JAI NARAYAN DURGA PRASAD Vs. SATYANARAYAN ALIAS DHONBABU

JUDGEMENT

(1.) THIS is a revision by the plaintiff /petitioner against an order dated 25th October 1990 passed in Civil Suit No. 27-A/1983 by Second Additional Judge to the Court of District Judge, Gwalior, whereby defendants Nos. 1 to 4 were granted permission to produce handwriting expert in relation to two disputed documents (Ext. P-2), a partition deed between plaintiff and defendant No. 1 and his father, and Ext. D-5, a map prepared by the plaintiff which was a part of an agreement to sell in relation to the suit house.

(2.) FOR deciding this revision, certain facts are material. The plaintiff instituted a suit for declaration of title and for permanent injunction against defendants Nos. 1 to 4, who executed a sale-deed on 19-11-1985 in favour of defendant No. 5 in relation to the suit house, averring therein that a partitions took place between the father of the plaintiff the father of defendant No. 1 as long back as in the year 1949, and since then the parties are in possession of the properties as the sole owners; defendants Nos. 1 to 4 had no right or title in the suit house; the transfer made during the pendency of the suit is void and ineffective to the rights of the plaintiff. The defendants denied the genuineness of the document (Ext. P-2) and the signatures of defendant No. 1 and his father Durgaprasad on the said document. The plaintiff examined himself to prove the document (Ext. P-2) and the signatures not only of the plaintiff but also of the defendant No. 1 and his father on the said document. It is in this background that defendant No. 5 applied Under Order 16, Rule 1, read with Order 18, Rule 2 (4), Civil Procedure Code, for an opportunity to produce handwriting expert. That application was dismissed on 20-4-1990. Aggrieved of the said order the defendants came before this Court in Civil Revision No. 85/1990 which was disposed of on 3-5-1990 with a direction that in dealing with the application the trial Court shall consider the relevancy of the evidence proposed to be adduced for the just determination of the case. After the order of this Court defendant No. 5 again applied on 27-6-1990 for granting permission to produce handwriting expert. The trial Court placing reliance on Sunderlal v. Anupkunwarbai, 1961 JLJ Note 553, held that as defendant No. 5 was not a party to the documents the prayer for allowing an opportunity to produce handwriting expert, cannot be allowed and, hence, dismissed the application. After dismissal of this application, defendants Nos. 1 to 4 moved an application and prayed for permission to produce handwriting expert. This application was allowed by the trial Court, and it is against this order that the petitioner/plaintiff has come in revision.

(3.) THE contention of Shri K. S. Tomar and Shri K. B. Chaturvedi, learned counsel for the petitioner/plaintiff, is that as the trial Court has held that the document is produced from proper custody and is more than 30 years' old there is a presumption Under Section 90 of the Evidence Act that the signature and every other part of such document, which purports to be in the handwriting of any particular person is in that person's handwriting, and, in the case of the document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested; therefore, when the trial Court raised the presumption, no opportunity to produce handwriting expert could have been granted to defendants Nos. 1 to 4. It was further contended that defendants Nos. 1 to 4 have no right, title or interest in the suit house now, as the same has been transferred by them in favour of defendant No. 5; therefore, in view of the decision of this Court in Ashok Kumar v. Sunnu Khan, 1981 (1) MPWN 169, wherein this Court placing reliance on a decision of the apex Court in Nagubai, AIR 1956 SC 593, has held that the effect of transfer Us pendens as incorporated in Section 52 of the Transfer of Property Act is that the sale pendente lite cannot be wiped out altogether but it is subordinate to the rights based on the decree in the suit. As between the parties to the transaction, however, it is perfectly valid and operative to vest the title of the transferor in the transferee, the jurisdiction exercised by the trial Court in granting permission to produce handwriting expert, to defendants Nos. 1 to 4, is illegal.