T.V. Narayana Panicker and others v. Indira Devi

RFA No.50-2015 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **TUESDAY, THE 22ND DAY OF SEPTEMBER 2020 / 31ST BHADRA, 1942** ## **RFA.No.50 OF 2010** **AGAINST THE ORDER/JUDGMENT IN OS 105/1997 DATED 23-06-2009 OF III ADDITIONAL SUB COURT, KOZHIKODE** ## **APPELLANT/PLAINTIFF** **1 T.V.NARAYANA PANICKER S/O. APPU NAIR, LAXMI SADANAM, CHERUVANNUR, KOZHIKODE. (DIED)** ## **ADDITIONAL APPELLANTS 2 TO 5 IMPLEADED** > ADDL. **APPELL C.P.VIJAYALAKSMI, ANT 2 AGED 61 YEARS W/O. LATE T.V.NARAYANA PANICKER, LAXMI SADANAM, CHERUVANNUR, KOZHIKODE.** > ADDL. **APPELL C.P.PARVATHI ANT 3 AGED 37 YEARS D/O. LATE T.V.NARAYANA PANICKER, LAXMI SADANAM, CHERUVANNUR, KOZHIKODE.** > ADDL. **APPELL VRINDHA C.P. ANT 4 AGED 39 YEARS D/O. LATE T.V.NARAYANA PANICKER, LAXMI SADANAM, CHERUVANNUR, KOZHIKODE.** > ADDL. **APPELL HARIPRASAD C.P. ANT 5 AGED 41 YEARS S/O. LATE T.V.NARAYANA PANICKER, LAXMI SADANAM, CHERUVANNUR, KOZHIKODE.** **LEGAL REPRESENTATIVES OF DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 5 VIDE ORDER DATED 29/1/14 IN IA 2692/13** **BY ADVS. SRI.P.R.VENKETESH SRI.P.R.RAJA SRI.K.S.BHARATHAN** RFA No.50-2015 2 ## **RESPONDENT/DEFENDANT** **INDIRA DEVI W/O.P.K.NAIR, SAMVAI TOWER, 305-694/1,BEHIND TELUNGU, ACADEMY, NEAR NARAYANA GUDA, FLAT NO.204,, HYDERABAD - 29.** **R1 BY GOVERNMENT PLEADER R1 BY ADV. SRI.P.K.SAJEEV R1 BY ADV. SRI.V.SREENATH** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 26-08-2020, THE COURT ON 22-09-2020 DELIVERED THE FOLLOWING:** RFA No.50-2015 3 ## **JUDGMENT** Aggrieved by the dismissal of the suit filed for realisation of money, the plaintiff in O.S.No.105/1997 on the file of the IInd Addl.Sub Court, Kozhikode has come up with this appeal. 2. The case pleaded by him is that on 8.7.1994 the defendant borrowed a sum of Rs.8 lakhs from him promising to repay the same with interest. A promissory note was also executed on the very same day in the presence of witnesses. Thereafter she had paid a sum of Rs.38,400/- as interest and a further sum of Rs.2,50,000/- towards the principal amount. The balance amount due is Rs.7,18,400/-. Hence, the suit. 3. The defendant/respondent denied the execution of the promissory note as well receipt of an amount of Rs.8,00,000/-. She has also denied payment of interest or any amount towards the principal amount. There is no cause of action for the suit against her and she is not entitled to pay any amount to the plaintiff, is the stand taken by her. 4. In the additional written statement she has contended that RFA No.50-2015 4 the parties are relatives and she (the defendant) had claimed partition of the co-ownership property which is in the possession of the plaintiff. There was a dispute between the brothers and the sisters regarding partition of the property and later agreed to assign their right in favour of the defendant and thereafter she approached her sister and requested for partition of her share, but she failed to do so and later filed suit for partition. This suit is filed as a counter blast to avoid partition. However, the partition suit was settled and the suit was dismissed. In short it is contended that the plaintiff is not entitled for a decree for realisation of money from the defendant. 5. Before the court below the plaintiff and one witness were examined as Pws 1 and 2. Exts.A1 to A29 were marked on his side. Dws1 to 4 were examined on behalf of the defendant and CW1 was also examined. Exts.B1 to B12, C1 to C3 and X1 to X3 were also marked. 6. Heard the learned counsel for the plaintiff/appellant and the learned counsel for the defendant/respondent. The parties are referred to as the plaintiff and the defendant. 7. Ext.A1 is the suit document relied on by the plaintiff to recover a sum of Rs.7,18,400/-. The plaintiff as PW1 reiterated the RFA No.50-2015 5 plaint claim and tendered evidence to the effect that execution of Ext.A1 promissory note by the defendant was in the presence of two witnesses. The execution of Ext.A1 is denied by the defendant by raising definite contention. The plaintiff in his attempt to prove the document, out of the two witnesses examined PW2 in support of the case. According to the plaintiff, Ext.A1 was executed between 10.30 and 11.a.m at his residence in the presence of PW2 and the other witness. But PW2 has a case that the document was executed while he had gone to the residence of the plaintiff at 9.30 on the particular day to collect the subscription of the newspaper supplied by him. According to him the execution of Ext.A1 was 9.30 a.m. But the plaintiff has no such a case. His definite case is that the execution of the document was between 10.30 a.m and 11.a.m. Since the defendant had denied the execution of the promissory note as well the capacity of the plaintiff to advance a sum of Rs.8 lakhs to the defendant on request, the burden to prove the same is definitely on the plaintiff. 8. It is significant to note that since execution of the document was denied by the defendant the document was forwarded for examination by a handwriting expert of forensic science laboratory, Trivandrum from where Ext.C2 report was called for by the court. But RFA No.50-2015 6 in Ext.C2 report it was reported that it was not possible to arrive at a conclusion regarding the questioned item marked as item No.Q1 with the standard specimen marked as A1 to A4. The item marked as Q-1 is the signature and writing in the disputed promissory note dated 8.7.1994. The standard items supplied are Exts.A1 to Ext.A4 and the specimen writing is S1. So the handwriting expert has reported that it was not possible to give a conclusive opinion regarding the authorship of the disputed signature in Ext.A1. 