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2016 Supreme(Mad) 3893
IN THE HIGH COURT OF JUDICATURE AT MADRAS
T. Mathivanan, J.
Mr. M. Venkataswamy (Deceased) – Petitioner
Versus
Mrs. Mythira Devi – Respondent
C.R.P. (PD) No. 1275 of 2010 and M.P. No. 1 of 2010
Decided On : 09-11-2016
For the Petitioner: Mr. V. Baskaran.
For the Respondents: Mr. S. Manohar and Mr. A. Srinivasan.
Headnote:
Civil Procedure Code, 1908 - Order 26, Rule 10 (A) - Indian Evidence Act – Sections 47 ,58 and 73 - Suit for partition – Legal Heirs – Shares - Petitioners herein are defendants 3 and 5 in suit whereas 1st respondent herein is plaintiff and respondents 2 and 3 are defendants 2 and 4 respectively - 1st respondent had filed above said suit in O.S. as against revision petitioners as well as respondents 2 and 3 herein seeking relief of partition in respect of her 1/5th share in suit property - This suit was resisted by revision petitioners and respondents 2 and 3 by filing their respective written statements - After formulating necessary issues, trial was commenced - Process of recording of evidences on behalf of both sides was completed - Only under this circumstance, revision petitioners being defendants 3 and 5 along with 1st defendant in suit had chosen to file an application in I.A. under Order 26, Rule 10 (A) of C.P.C. r/w Section 47 of Indian Evidence Act, to refer thumb impression of 1st respondent/plaintiff found place in Ex.B2 partition deed to finger print expert for being compared with thumb impression of 1st respondent/plaintiff which may be obtained before trial court and send same through an Advocate Commissioner and to file a report to that effect - Held, Magistrate has no power at investigation stage by Police to issue a direction to accused to appear in Court for purpose of giving specimen hand writing and signature at request of Police - Simply speaking that Section 73 does not permit a Court to give a direction to accused to give specimen writing for comparison at stage of investigation - Therefore, decision which is made reference by Mr. S. Manohar, learned counsel for 1st respondent is made applicable to instant case on hand- 1st respondent/plaintiff had signed her name as Delli bai in Tamil and affixed her thumb impression in presence of two witnesses - It is also her case that her thumb impression had also been identified by her own daughter Tarabai - Since 1st respondent/plaintiff is disputed her own name, signature and thumb impression in partition deed (Ex.B2), in order to adjudicate the above dispute, disputed thumb impression of 1st respondent/plaintiff in Ex.B2 has necessarily to be referred to finger print expert for comparison with thumb impression of 1st respondent/plaintiff to be obtained from her in the presence of learned Trial Judge - Revision petitioners had not produced any documentary proof to show that the respondent/plaintiff alone had signed as Delli bai and affixed her left hand thumb impression - Civil Revision Petition is allowed.
1. This Civil Revision Petition is directed against the fair and decreetal order dated 06.01.2010 and made in the application in I.A. No. 5596 of 2007 in the suit in O.S. No. 6075 of 2006 on the file of the learned II Additional Judge, City Civil Court, Chennai.
2. The revision petitioners herein are the defendants 3 and 5 in the suit whereas the 1st respondent herein is the plaintiff and the respondents 2 and 3 are the defendants 2 and 4 respectively.
3. The 1st respondent had filed the above said suit in O.S. No. 6075 of 2006 as against the revision petitioners as well as the respondents 2 and 3 herein seeking the relief of partition in respect of her 1/5th share in the suit property. This suit was resisted by the revision petitioners and the respondents 2 and 3 by filing their respective written statements.
4. After formulating necessary issues, the trial was commenced. The process of recording of evidences on behalf of both sides was completed. Only under this circumstance, the revision petitioners being the defendants 3 and 5 along with the 1st defendant in the suit had chosen to file an application in I.A. No. 5596 of 2007 under Order 26, Rule 10 (A) of C.P.C. r/w Section 47 of the Indian Evidence Act, to refer the thumb impression of the 1st respondent/plaintiff found place in Ex.B2 partition deed to finger print expert for being compared with the thumb impression of the 1st respondent/plaintiff which may be obtained before the trial court and send the same through an Advocate Commissioner and to file a report to that effect. This petition was strongly contested by the 1st respondent/plaintiff and after hearing both sides, the learned Trial Judge had proceeded to dismiss the petition on 06.01.2010 on the ground that the revision petitioners had not substantiated the factum that the 1st respondent/plaintiff had only signed as Delli bai and that the 1st respondent/plaintiff could not be compelled to put her thumb impression before the Court for being compared with the disputed thumb impression found place in Ex.B2 partition deed.
5. Having been aggrieved by the impugned order, the revision petitioners stand before this Court with this revision.
6. Heard Mr. V. Baskaran, learned counsel appearing for the revision petitioners and Mr. S. Manohar, learned counsel appearing for the Eleveerapandian who is on record for the 1st respondent/plaintiff and Mr. A. Srinivasan, learned counsel appearing for the 3rd respondent.
7. Facts which are necessary for the disposal of this memorandum of Civil Revision are as under:-
The 1st respondent/plaintiff and the 1st revision petitioner/D3 are sisters. The 2nd revision petitioner and the respondents 2 and 3 / D2 and D4 are brothers. Their father is one A. Venkatasamy who is the 1st defendant in the suit (since deceased). Their mother late Kanthammal had purchased the vacant house site measuring 4880 sq. ft., bearing Door No. 11, 4th street, Kamaraj Nagar, Choolaimedu, Chennai under a registered sale deed dated 26.06.1956. Out of 4880 sq. ft., their mother had surrendered an extent of 600 sq. ft., to the Government for the purpose of expansion of Road. The remaining extent is 4280 sq. ft., Their mother had died on 12.07.1970. Since the request of the 1st respondent/plaintiff for effecting partition was ended in futile, she was constrained to file the above suit for partition claiming 1/5th share in the suit property.
8. The contention of the revision petitioners and the respondents 2 and 3 is that on 14.12.1998 a partition was effected between the legal heirs of the deceased Kanthammal and the same was reduced into writing and registered as document No. 3754/1998 on the same date in the Office of Sub-Registrar at Kodambakkam. It is also their case that the 1st respondent/plaintiff and the defendants 1 to 5 were parties to the above said partition deed dated 14.12.1998. In the said partition deed, the 1st respondent/plaintiff had signed as Delli bai and the said partition deed was accepted an
