IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 07TH DAY OF DECEMBER, 2017 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR W.P.NO.55074/2016 (GM-CPC) BETWEEN:
K. NARASIMHA REDDY S/O LATE KRISHNAPPA AGED ABOUT 48 YEARS R/AT HOMMADEVANAHALLI VILLAGE, BANNERGHATTA ROAD GOTTIGERE POST BANGALORE SOUTH TALUK BENGALURU-560 083.
... PETITIONER (BY SRI.GANESH BHAT Y H, ADVOCATE) AND:
1. SRI. A. GOPALA REDDY AGED ABOUT 68 YEARS S/O LATE APPAIAHPPA R/AT DODDATHOGURU MUNESHWARA LAYOUT ELECTRONIC CITY POST BANGALORE-560 100.
2. SMT. A. GOWRAMMA AGED ABOUT 54 YEARS D/O LATE APPAIAHPPA W/O LAKSHMINARAYANA REDDY R/AT HOMMADEVANAHALLI BANNERGHATTA ROAD GOTTIGERE POST BENGALURU-560 083.
3. SMT. JAYAMMA AGED ABOUT 73 YEARS D/O LATE APPAIAHPPA W/O NARAYANA REDDY R/AT RAYANAKALLU MANCHENAHALLI POST GOWRIBIDANUR TALUK CHKKABALLAPURA DISTRICT PIN CODE-561 211.
4. SRI. HEMA REDDY AGED ABOUT 63 YEARS S/O KONDA REDDY R/AT ADDE VILLAGE MARASANDRA POST BANGALORE-561 101.
5. SRI. ANAND REDDY AGED ABOUT 38 YEARS S/O HEMA REDDY R/AT ADDE VILLAGE MARASANDRA POST BANGALORE-561 101.
6. SRI. RAMA REDDY AGED ABOUT 32 YEARS S/O HEMA REDDY R/AT ADDE VILLAGE MARASANDRA POST BANGALORE-561 101.
7. SRI. PAPANNA AGED ABOUT 56 YEARS S/O THOMAS @ CHOWRA RAJU R/AT DORESANIPALYA BANNERGHATTA ROAD BEGUR HOBLI BANGALORE-560 076.
... RESPONDENTS (BY SRI.G. PAPI REDDY, ADVOCATE FOR R-1 & R-2; V/O DATED 02.11.2016 NOTICE TO R-3 TO R-7 ARE DISPENSED WITH) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER DATED 04.10.2016 AT ANNEXURE-N ON I.A.NO.16 IN O.S.NO.796/2008 PASSED BY THE COURT OF HON’BLE II ADDL. SENIOR CIVIL JUDGE BANGALORE RURAL DISTRICT AT BENGALURU AND CONSEQUENTLY ALLOW THE I.A.NO.16 FILED BY THE PETITIONER UNDER ORDER 26 RULE 10A READ WITH SECTION 151 OF CPC IN O.S.NO.796/2008 ON THE FILE OF THE COURT OF THE HON’BLE II ADDL. SENIOR CIVIL JUDGE, BANGALORE RURAL DISTRICT AT BENGALURU VIDE ANNEXURE-L.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R 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.
2. 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”.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
SD/- JUDGE *sp