Civil Revision Petition No. 4481 of 2012. Case: Mathangi Devasahayam Vs Jetty Manikyamma. Andhra Pradesh High Court

Case Number:Civil Revision Petition No. 4481 of 2012
Party Name:Mathangi Devasahayam Vs Jetty Manikyamma
Counsel:For Appellant: Venkateswarlu Posani, Adv.
Judges:L. Narasimha Reddy, J.
Issue:Indian Evidence Act, 1872 - Sections 45, 68, 69
Judgement Date:June 12, 2014
Court:Andhra Pradesh High Court


L. Narasimha Reddy, J.

  1. The respondents filed O.S No. 709 of 2010 in the Court of the Principal Senior Civil Judge, Guntur, against the petitioner for partition and separate possession of the suit schedule property. The basis for the suit is a Will, dated 10.02.2010 (Ex. A-6), said to have been executed by the mother of the petitioner and the respondents. The plea of the petitioner was that the property was purchased by him and since he happened to be a Government Employee, the sale deed was obtained in the name of his mother and that she did not have any right to execute a will. It was also pleaded that the signature on the alleged will is not that of his mother, and is a forged one.

  2. The trial of the suit commenced and P.Ws. 1, 2 and 3 were examined. At that stage, the petitioner filed I.A. No. 2436 of 2011 under Section 45 of the Evidence Act (for short 'the Act') with a prayer to send the alleged will, dated 10.02.2010, to the Forensic Science Laboratory, Hyderabad, for examination as to the genuinity of the signature. The application was resisted by the respondents. The trial court dismissed the I.A. through order, dated 04.07.2012, taking the view that once P.Ws. 1 and 2, the attestors of the will, were examined to prove the execution and that there is no necessity to send the document for opinion of an expert about the genuinity of the signature of the executant. The said order is challenged in this revision.

  3. Sri Venkateswaralu Posani, learned counsel for the petitioner, submits that Section 68 of the Act, no doubt, stipulates a different procedure for proof of documents, which are required to be attested, but the same does not prevent a party who doubts the execution of the document, from seeking opinion of the expert. Placing reliance upon the judgment of a Division Bench of the Kerala High Court in Mrs. Sumangala T. Pai v. S. Sundaresa Pal AIR 1991 Kerala 259 learned counsel submits that the view taken by the trial Court cannot be sustained in law.

  4. Though the respondents are served with notice, they have not chosen to enter appearance.

  5. The basis for the respondents for filing the suit for partition is a will, said to have been executed by their mother. The sole defendant in the suit i.e. the petitioner herein contested it, by raising several contentions including the one as to the forgery of the alleged will. He filed an application to send the said will, to the Forensic Science Laboratory, apart from...

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