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2008 (2) KLO 1572
IN THE HIGH COURT OF KARNATAKA
N. Kumar, J.
Regular Second Appeal No. 2726 of 2006
Parappa and Others - Appellant
Vs.
Bhimappa and Another - Respondents
Decided on 8-2-2008
CODE OF CIVIL PROCEDURE, 1908 - Order 26, Rule 10(2): [N.Kumar, J] Admissibility of an expert’s evidence - Criminal and Civil proceedings -Held, In a criminal case if the prosecution relies on the expert’s evidence to prove the charges against the accused mere production of the said expert’ report into Court is not sufficient. If the prosecution relies on a report of the expert, not only the report is to be produced, the author of the report is also to be examined in the Court on oath and an opportunity should be given to the accused to cross-examine the said expert on the correctness of the report. It is only then the said evidence becomes admissible and not otherwise. But, in a civil proceedings when an expert is appointed as a Commissioner by the Court at the instance of one of the parties to the proceedings, the Court may issue commission to such experts for the purpose of elucidating any matter in dispute directing him to make such investigation and to report thereon to the Court. The report of the Commissioner/Expert prepared and submitted on the orders of the Courts stands on a totally different footing in the matter of admissibility than a the report of an expert prepared at the instance of either of the parties of the suit or at the instance of the prosecution in a criminal case. Therefore, the Expert becomes a Commissioner only when court appoints him under Order 26 of the CPC. The expert is only a witness for the prosecution in a criminal case, and a witness for the party who appointed him in civil cases.
INDIAN EVIDENCE ACT, 1872 - Section 45: [N.Kumar,J] Evidence of finger impression - Admissibility -Held, When the thumb impression on the disputed document is disputed, the science of finger prints aids and guides the courts in resolving the dispute, if an expert’s evidence is made available. The evidence of finger impression is admissible. But the person giving his opinion as in other cases must be an expert. The Court is at liberty to use its own discretion and to affirm or to differ from the expert opinion. The evidence of an expert is in the nature of opinion evidence. It is advisory in nature. It is not conclusive. It is not substantive evidence. However, the Courts before acting on such an expert’s evidence insist corroborative evidence. It is not a rule of law. It is a rule of caution and prudence. The expert’s evidence should contain reasons. The Court should be careful in looking at such evidence and examining the same. Expert’s evidence would not become evidence automatically. The weight of the evidence is dependant on the correctness of the report, the reasons given and their expertise in the field.
INDIAN EVIDENCE ACT, 1872 - Section 67: [N. Kumar, J] Execution of unprivileged Wills - Held, In so far as the proof of Will is concerned, even the Registration and non-denial of execution would not prove the Will ipso facto. It has to be proved by examining the attesting witness. If the attesting witnesses are not alive, then Section 67 of the Evidence Act is attracted. If the attesting witnesses are not alive, persons who are well acquainted with the handwriting or signature of the attesting witness should be examined to prove the signature of the attesting witness. When the hand writing of a dead attesting witness have been proved, there is presumption of, in the absence of rebutting evidence, that they have witnessed the execution. When all the attesting witnesses are dead, requirement of law would be satisfied by any evidence showing that the document was executed in the presence of two attesting witnesses. Therefore, when attesting witness is not alive, the parties are not helpless and the law provides for proving the signature of the attesting witness also.
INDIAN EVIDENCE ACT, 1872 - Sections 67, 68 to 71: [N. Kumar, J] Proof of execution of a document -Held, Section 68 of the Evidence Act states that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there bean attesting witness alive, and subject to the process of the Court and capable of giving evidence. If the attesting witnesses are not alive, then Section 67 of the Evidence Act is attracted. If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting. Section 67 does not prescribe any particular mode of proof. In addition to usual modes, handwriting may also be proved by circumstantial evidence.
INDIAN SUCCESSION ACT, 1925 - Section 63:[N. Kumar,J] Execution of unprivileged Wills - Held, In so far as the proof of Will is concerned, even the Registration and non-denial of execution would not prove the Will ipso facto. It has to be proved by examining the attesting witness. If the attesting witnesses are not alive, then Section 67 of the Evidence Act is attracted. If the attesting witnesses are not alive, persons who are well acquainted with the handwriting or signature of the attesting witness should be examined to prove the signature of the attesting witness. When the hand writing of a dead attesting witness have been proved, there is presumption of, in the absence of rebutting evidence, that they have witnessed the execution. When all the attesting witnesses are dead, requirement of law would be satisfied by any evidence showing that the document was executed in the presence of two attesting witnesses. Therefore, when attesting witness is not alive, the parties are not helpless and the law provides for proving the signature of the attesting witness also.
The suit involves a property dispute among brothers and the wife of one brother, claiming partition of alleged joint family property purchased by their deceased mother Gangawwa via registered sale deed, with defendants relying on a Will bequeathing it to the third defendant. (!) (!) (!) (!) (!)
Plaintiffs alleged the Will is false and fabricated; defendants claimed the property was mother's self-acquired, proved by Will executed in sound disposing state of mind. (!) (!) (!)
Trial court issues included proof of Will's validity, plaintiffs' share entitlement, and adverse possession alternative. (!) (!) (!) (!)
