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Judgment
Dr. V.R.K. Krupa Sagar, J
Defendant No.1 before the trial Court filed these revisions under Article 227 of the Constitution of India. C.R.P.No.7036 of 2018 questions the correctness of order dated 13.11.2018 of learned Principal Senior Civil Judge, Nellore in I.A.No.567 of 2018 in O.S.No.379 of 2011. C.R.P.No.7172 of 2018 questions the correctness of order dated 13.11.2018 of learned Principal Senior Civil Judge, Nellore in I.A.No.607 of 2018 in O.S.No.379 of 2011.
The suit before the trial Court was for injunction. Certain registered sale deeds in Exs.A.1 and A.3 are said to have finally conveyed plaint A and B schedule properties in favour of Smt. Magunta Lakshmi Kanthamma. Thereafter, she initially executed one registered Will dated 11.03.2004 and thereafter, she executed Ex.A.5-Will being attested by her husband, son and daughters and under the said Will she cancelled the earlier Will and granted the properties. It was with such averments, claiming properties under Ex.A.5-Will the suit for injunction was laid. Contentions of defendants include questioning of validity of the sale deeds standing in favour of Smt. Lakshmi Kanthamma and the defendants relied on the earlier Will/Ex.B.1 dated 11.03.2004 and question the correctness of Will propounded by the plaintiff in Ex.A.5 dated 20.03.2009 and alleged that it was a forged and fabricated unregistered Will. It was in the backdrop of these facts, while the evidence recording was in progress, the defendants filed the two applications. I.A.No.607 of 2018 was filed under Order XVI Rule 4 read with Section 151 C.P.C. summoning from Sub-Registrar, Nellore, the register that contains the signatures and thumb impressions of the executant of the registered Will dated 11.03.2004 and I.A.No.567 of 2018 was filed under Section 45 of the Indian Evidence Act read with Section 151 C.P.C. to send Ex.A.5-Will and the said register and Ex.B.1 to the handwriting expert for comparison of the signatures of Smt. Lakshmi Kanthamma. In both the applications, the plaintiff filed counters and resisted the prayers. Learned trial Court on hearing both sides and on perusal of the record made the following observations:
It recorded that Ex.B.1 was the copy of Will on which the defendants placed reliance, but the original of Ex.B.1 was not produced. Therefore, comparison of Ex.A.5-Will as against Ex.B.1-Will could not arise. It then observed that Ex.A.5, which is a disputed Will, contains only signature and does not contain the thumb impression of the executant. Since it does not contain the thumb impression, calling for the register from Sub-Registrar, which contains only the thumb impressions of the said Smt. Lakshmi Kanthamma serves no purpose. It further stated that the principal contention of the defendants was about the truth and validity of sale deeds that were registered in favour of late Smt. Lakshmi Kanthamma. Therefore, Ex.A.5-Will allegedly executed by Smt. Lakshmi Kanthamma by itself cannot be disputed by the defendants especially as the Will of such nature is a matter for being disputed by her family members and not for the defendants. It stated that the said Will was attested by all the family members of the testator. It was with these observations it concluded saying that Ex.A.5-Will does not effect the defendants since they are no way concerned with it and therefore, sending it for comparison does not serve any purpose. It was with those observations and conclusions, it dismissed both the petitions.
In these revisions, those impugned orders are challenged stating that since the plaintiff filed the suit based on Ex.A.5-Will and since the defendants contended it is a forged and fabricated, the trial Court ought to have referred the documents for handwriting expert’s opinion. That the register lying with the Sub-Registrar contains not only the thumb impressions but also the signatures and the observations of the trial Court that the said register would contain only the thumb impressions and since Ex.A.5-Will does not contain thumb impressions, there was no need to summon the document and forwarded to expert, is incorrect. The observation of the trial Court that these defendants are no way effected parties by Ex.A.5 is incorrect. It is on these grounds, the revision petitioner urges for reversal of the orders of the trial Court.
Learned counsel for 1st respondent-plaintiff supported the impugned orders stating that they are in accordance with facts and law and on questions of collection of evidence, this Court sitting under Article 227 of the Constitution of India shall not interfere.
Having heard the submissions on both sides and having perused the entire record, the point that falls for consideration is:
“Whether the learned trial Court failed to exercise its discretion judiciously and the orders of the trial Court suffer from infirmity leading to injustice requiring interference under Article 227 of the Constitution of India?
