The revision petitioners are the defendants in O.S No. 1872 of 1996 on the file of the I Additional District Munsif Court, Salem. The revision is filed aggrieved against the order dated 19.7.2004 and made in I.A No. 889 of 2004, which was filed to send the document marked as Ex.X-1 dated 26.12.1995 in favour of P.W.2 Ponnusamy by C.K Dhanapal, Chinnappan, Govindaraju, Thangaraju and Chinnammal (plaintiff), mainly for the purpose of comparing the signatures and thumb impression of the vendors along with their admitted signatures by Handwriting Expert or Finger Print Expert, Forensic Laboratory, Director General of Police, Chennai or any other Expert by appointing an advocate-commissioner to take the document to the Expert.

2. The respondent as plaintiff filed the suit against her brother, the first defendant and the second defendant, who is the son of another brother of the plaintiff, by name Kandasamy and claiming that the suit properties are the self-acquired properties of the mother Perumayee Ammal and her husband also died. It is the case of the plaintiff that Perumayee Ammal purchased item 1 of the suit properties from Kuppa Gounder and his minor sons as per the sale deed dated 24.5.1972 and she also purchased the second item from one Chinnasami Naicker and his minor son as per sale deed dated 23.1.1950 Therefore, claiming her 1/3rd share in the suit properties, the partition suit was filed.

3. The revision petitioners as defendants 1 and 2 filed written statement disputing the fact that the plaintiff is the daughter of Perumayee Ammal and Perumal Gounder and denying that the first defendant is the brother of the plaintiff and Kandasamy, who is the father of the second defendant. It is admitted that the suit properties are self-acquired properties of Perumayee Ammal. The suit is also resisted that Perumayee Ammal executed Will in favour of C.K Dhanapal, C. Govindaraj and C. Thangaraj on 28.7.1995 and subsequently she died on 30.8.1995 and as such, the Will has come into force. Therefore, according to the defendants 1 and 2, the plaintiff and the defendants had no share in the suit properties.

4. It appears, the plaintiff has let in evidence in the suit by examining herself as P.W.1 and examined one Ponnusamy as P.W.2 to produce the sale agreement dated 26.12.1995 in his favour executed by the defendants 1 and 2 and the plaintiff and one C. Govindaraju and C. Thangaraju and the same has been marked as Ex.X-1. The defendants have denied the execution of Ex.X-1, sale agreement in favour of P.W.2 along with the plaintiff and two others and it is their case that the sale agreement is a forged document. Therefore, to compare the signatures in the sale agreement of the defendants and C. Govindaraju and C. Thangaraju and thumb impression of the plaintiff, the defendants filed the petition in I.A No. 889 of 2004. The petition was opposed in the counter filed by the plaintiff.

5. The trial Court dismissed the petition, considering that the suit is pending for more than 7 years and that there is no necessity to compare the signatures of C.K Dhanapal, Chinnappan, Govindaraju, Thangaraju and the thumb impression of the plaintiff as claimed by the defendants 1 and 2 for that purpose the petition I.A No. 889 of 2004 was filed.

6. The document Ex.X-1 has been marked mainly to say that the plaintiff has been described as the daughter of Perumal Gounder, in which the first defendant is also described as the son of Perumal Gounder along with C. Govindaraju and C. Thangaraju, who are the sons of the first defendant.

7. The learned counsel for the revision petitioners submitted that inasmuch as the document marked as Ex.X-1 through P.W.2 is disputed as not executed by the second defendant and the first defendant along with his two sons, viz., C. Govindaraju and C. Thangaraju, in which the first defendant is described as the son of Perumal Gounder and the plaintiff is described as the daughter of Perumal Gounder, it is just and necessary that the signatures of the defendants and the sons of the first defendant and the thumb impression of the plaintiff have to be compared along with the admitted signatures and thumb impression of the persons concerned. In support of the contentions, the learned counsel for the revision petitioners relied on the following decisions: —

(1) Venkatalakshmiah v. Venkatappa and another reported in 1991 1 M.L.J 383, in which this Court has held thus: —

“The decision in R. Ramaswami v. Seethamma, (1990) 2 L.W 15, only says that it is not essential that the Handwriting Expert must be examined to prove or disprove a writing and that the Court is competent to compare the disputed writing with the admitted writing. But that does not mean that in no case, the court could allow a party to establish his case by having the disputed handwriting examined by a Handwriting Expert. May be the court also can do the comparison of the disputed signature with any admitted signature and arrive at a decision in that regard. But when the defendants choose to have the benefit of the Handwriting Expert also to prove their case, they cannot be prevented unless their attempt is very much belated or with any ulterior motive.”

