr. Mukherjee supports the judgment. Upon hearing the submission of the learned Advocates for the parties and on perusal of the materials on record, I find that since a question whether the donor had signed the deed of gift dated October 30, 1996 is an issue before the learned Trial Judge and when the question of signature is very much vital for coming to a decision that signature is to be proved as per provisions of Section 68 of the Indian Evidence Act. When the witnesses are not tendered or not available subject to the process of the Court or within reasonable time or expenses, the opinion of the expert becomes relevant and such opinion may well be considered in coming to a decision along with other evidence. So, the examination of a document by a handwriting expert becomes necessary when the witnesses to the deed of gift are not available.;