Point:
One shall take notice of a fact that the Will of deceased Smt. Magunta Lakshmi Kanthamma bequeathing certain estate is solely dependant on the executant holding an estate. If she does not possess any estate, a Will by itself could not bequeath any estate to anyone. At the suit, certain registered sale deeds are claimed to have conferred ownership over properties in favour of Smt. Lakshmi Kanthamma. If at the trial, that contention is sustained only then the question of Will comes. If at the trial it is found that Smt. Lakshmi Kanthamma did not own or possess the properties that are contained in the registered sale deeds, it’s consequence leads to discounting from consideration the execution of Ex.A.5-Will since that Will by itself carries nothing in favour of legatees. The trial Court viewed these facts properly and on the anvil of such facts, it went on to decide the applications that came up for consideration before it and in these revisions, the correctness of such observation of the trial Court is not challenged with any vehemence.
In the context of the above facts, now one shall see the two Wills pitted against each other. Ex.B.1 is a registered Will earlier in point of time that is relied on by the defendants in the suit. Ex.A-5 is an unregistered Will of the same testator and it is subsequent in point of time and it seems to have made a reference to Ex.B.1-Will also. The record made available indicates Ex.B.1 is not the original Will and it is only a copy of the Will. From the record it is not known and during the course of hearing none has appraised this Court as to whether Ex.B.1-Will was adduced in evidence in the manner that is required under law in proof of a Will. Be that as it may. One of the prayers in the petitions was to have comparison of signature of the executant on Ex.A.5 as against Ex.B.1. The observation of the trial Court was that Ex.B.1 being not original, it was not amenable for comparison as against Ex.A.5. Such observation is correct. No serious challenge is raised in these revisions against that. One principal challenge here is that the observations of the trial Court that the register available with Sub-Registrar, Nellore contains the signatures as well as thumb impressions of Smt. Lakshmi Kanthamma, the author of Ex.B.1 registered Will and if that register is summoned that would be used for comparison of the disputed signature of testator on Ex.A.5. The lapse lies in the observation of the trial Court that such register would contain only thumb impressions and not signatures. During the course of hearing, a copy of such register containing columns for signature as well as thumb impression is shown by the learned counsel for revision petitioner and is not challenged by the learned counsel for the 1st respondent. Thus, the factual observation of the trial Court that it contains only thumb impressions and not signatures is certainly incorrect. However, whether that incorrect observation of fact by itself could be called as an order leading to injustice for the petitioner? It is here one has to see that the plaintiff in the counter raised a contention that the time gap between both the Wills was four years and therefore, they were not contemporaneous, therefore, it was incorrect to send them to handwriting expert is one aspect of the matter that has to be borne on mind. As argued by the learned counsel for the 1st respondent, the opinion of a handwriting expert is never conclusive as the science of handwriting and its analysis is not a science of certainty. The other fact on record is that all the family members of the testator attested Ex.A.5-Will. Though not articulated with full flourish, the approach of the trial Court would indicate that these were in the back of its thinking, making the trial Court to deny the prayers of the defendants for handwriting expert opinion.
This Court in M.B.Chander v. M/s. Balakrishna Rao Charitable Trust (2016) 6 ALT 1 held that with reference to recording of evidence, collection of evidence and rejection of a particular piece of evidence, the discretion exercised by the trial Court cannot be interfered with by the High Court while exercising jurisdiction under Article 227 of the Constitution of India. Thus, in the context of these facts and law, even while accepting the contention of the revision petitioner that there was error in the observation of the trial Court as to what the Sub-Registrar’s register contains, in the final analysis, the impugned orders are found to be in accordance with fact situation available at the trial and therefore, the discretion exercised by the trial Court in refusing to send the document for opinion of handwriting expert has to be upheld as one in accordance with law. Therefore, this Court finds no infirmity in the impugned orders requiring interference. Hence, point is answered against the revision petitioner.
In the result, both the Civil Revision Petitions are dismissed confirming the orders dated 13.11.2018 of learned Principal Senior Civil Judge, Nellore in I.A.Nos.567 and 607 of 2018 in O.S.No.379 of 2011. There shall be no order as to costs.
As a sequel, miscellaneous applications pending, if any, shall stand closed.