(2) C. Gargaiah, s/o Late Chickveeraiah v. The Deity Sri Shani Mahatma reported in A.I.R 1995 Karnataka 287, in which it is held that the High Court cannot interfere in the revision in the appointment of commissioner for comparing the disputed signature of executant of gift deed with that of his admitted signatures.

(3) Kothandapani Padayachi v. Ranganatha Padayachi and others reported in 1997 1 M.L.J 304, in which, this Court has held thus: —

“This Court as well as the Supreme Court have been indicating that although there is no legal bar to the judgment using his own eyes to compare the disputed writing with the admitted writing, he should, as a matter of prudence and caution, hesitate to base his finding solely on comparison made by himself. The prudent course is said to lie in obtaining the opinion and assistance of the expert also. It is equally reiterated that prudence demands that the court should be extremely slow in venturing an opinion on the basis of mere comparison since a comparison of handwriting is at all times a mode of proof hazardous and inclusive and especially when it is made by one not conversant with the subject and without such guidance as might be derived from the evidence of experts.”

(4) Dhanakodi Padayachi v. Muthukumaraswami reported in 1997 II M.L.J 37, in which this Court has held thus: —

“The role of the court while exercise the powers under Section 73 of the Evidence Act and method of approach to be adopted would vary also depending upon the relative facts and circumstances of the case. In the light of the principles laid down by the Apex Court in the latest pronouncement referred to above, one of the reasons assigned by the learned first appellate Judge in this case to reverse the finding of the learned trial Judge which has been recorded on undertaking a comparison by himself of the disputed signature with the admitted signatures cannot be said to be wholly erroneous in law or an unjustified criticism of the method of test adopted by the learned trial judge in the case.”

(5) Bomma Naicken v. Chinna Gounder reported in 1998 3 L.W 407, in which this Court has held that mere comparison of thumb impression without seeking assistance of an expert is not proper.

(6) K. Thangavel Udayar and another v. Kanthayee Ammal alias Leela and others reported in 2000 M.L.J(Supp.) 131, in which this Court has held that the finding of the trial Court on visual comparison of documents without expert aid cannot be conclusive.

(7) Somasundaram v. Palani reported in 2001 1 L.W 511, in which this Court has held that it is settled law that the Court cannot act as an expert. It is further held thus: —

“Even though the Court may have the power to compare the signatures, there must be some admitted signature of the defendant, on the basis of which a comparison will have to be made. In this case, a comparison has been made on the basis of signatures affixed by defendant in the vakalath and written statement, which are documents that have come into existence after the dispute arose, and after the promissory note in question was filed into Court along with plaint. A comparison should not have been made on the basis of those signatures. If that be so, it has to be held that the comparison was not made in accordance with law, even though the Court is empowered to make a comparison.”

(8) Bhagirati Sahu and others v. Akapati Bhaskar Patra reported in AIR 2001 Orissa 185, in which it is held thus: —

“The Court should not have taken on to itself the task of comparing the handwriting for the proper assessment of the value on the total evidence. Proof of handwriting is in nature of comparison of the admitted and the disputed signature or handwriting. Section 73 of the Evidence Act authorises the Court to compare such handwriting in order to come to its own conclusion, but it is always safe for the Court to take the aid of handwriting expert who were equipped and have the expertise to scientifically compare such handwriting with reasons and place their report which may induce the Court to form its own judgment by its own observation of those materials.”

(9) Devaraju Padayachi v. Sivasankara Padayachi reported in 2004 (4) CTC 699 and

(10) Chikkanan v. A.R. Perumal reported in 2004 (5) CTC 414, in which this Court has held that the disputed signatures have to be compared by the Handwriting Expert along with the admitted signatures.

