PONNAN Vs. KUTTIPENNU

JUDGEMENT

(1.) IN OS No. 46/ 76 filed by the first respondent for partition, a preliminary decree was passed directing division of the plaint schedule 'properties into seven equal shares, and allotment of one share to the plaintiff. The 4th defendant was ex parte. The first defendant passed away. When the plaintiff applied for final decree, defendants 2, 3, 5 and 6 resisted the attempt on the ground that after the preliminary decree dated 3-12-1976, the plaintiff and the 4th defendant had, as a result of mediation, surrendered their shares, by registered surrender deed No. 417/77 of the Chittur Sub registry, in favour of the other sharers. The plaintiff filed a rejoinder denying execution and registration of any such deed by her, and the court below was thus called upon to find out whether the deed in question was genuine and valid. The plaintiff gave evidence as PW1 asserting that the thumb impression on the surrender deed (Ext. B1) was not hers, and that she had bad no knowledge about the alleged registration. RW1 was the 5th defendant, and RW2, an attesting witness to Ext. B1. RW3 was a finger print expert who opined that the disputed thumb impression (in Ext. B1) was really that of the plaintiff. On a consideration of the evidence before it, the court below felt that the examination of the thumb impression by RW3 was not thorough and complete, that his opinion was not sufficiently corroborated, and that there was evidence to suggest that PW1 might not have been a party to the execution and registration of Ext. B1.

(2.) IT is the above view of the court below which is now being challenged by defendants 2, 3, 5 and 6, in this revision.

(3.) WHAT is contended is that according to some of the decisions of the Supreme Court, the science of finger - prints is now an exact science, and that therefore, in view of the opinion given by the expert (RW3)based on similarity of ridges, the court below should have accepted the genuineness of the thumb impression in Ext. B1. Under S. 45 of the Evidence Act, a finger print expert is just another expert. His opinion maybe entitled to great weight, but the court is not bound by it. As pointed out by Subba Rao c. J, in Hussenaiah v. Yerraiah (AIR 1954 Andhra 39) the expert's evidence will have to be taken into account along with other evidence and it will be for the court to decide, depending upon the facts of each case, what probative value is to be attached to each such piece of evidence Though the science has "developed to a stage of exactitude", it is still for the court to decide bow far the examination by the finger-print expert has been thorough, complete and scientific. (Bhaluka Behera v. State AIR 1957 Orissa 172)According to R. J. Gounder v. Elaiya Pillai (AIR 1972 Madras 336) where the executant is an illiterate person, the onus of proving that the document was properly explained and interpreted to such person before affixing the mark, is on the party relying on the document. And going by Vareed Kunju v. Chellappan (1983 KLT 281) and S. 45 and 46 of the Evidence Act. facts and circumstances which either support or are inconsistent with the opinion of experts are also relevant.