APHC010533112024
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI
(Special Original Jurisdiction)
[3330]
WEDNESDAY, THE TWELFTH DAY OF MARCH
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE SRI JUSTICE TARLADA RAJASEKHAR RAO
CIVIL REVISION PETITION No: 2973/2024
Between:
Manduva Hanumantha Rao ...PETITIONER
AND
Manduva Srinivasa Rao and Others ...RESPONDENT(S)
Counsel for the Petitioner:
1.N SASIKALA
Counsel for the Respondent(S):
1.MADHAVA RAO NALLURI
The Court made the following:
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ORDER:
The petitioner herein, who is the plaintiff in O.S.No.374 of 2014
on the file of the Family-cum-VIII Additional District Judge, Prakasam at
Ongole, filed suit for partition against the respondents/defendants. The
petitioner/plaintiff and the 1
st respondent/ 1st defendant are the sons of
Manduva Seshaiah, born in wedlock with Venkata Subbamma.
2. The said suit was defended by the 1st respondent-1
st defendant
on the ground that there is already a partition has taken place, vide
registered partition deed vide document No.1076/1997 dated
26.03.1997 and also has taken another stand that the father of the
petitioner has executed a Will dated 15.10.1998 in favour of the 1st
respondent/defendant.
3. In the said suit, the petitioner-plaintiff filed I.A.No.1542 of 2024
under Section 39 of the Bharatiya Sakshya Adhiniyam, 2023, to send
the unregistered Will Ex.B5 which is said to have been executed by
M.Seshaiah for expert opinion to compare the signatures of M.Seshaiah
with the admitted signatures in the registered partition deed dated
26.03.1997, to disprove the said Will as fabricated.
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4. The said I.A.No.1542 of 2024 was dismissed vide order dated
29.10.2024 on the ground that Ex.B1 is not contemporaneous document
with that of Ex.B5 and, in the absence of any such contemporaneous
document, sending the document to expert is nothing but futile exercise
and, accordingly, I.A.No.1542 of 2024 filed under Section 39 of the
Bharatiya Sakshya Adhiniyam, 2023, was dismissed.
5. Assailing the said order dated 29.10.2024, the present
C.R.P.No.2973 of 2024 is filed on the ground that the observation of the
learned trial Court Judge is contrary to law and Ex.B.1 is dated
26.03.1997 and Ex.B.5-Will is dated 15.10.1998 and both are
contemporaneous documents and the dismissing of application in
I.A.No.1542 of 2024 filed to send for the expert opinion is erroneous.
6. Learned counsel appearing for the petitioner has relied on the
judgment of the erstwhile common High Court in the case titled as
Bande Siva Shankara Srinivasa Prasad Vs. Ravi Surya Prakash Babu
and others1
and also the judgment in the case of M/s. Janachaitanya
Housing Ltd., Ameerpet Vs. M/s. Divya Financiers2
for the proposition
that what is the meaning of contemporaneous and what is the measure
1 AIR 2016 Hyderabad 118 Full Bench
2 AIR 2008 A.P. 163
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of contemporaneity and contended that the gap between two
documents is very less and the second judgment relied for the
proposition that the delay cannot be a ground to reject the application to
send for expert opinion, hence prayed to set aside the order and
consequently prayed to direct the trial Court to send the document for
expert opinion for doing substantial justice.
7. Learned counsel appearing for the 1st respondent-1
st defendant in
the suit has filed memo dated 12.12.2024 and filed Ex.B.1-registered
partition deed and the deposition of P.W.1, i.e., the petitioner-plaintiff.
8. For facility, Section 39 of the Bharatiya Sakshya Adhiniyam,
2023, is extracted hereunder:
"Section 39 in Bharatiya Sakshya Adhiniyam, 2023
39. Opinions of experts.
(1)When the Court has to form an opinion upon a point of foreign
law or of science or art, or any other field, or as to identity of
handwriting or finger impressions, the opinions upon that point of
persons specially skilled in such foreign law, science or art, or any
other field, or in questions as to identity of handwriting or finger
impressions are relevant facts and such persons are called
experts."
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9. The case of the petitioner herein is that the 1
st respondent-1
st
defendant filed I.A.No.1184 of 2024 to receive the document Ex.B.5-Will
at a belated stage and the same was allowed by the Court and it is the
case of the petitioner-plaintiff that his father has never executed any Will
and the same was forged by the 1st respondent-1
st defendant in the suit
and in order to disprove the signature on the Ex.B5-Will, it is necessary
to file the present application to send for expert opinion, which would
meet the ends of justice and there is no such delay on the part of the
petitioner herein in filing the application, as the 1st respondent-1
st
defendant filed the said document in 2024 under Order 8 Rule 1(A)(3) of
C.P.C. and the same was allowed by the trial Court.
10. As seen from Ex.B.1 registered partition deed dated 26.03.1997
and Ex.B.5-Will dated 15.10.1998, the said documents can be
considered as contemporaneous documents and there is element of
contemporaneity. The judgment of the Full Bench of the common High
Court in Bande Siva Shankara Srinivas Prasad’s case (1 supra), the
common High Court by framing an issue “What is the meaning of
contemporaneous; and what is the measure of contemporaneity”, held
as hereunder:
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"b) What is the meaning of contemporaneous; and what is
the measure of contemporaneity.
Comment: Contemporaneous means occurrence at same
period of time. No specific measure could be assigned to the
element of contemporaneity. One of the famous authors in
the field of examination of documents, Ordway Hilton, in his
famous book Scientific Examination of Questioned
Documents, states that material written two or three years
before or after the disputed writing serve as satisfactory
standards and the same is enunciated in page 11 of
Annexure enclosed."
11. The Division Bench of the common High Court has also held in
M/s. Janachaitanya Housing Ltd., Ameerpet Vs. M/s. Divya Financiers’s
(2 supra) that “No time could be fixed for filing applications under
Section 45 of the Indian Evidence Act for sending the disputed signature
or writings to the handwriting expert for comparison and opinion and
same shall be left open to the discretion of the Court, for exercising
such discretion when exigencies so demand, depending upon the facts
and circumstances of the each case.”
12. As seen from the two judgments stated supra, the trial Court has
erroneously dismissed the present application filed for sending the
document to expert opinion on the ground that the said document is not
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contemporaneous document. As seen from both the documents, there
is a time gap of 1½ years and the object of sending the document for
expert opinion is to compare the disputed signatures with the admitted
signatures which are in contemporaneous and there should not be any
chance of changing the signature intentionally. In the present case, the
said two documents are contemporaneous and there is no such huge
gap of 2 to 3 years and the said two documents are old documents and
there is no question of any intentionally changing the signatures that it
would arise.
13. The petitioner herein has also filed I.A. to receive the original
registered partition deed in the place of Ex.B.1 filed by the petitioner
herein, which is a certified copy.
14. In view of the aforesaid discussion, the Civil Revision Petition is
allowed setting aside the order dated 29.10.2024 in I.A.No.1542 of 2024
in O.S.No.374 of 2014 on the file of the Family-cum-VIII Additional
District Judge, Prakasam at Ongole, and consequently, the said
I.A.No.1542 of 2024 is allowed and the trial Court is hereby directed to
send the document for expert opinion. There shall be no order as to
costs.
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As a sequel, interlocutory applications pending, if any, in this
case, shall stand closed.
__________________________________
JUSTICE TARLADA RAJASEKHAR RAO
Date:12.03.2025
siva
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THE HON’BLE SRI JUSTICE TARLADA RAJASEKHAR RAO
CIVIL REVISION PETITION No.2973 OF 2024
Date: 12.03.2025
siva
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