8. The learned counsel for the respondent/plaintiff submitted that the document Ex.X-1, the sale agreement being the original cannot be sent for comparison of signatures of the second defendant and the first defendant and his two sons, viz., C. Govindaraju and C. Thangaraju and thumb impression of the plaintiff to the Handwriting Expert along with the admitted signatures and thumb impression of the persons concerned, inasmuch as no reliance is placed upon the document for deciding the dispute in the suit and only for the purpose to show that the plaintiff is described as the daughter of Perumal Gounder and since the paternity of the plaintiff is disputed, the document has been marked through P.W.2

9. The plaintiff filed the suit for partition claiming that she is entitled to 1/3rd share in items 1 and 2 of the suit properties. It is the case of the plaintiff that the suit properties are self-acquired properties of her mother Perumayee Ammal and Perumayee Ammal purchased item 1 of the suit properties from Kuppa Gounder and his minor sons as per sale deed 24.5.1972 and the second item of the suit properties was purchased, as per sale deed dated 23.1.1950 and as such, according to the plaintiff, since her father Perumal Gounder also died, she is entitled to 1/3rd share in the suit properties and her brother, the first defendant is entitled to 1/3rd share and the second defendant, who is the son of another brother, the deceased Kandasamy, is entitled to 1/3rd share.

10. Both defendants resisted the suit in their written statement filed by them that the plaintiff is not the daughter borne to Perumal Gounder through his wife Perumayee Animal and as such, the plaintiff is not entitled to any share much less 1/3rd share in the suit properties. Therefore, in order to prove that the plaintiff is the daughter born to Perumal Gounder through his wife Perumayee Ammal, the plaintiff has examined P.W.2 Ponnusamy to speak to the said fact and also marked the document Ex.X-1 dated 26.12.1995

11. But, it is claimed that the sale agreement Ex.X-1 in favour of P.W.2, Ponnusamy, alleged to have been executed by the plaintiff, the second defendant and the first defendant along with his two sons, Govindaraj and Thangaraj, is not tested in the Court of law by filing suit for specific performance of the agreement of sale and it is the evidence of P.W.2 that the time for performance of contract is being extended to. According to the plaintiff, she is described as the daughter of Perumal Gounder and the first defendant is described as the son of Perumal Gounder in the said agreement. The defendants disputed the document and according to them no such agreement was entered into by the second defendant, first defendant along with his two sons and the plaintiff in favour of P.W.2 Ponnusamy and they also disputed the signatures of the second defendant, first defendant and his two sons Govindaraj and Thangaraj in the document Ex.X-1 and also the thumb impression of the plaintiff.

12. Therefore, it is clear that the crux of the entire case rests upon the document Ex.X-1 and it is very much relied on by the plaintiff in support of her case that she is the daughter of Perumal Gounder borne through his wife Perumayee Ammal to whom admittedly, the suit properties belonged to in view of the purchase as per the sale deeds referred to above. Inasmuch as the signatures of the second defendant, first defendant and his two sons in the said agreement Ex.X-1 and also the thumb impression of the plaintiff in that document is challenged, it is just and proper that the document is to be tested and examined by the Handwriting Expert to find out as to whether the signatures and thumb impression in the document claimed to be the signatures of the second defendant, first defendant and his two sons and the thumb impression of the plaintiff, are that of the second defendant, first defendant and his two sons and of the plaintiff. In that view, the defendants have made out their case for sending the document Ex.X-1 to the Handwriting Expert by appointing advocate-commissioner mainly for the purpose of comparing the signatures and thumb impression in the document Ex.X-1, in that the document is very much relied upon by the plaintiff to show and find out as to whether the plaintiff is the daughter of Perumal Gounder born through his wife Perumayee Ammal to whom it is alleged, the suit properties belonged to as the self-acquired properties. It follows, the dismissal of the petition by the trial Court by stating that the suit is pending for more than 7 years and therefore, there is no necessity to compare the signatures of the second defendant, first defendant and his two sons and the thumb impression of the plaintiff along with admitted signatures and thumb impression, cannot be said to be proper and the trial Court has committed an error in the approach made for dismissing the petition. Therefore, the order of the trial Court is to be set aside.

13. In the result, the Civil Revision Petition is allowed, setting aside the order dated 19.7.2004 in I.A No. 889 of 2004 in O.S No. 1872 of 1996 passed by the I Additional District Munsif, Salem. I.A No. 889 of 2004 in O.S No. 1872 of 1996 is allowed and the trial Court is directed to pass consequential orders in this matter. No costs. Consequently, the connected petition C.M.P No. 13776 of 2004 is closed.

VCJ/VCS