VENKATESA NAIDU AND OTHERS Vs. PERUMAL

JUDGEMENT

(1.) The Second Appeal is against the judgment and decree dated 11.5.1992 in A.S. No. 25 of 1989 on the file of Sub-Court, Thiruvellore, reversing the judgment and decree dated 13.1.1989 in O.S. No. 140 of 1984 on the file of District Munsif, Thiruvellore. The defendants are the appellants. The suit is for declaration of title and for permanent injunction. The case of plaintiff is that the schedule mentioned properties belonged to her after the death of her husband. When she returned from Tirupathi about six months prior to the filing of the suit, the defendants removed her belongings and sold away the trees in the lands. The defendant further attempted to sell the properties, when she issued notice to the defendants on 2-11-1983, there is reply with false allegations. Hence she filed the suit. The defendant contended that the Thozhur property which includes 'A' schedule property was partitioned on 17.6.1959 among the brothers including the husband of the plaintiff. One item of the properties i.e. B schedule property was not divided and it belonged to the family. The plaintiff never cared for her husband, the brother of the defendant. Her husband executed a will dated 20.11.1981 under which the 3rd defendant should enjoy the Thozhur properties till her minor sons attained majority and thereafter they should enjoy it absolutely. The plaintiff has no right to the B schedule properties on the basis of the sale deed dated 2.1.1993 in favour of Chakrapani Naidu. Hence she is not entitled to the reliefs claimed in the suit.

(2.) The trial court framed three issues. On consideration of the facts and the circumstances of the case, the suit was dismissed. As against the judgment the plaintiff filed appeal before the appellate Court. The appellate Court has reversed the judgment and decree of the trial Court and decreed the suit with reference to A and C properties. As regards the C schedule property the plaintiff was awarded Rs. 250.00as the value thereof. Hence the defendant preferred the appeal. The appellate Court found that there was no separation or ill feeling between the plaintiff and her husband. The appellate Court has considered the will Ex. B 30 and found that the will was not valid in law. PW-2 evidence has been considered. It is true that the lower Court has commented upon his evidence with reference to the lack of particulars and details about the properties in the will. But the statements like the properties remaining after sale is rightly commented upon by the appellate Court. Ft her DW 3's evidence is also artificial when he says that they were waiting for him after the execution of the will for his arrival. When there were other witnesses like PW-1, PW-2 and PW-3 there is no necessity for others to wait for him. Similarly the finding of the appellate Court that the signature is not genuine one is correct. A comparison with the signatures in the admitted documents like Vakalat and written statement. Ex. B-1 to B-4 and B-12 clearly indicate that the signature contained in Ex. B-30 is entirely different with the admitted signature contained in the aforesaid documents. As rightly found by the lower appellate Court, the letter 'J' is clearly found in the other documents. But in Ex. B-30 instead of 'J', 'Y' is found. Further, we are able to see in the signature in Ex. B 30 some pencil marks particularly at the bottom of the word 'Y', pencil line is visible even to naked eye. If we look at the said signature through a magnifying glass, it is seen that the said signature has been written on the lines Already written in a pencil. The 3rd signature in Ex. B-30 proves that it was written on the pencil lines Already made. In the second page, the erasure of the pencil lines are visible. The mark itself is found in the signature contained in Ex. B-30. The lower appellate Court has rightly detected these details. But the trial Court has completely shut its eye on this material aspect.

(3.) Sec. 73 of the Indian Evidence Act, empowers the Court to compare the signature in a disputed document with the signature in the admitted documents. It is not always necessary that the expert should be invariably examined and his opinion alone must be taken into account, for comparing the disputed signature.