Handwriting expert appointed as commissioner compared thumb impressions on Will (Ex.D-12) and sale deed (Ex.P-2), reporting they do not match (loop vs. whorl pattern). (!) (!) (!) (!)
Trial court rejected commissioner's report for not being marked/expert not examined and time gap (26 years), upheld Will based on scribe and witness evidence; appellate court reversed, accepting report. (!) (!) (!)
Commissioner's report under CPC Order 26 Rule 10(2) is evidence forming part of record without needing to be marked as exhibit or commissioner examined, unless party objects and examines to discredit. (!) (!) (!) (!) (!)
Distinction: Court-appointed commissioner/expert report admissible as evidence without formal proof; party/prosecution expert requires examination, marking, and cross-examination. (!) (!) (!) (!)
Thumb impression science is exact, patterns persist unchanging from birth to death, no two identical even in twins; expert opinion admissible but advisory opinion evidence, not conclusive, requires reasoned report and court scrutiny, preferably corroborated. (!) (!) (!) (!) (!) (!) (!)
For attested documents like Wills (Indian Succession Act S.63), proof under Evidence Act S.68 requires at least one attesting witness if alive; if dead, prove execution/ signatures under S.67 by handwriting experts or acquainted persons, with presumption of attestation if signatures proved. (!) (!) (!)
Registration/non-denial does not prove Will; scribe/present witness evidence proves testator's state/capacity but not attestation if they do not address it. (!) (!) (!)
Here, attesting witnesses dead, no proof of their signatures/attestation; commissioner's report (unobjected) discredits thumb impression, Will not proved. (!) (!)
Trial court erred in rejecting report and relying on inadequate evidence; appellate court correctly re-appreciated evidence, held Will invalid, decreed plaintiffs' 1/3rd share. (!) (!) (!)
Second appeal substantial questions: Evidentiary value of unmarked/unproved commissioner report; weight of fingerprint evidence; Will proof sans attesting witnesses. (!) (!) (!)
Second appeal dismissed, confirming plaintiffs' partition entitlement. (!) (!)
Kumar, J.
This is defendants’ second appeal against the judgment and decree of the lower appellate Court, which has decreed the suit of the plaintiffs for partition and separate possession of their 1/3rd share in the suit schedule properties.
2. For the purpose of convenience, the parties are referred to as they are referred to in the original suit.
3. Plaintiffs-1 and 2 and defendants-1 and 2 are brothers. Third defendant is the wife of the first defendant. The case of the plaintiffs is that suit schedule properties are joint family properties. It has got three portions abutting each other. Plaintiffs and defendants-1 and 2 are in joint possession of the same. After the death of their mother Gangawwa, misunderstanding arose between the parties. When the plaintiffs demanded their legitimate share in the suit schedule properties, the defendants flatly denied their right by showing a document styled as Will, which according to the plaintiffs is false, fabricated, concocted and bogus. On the basis of the alleged Will, the third defendant is attempting to get her name created in the Municipal records with the help of defendants-1 and 2. Second defendant died on 17.01.2001 issueless and intestate. Therefore the plaintiffs have filed the present suit for their 1/3rd share in the suit schedule properties.
4. Defendants contested the claim by filing detailed written statement. They contended that their father died 40 years back. He had no self acquired properties or ancestral properties. The suit schedule properties never constituted Hindu Joint Family Properties. In fact, they did not constitute joint family at all. Their specific case is that the deceased Gangawwa, their mother, during her lifetime worked hard and earned her livelihood. The first defendant helped her mother and out of her own funds she purchased the suit schedule property under a registered sale deed for a sale consideration of Rs.500-00 from Ramachandra Dasharath Sattikar on 06.03.1964. On the date of purchase, the suit schedule property was numbered as TPC Teradal No.541 which consists of open space and a house. She purchased the property in her name and the property stood in her name till her death. Therefore, it is her self acquired property. Smt. Gangawwa bequeathed the suit schedule properties in favour of the third defendant under a Will dated 26.01.1991. The said Will is legal, genuine and valid and it is her last Will. The third defendant and her husband nourished the deceased Gangawwa and looked after her affectionately during her life time till her death and therefore she bequeathed the schedule property exclusively to the third defendant. Therefore, they contended that plaintiffs have no right over the suit schedule property and are not entitled to 2/3rd share. Therefore, they sought for dismissal of the suit.
5. The trial Court framed the following issues:
1a) Whether defendant No.3 proves that the deceased Gangawwa has bequeathed suit property in her favour in sound disposing state of mind, voluntarily, and the said will is legal and valid?
1b) Whether the plaintiffs prove that, the suit property is available for partition and they together have ½ share in it?
2) Whether the plaintiffs are entitled to get the declaration sought for?
3) Whether the valuation made and C. F paid is not proper and not sufficient?
4) Whether the plaintiffs are entitled to get the separation of share sought for?
5) Whether the defendants are entitled to get the compensatory cost sought for?
6) What order or decree?
Addition issue
1) Whether the defendants proves that alternatively they have perfected title over suit property by adverse possession as claimed in para-7 of additional W. S. ?
6. The second plaintiff was examined as P.W.-1 and they examined one witness as P.W-2. They produced two documents, which were marked as Exs.P-1 and 2. On behalf of defendants, the third defendant was examined as D.W-1 and she examined the scribe and another witness who is said to have been
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