IMPORTANT POINT
The main legal point established in the judgment is that while the court has the power to seek expert opinion for comparison of LTIs under Section 73 of the Indian Evidence Act, it is not bound to accept such opinion and may consider other evidence and circumstances in reaching a decision.

JUDGMENT :

Shampa Sarkar, J.

1. The revisional application arises out of an order dated April 21, 2023, passed by the learned Civil Judge (Junior Division) at Kalyani, Nadia, in Title Suit No.58 of 2015.

2. By the order impugned, the learned court rejected an application dated March 14, 2023, filed by the plaintiffs under Section 45 of the Indian Evidence Act, 1872. The plaintiffs had prayed for opinion of a scientific expert, upon comparison of the Left Thumb Impression (LTI) of late Jasoda Sundari Das on the alleged deeds bearing no.4944 of 1987 and the 4945 of 1987 with the LTI of late Jasoda Sundari Das in the patta deed, which was the admitted LTI of the deceased and was already on record. The opinion sought was whether the LTIs in the alleged deeds was of the same person, whose LTI appeared on the patta deed.

3. The questioned deeds had been marked as X and Y for identification and had been filed by the principal defendants, who claimed that they had been gifted the property by late Jasoda Sundari Das. The plaintiffs denied such deed and contended that their mother could sign. Thus, the LTI on the questioned deeds were not that of their late mother. A prayer was accordingly made for comparison of the LTIs in the admitted patta deed with the deeds filed by the defendants in the suit. Appointment of a fingerprint expert was prayed for. The defendants objected to the application by filing their written objection, inter alia, contending that evidence was already closed and the suit was at the stage of argument. At such a belated stage, the only intention of the plaintiffs in asking for an expert opinion was to delay the suit and also to fill up the lacuna in the evidence.

4. Upon considering the rival contentions of the parties, the learned trial court was of the view that the plaintiffs had ample opportunity to cross-examine the defendants on the impugned deeds. Jasoda Sundari Das died in the year 1994 and the deeds were executed in 1987. No one had challenged the said deeds. Jasoda Sundari Das had also not challenged such execution of the gift deeds during her lifetime. Moreover, there was no allegation in the plaint that the deeds were either forged or obtained by false personification, at the behest of the principal defendants. According to the learned court, an opinion of an expert only had persuasive value and the court was not bound to accept the same. The learned court did not find any special reason to send the questioned deeds for comparison of the LTIs on the said deeds with the admitted LTI on the patta deed, which had also been filed by the defendants.

5. Ms. Lahiri, learned Advocate appearing on behalf of the plaintiffs submitted that the learned court should not have been persuaded by the contentions of the defendants with regard to the belated filing of the application. Opinion of a scientific expert could be entertained by the court at any stage of the suit, even after closure of evidence. She submitted that comparison of the LTI would be crucial to prove the plaint case. The opinion would be useful for the plaintiffs as the plaint case was that late Jasoda had not executed the deeds of gift in favour of Monojit Das and Ajit Das.

6. Learned Advocate submitted that even though the court had the power under Section 73 of the Indian Evidence Act, 1872, to compare a signature or an LTI, but it would be hazardous and risky for the court to form an opinion by comparing the LTIs of the deceased Jasoda Sundari Das. Such exercise required technical knowledge. Comparison of LTIs involved a scientific process. It comprised of a complicated method, which could not be achieved by a casual glance.

7. Opinion, upon comparison of the LTIs, was usually rendered by a person who was qualified in such discipline and the courts should be extremely slow in venturing to form an opinion. The foundation of the defence case were those deeds of gift and the plaint case was based on allegation of fabrication and falsification of such deeds.

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