IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 16TH FEBRUARY 2010 / 27TH MAGHA 1931 FAO.No. 305 of 2007() --------------------- AS.131/2004 of PRINCIPAL SUB COURT, NORTH PARAVUR OS.20/2001 of MUNSIFF COURT,ALUVA .................... APPELLANTS - RESPONDENTS 1 & 2 - DEFENDANTS 1 & 2 --------------------------------------------------------------------- 1. SMT. LATHA DEVI, W/O. LATE RAJAGOPAL, SREEVILASATHIL, KAKKANAD KARA. 2. UNNIRAJAN, AGED 7 YEARS, (MINOR), S/O. LATE RAJAGOPAL, REP. BY HIS MOTHER AND NATURAL GUARDIAN, SMT. LATHA DEVI, -DO- BY ADV. SRI.KURIAN GEORGE KANNANTHANAM SRI.THOMAS GEORGE RESPONDENT(S): APPELLANTS-RES. 3 & 4 -PLAINTIFFS - DEF. 3 & 4 ------------------------------------------------------------- 1. MADHAV R., S/O. HEMA NAIR, JIJI VILLA, HOUSE NO.35/1769, SOUTH JANATHA ROAD, PALARIVATTOM KARA, COCHIN CORPORATION. 2. SMT. VIMALA DEVI, PULARKAD KALLARACKAL, THOTTUMUGHAM KARA, ALUVA EAST VILLAGE. 3. SMT. GEETHA, PULARKAD KALLARACKAL, THOTTUMUGHAM KARA, ALUVA EAST VILLAGE. ADV. SRI.B.JAYASANKAR THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 16/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER IN I.A.NO.3848 OF 2007 IN FAO 305 OF WOOY DISMISSED 16.2.2010 SD/= M.N. KRISHNAN, JUDGE. /TRUE COPY/ P.A. TO JUDGE. cl M.N. KRISHNAN, J. ........................................... F.A.O.No.305 OF 2007 ............................................. Dated this the 16th day of February, 2010. J U D G M E N T This appeal is preferred against the order of remand passed by the Subordinate Judge, North Paravur in A.S.No.131/2004. The said appeal was preferred against the judgment and decree in O.S.No.20/2001 of Munsiff Court, Aluva. The brief facts necessary for the disposal of the appeal are stated as follows: 2. One Rajagopal, who has executed a Will, had a wife and son and after the divorce of the first wife, married Smt. Latha Devi and had a son by name Unni Rajan or in other words at the time of death of Sri. Rajagopal, he had left behind his son in the divorced wife and also his widow (second wife) and the child born through her. Plaintiff is the son in the first wife and defendants 1 and 2 are the wife and son of Sri. Rajagopal. The said Rajagopal obtained A schedule property by virtue of a gift deed and obtained B schedule property by virtue of a partition deed-Ext.B1. So if Rajagopal had died in the intestate, his property would have : 2 : F.A.O.No.305 OF 2007 devolved upon the three, but the crux of the case is that, it is contended that, Rajagapal during his life time had executed a Will and his entire property described in A and B schedule devolved upon his second wife and son namely defendants in the suit and therefore it is contended that the plaintiff is not entitled to any share. But the plaintiff in the suit contends that the Will is not a genuine document. It is also contended that there are suspicious circumstances even regarding the execution of the Will and so it cannot be accepted and the property has to devolve upon him as per the provisions of the Hindu Succession Act. 3. The trial court referred the matter to a handwriting expert and obtained a report and the said expert was examined as PW2. As per the report, it is stated that, the disputed signature in the Will when compared with the admitted signature sent for comparison did reveal that the signatures are not put by one and the same person and therefore it was against the defendants in the case. The trial court then suddenly decides that the evidence of the witness etc is acceptable and therefore granted a decision : 3 : F.A.O.No.305 OF 2007 in favour of the defendants. It is against that decision, the appeal was preferred before the Subordinate Judge's court and the learned Subordinate Judge on a request by the appellants in the case held that there can a a comparison of the signature in Ext.B1 with that of Ext.B5, the disputed document. 4. I may have to state that the evidence tendered by the expert is not conclusive. It is just like other evidence. But one has to bear in mind that it is prepared on the basis of a scientific investigation. In order to totally throw it away, there must be substantial scientific materials and then alone it can be ignored. The trial court did not consider that aspect at all, but decided to rely upon the evidence of the other witnesses, scribes etc and arrived at a decision that the Will is genuine. The trial court opined that since direct evidence is preferable, there is no need to rely upon the expert evidence. Certainly it was a matter that could have been accepted, had the trial court decided the matter by examining the witnesses and not referring the documents for comparison of signature. When a particular scientific : 4 : F.A.O.No.305 OF 2007 material is available before the court, the court has to give due weight to it also and on satisfaction if it is not acceptable, certainly throw it away. But after obtaining a scientific expert's opinion, the court cannot simply state that it can rely on direct evidence. It may cause injustice to one of the parties. There was a request at the trial stage for comparison of signature by the court. It has to be stated that Section 73 of the Evidence Act permits the court to have comparison of signatures It has been held by the apex court that it is the most hazardous task and under ordinary circumstances, the court shall not venture to compare the signature. But the court also made it clear that when other evidence is available, it can be looked into and then a comparison may also be done so as to satisfy the conscience of the court regarding the correctness of the signature. Therefore, the reason stated by the trial court for ignoring the scientific evidence is not proper. There has been a contention for the defendants in the suit that the signature which is summoned as admitted signature is not the signature of Rajagopal. Therefore it is always desirable : 5 : F.A.O.No.305 OF 2007 that in stead of deciding whether it is an admitted signature or not, always profitable to send an admitted signature of Rajagopal admitted by both the parties, so that on the admitted signature at least there will not be any dispute. When the admitted signature is compared with the disputed signature by an expert, the court will have scientific materials before it. This is what is precisely done by the appellate court. 5. Therefore the remand order passed by the trial court need not be disturbed and the trial court is directed to send the disputed document along with the admitted signature of Rajagopal found in Ext.B1 for comparison and after obtaining the report, permit both the parties to adduce evidence, and to look into the earlier report as well as the evidence available before the court and then decide the matter in accordance with law especially realising that the court is sitting in the armchair of testator who is not available before the court and the court should satisfy itself about the execution of the document as well that, it is beyond any suspicious circumstances. With the materials available, : 6 : F.A.O.No.305 OF 2007 let the matter be decided and the parties be permitted, if necessary after obtaining the report of the expert, to adduce further evidence and the matter be disposed of in accordance with law. I make it clear that I have not expressed any final opinion in the matter and it is entirely left to the trial court to re appreciate the whole matter and then dispose of it in accordance with law. Being an old matter, let the matter be disposed of as expeditiously as possible, at any rate, on or before 30.6.2010. Disposed of accordingly. M.N. KRISHNAN, JUDGE cl : 7 : F.A.O.No.305 OF 2007 cl