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2020 Supreme(Kar) 122
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
N.S. SANJAY GOWDA, J.
Sri. S. Ramakrishna S/o Late Subbaiah – Appellant
Versus
Sri. S. Appaiah S/o Late Subbaiah – Respondent
R.S.A. Nos. 1135, 1359 of 2016
Decided On : 16-03-2020
Advocate Appeared:
For the Appellant : Sri. N.K. Ramesh.
For the Respondents: Sri. Santhosh S. Gogi, Sri. Ravishankar S.
Headnote:
Indian Evidence Act, 1872 - Section 47 - Civil Procedure Code - Order XXVI - Rule 10-A - Possession of property - Share in suit property - Registered Partition Deed - Whether signature alleged is that of person to whom it purports to be may compare disputed signature and admitted signature to satisfy itself regarding authenticity of signature - Whether plaintiff and defendant No. 3 had executed Partition Deed - Ex.D1 was essentially a question of fact which has been determined by Appellate Court and on re-appreciation of facts it has arrived at a conclusion that plaintiff and defendant No. 3 had indeed signed Partition Deed and therefore there is no scope for interference under Section 100 of Code of Civil Procedure - Whether signature is genuine or not that report by itself becomes evidence in suit and he may be examined personally touching upon any of matters referred to in his report or in manner in which he conducted test either by Court on its own or by any of parties to suit with permission of Court - They contended that there was a partition effected amongst four brothers by way of a registered Partition Deed under which there was a division of properties and each of brothers were allotted properties - It was stated that under said partition suit property had been allotted to defendant No. 1 and therefore plaintiff and defendant No. 3 being parties to Partition Deed could not contend that they were entitled to a share in suit property - Trial Court on consideration of evidence came to conclusion that registered Partition Deed was not proved since execution of Partition Deed was denied and witnesses to document were not examined to prove its execution - Trial Court accordingly decreed suit – Held, Learned counsel for appellant relied upon judgment of Apex Court in case to contend that evidence tendered by an expert is only of an advisory character and hence report of Finger Print Expert was not conclusive - No doubt it is true that evidence of an expert is not conclusive but accuracy of his conclusions based on scientific criteria would be a valuable tool for a Judge to arrive at a just and proper conclusion especially in case of ascertaining genuineness of a signature - This judgment is thus does not support contention of appellant that Commissioner’s report is to be ignored if he is not examined - Learned counsel also relied upon judgment of this Court in case to contend that Commissioner was required to be examined failing which Commissioner’s report would have to be discarded - In Court view this Court has not laid down such a proposition of law - In fact this Court has held that either party to lis can examine Commissioner with permission of Court and it therefore follows that a Commissioner is not required to be examined automatically whenever objections are filed to his report - In court view fact as to whether plaintiff and defendant No. 3 had executed Partition Deed - Ex.D1 was essentially a question of fact which has been determined by Appellate Court and on re-appreciation of facts it has arrived at a conclusion that plaintiff and defendant No. 3 had indeed signed Partition Deed and therefore there is no scope for interference under Section 100 of Code of Civil Procedure - As far as contention that witnesses to Partition Deed were required to be examined to prove execution of Partition Deed in light of denial of execution it is to be stated here that a Partition Deed is a document which is not required to be attested by law and thus requirement of examining witnesses is not mandatory to prove execution - Appeal is dismissed
JUDGMENT :
N.S. SANJAY GOWDA, J.
1. The brothers, i.e. the plaintiff and the 3rd defendant who supported each other in a suit for partition are in second appeal, challenging the dismissal of their appeal by the Appellate Court.
2. Since both these appeals arise out of a common judgment and decree passed in O.S. No. 640/2004 and R.A. No. 64/2013, they are taken up together for disposal. One Subbaiah had four sons namely:
(i) S. Narayanappa (defendant No. 1)
(ii) S. Appaiah (plaintiff)
(iii) Venkasubaiah (defendant No. 2)
(iv) S. Ramakrishna (defendant No. 3)
3. S. Appaiah had filed a suit seeking for partition and separate possession of property bearing Sy. No. 145/2P2 measuring 2 acres, situated at Kannamangala Village, Bidarahalli Hobli, Bengaluru East Taluk. It was his case that the suit property had been purchased in the name of his elder brother - S. Narayanappa (defendant No. 1) out of joint family funds and it was, therefore, a joint family property. He further stated that since it was a joint family property, he was entitled to 1/4th share in it.
4. S. Narayanappa and Venkasubbaiah (defendants 1 and 2) contested the suit. They contended that there was a partition effected amongst the four brothers by way of a registered Partition Deed dated 06.05.1989 (Ex.D-1) under which there was a division of properties and each of the brothers were allotted properties. It was stated that under the said partition, the suit property had been allotted to defendant No. 1 and therefore, the plaintiff and defendant No. 3, being parties to the Partition Deed, could not contend that they were entitled to a share in the suit property.
5. S. Ramakrishna (defendant No. 3) supported the claim of the plaintiff and also claimed a share.
6. The Trial Court, on consideration of the evidence, came to the conclusion that the registered Partition Deed (Ex.D1) was not proved since the execution of the Partition Deed was denied and the witnesses to the document were not examined to prove its execution. The Trial Court accordingly decreed the suit.
7. Defendants 1 and 2 (S. Narayanappa and Venkasubbaiah) challenged this decree of partition in appeal.
8. The Appellate Court, after re-appreciating the entire evidence, came to the conclusion that the properties of the family had been divided under the registered Partition Deed dated 06.01.1989 (Ex.D1) and in the said partition, the suit property had been allotted to S. Narayanappa (defendant No. 1) and the same could not be subjected to a partition once again.
9. As far as the contention that the plaintiff and defendant No. 3 had not executed the Partition Deed, the Appellate Court took note of the fact that the plaintiff and defendant No. 3 had sought for appointment of a Finger Print Expert and the same had been granted and a Finger Print Expert was appointed. It is noted that the Finger Print Expert’s report disclosed that the signatures found on the Partition Deed (Ex.D-1) were indeed the signatures of the plaintiff and defendant No. 3 and therefore, the Partition Deed had stood proved and as a consequence, the decree of the Trial Court could not be sustained. The Appellate Court accordingly proceeded to allow the appeal and dismiss the suit.
10. It is this decree of dismissal of the suit that is impugned in this second appeal.
11. The learned counsel for the appellants contended that the Appellate Court could not have dismissed the suit since the Finger Print Expert was not examined by the Trial Court and this had vitiated the judgment of the Appellate Court. He contended that the evidence of the expert by itself could not lead to the conclusion that the Partition Deed stood proved and he further contended that whenever the execution of document was denied, if there were attesting witnesses to the document, the said witnesses were required to be examined and if they were not examined, then an inference would have to be drawn that the document had not been proved.
12. In this case, Appaiah filed a suit for partition con