9. The records would further reveal that the said document was again forwarded to another handwriting expert at the instance of the defendant, P.T. Ashok Kashyap a renowned handwriting expert. As per Ext.C3 report the expert after examination of Ext.A1 document submitted the following report. ## “OPINIONS In view of the above noted observations and considering them cumulatively, the following is my opinion:- 1. The suspected signature marked Q-1 on the Promissory Note dated 8.7.1994 is forged and has not been written by the author of authentic signatures marked A-series. 2. The above mentioned suspected signature marked Q-1 is a bungling freehand forgery & shows a piecemeal execution. 3. The suspected bodywriting marked Q on the Promissory RFA No.50-2015 7 Note dated 8.7.1994 is forged and has not been written by the author of the authentic bodywritings marked A & S series.” 10. So as per Ext.C3 the disputed signature is a forged one. After receipt of Ext.C3 report the plaintiff has filed a petition with a request to set aside the report and for examination of the expert. Though the request to examine the witness was allowed batta was not remitted by the plaintiff and thus the expert was not examined before the court as a witness to prove the contention raised by the plaintiff to reject the report. So here no evidence was adduced by the plaintiff who challenged the report so as to reject it in toto, due to the failure to take steps for examination of the expert. It is well settled that the report of the opinion of an expert is relevant under Section 45 of the Evidence Act. Order 26 Rule 10(2) CPC enables the party to examine the expert before the court to challenge the report. But here the plaintiff has failed to bring forth the witness before the court so as to contend that the opinion expressed by the witness is not worthy of acceptance. Even if the report of an expert is not a substantive piece of evidence it can be used as a document to corroborate the evidence. When independent evidence is available and if it is believable, the expert opinion can be rejected and it is not safe to act upon the expert opinion. But when the party who is supposed to adduce evidence to substantiate his or her case by definite evidence, the value of the RFA No.50-2015 8 expert opinion can also be considered under Section 45 of the Evidence Act. For the sake of convenience Section 45 of the Evidence Act is reiterated which reads as follows: “45. **Opinions of experts:-** When the court has to form an opinion upon a point of foreign law, or of science or art; or as to identify of handwriting [or finger impressions], the opinions upon that point of persons specifically skilled in such foreign law, science or art, [or in questions as to identity of handwriting] [or fingerimpressions] are relevant facts. Such persons are called experts”. ## 11. In **Chandrasekharan Nair N v. M/s.Olympic Credit Corporation Kottayam and another [** 2014 (1) KHC 710 (DB)] it is held that: 9. The opinion of an expert is relevant under Section 45 of the Evidence Act. Section 75(e) read with Order 26 Rule 10A of the Code of Civil Procedure empowers the Court to appoint commissioners to hold scientific investigation. By virtue of Order 26 Rule 10A(2) Code of Civil Procedure the provisions of Rule 10 of Order 26 applied to such reports. The report along with the opinion is part of the records of the case. In other words, examination of the expert is not necessary to act upon it. ( _Kerala State Housing Board v. Reghunadhan_ and _Satheesh Kumar v. Special Tahsildar_ ). But its probative value depends on its intrinsic worth and not on the provisions in the Code of Civil Procedure. ## 12. It is further observed in paragraph No.15 as follows: 15. An expert opinion has two parts, data part and opinion part. The opinion part is useless without date part. The opinion RFA No.50-2015 9 should be supported by reasons. ## 13. It is observed by the Apex Court in **Murali Lal v. State of Madhyapradesh (1980 (1) SCC 704),** as follows: “6. Expert testimony is made relevant by Section 45 of the Evidence Act and where the Court has to form an opinion upon a point as to identity of handwriting, the opinion of a person 'specially skilled' “in questions as to identity of handwriting” is expressly made a relevant fact. There is nothing in the Evidence Act, as for example like illustration (b) to Section 114 which entitles the Court to presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars, which justifies the court in assuming that a handwriting expert's opinion in unworthy of credit unless corroborated. The Evidence Act itself (Section 3) tells us that fact is said to be proved when, after considering the matters before it, the Court either believes is to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular cases, to act upon the supposition that it exists.” ## 14. The Apex Court in The State (Delhi Administration) v. Pali Ram [(1979)2 SCC 158] held as under: “23. It will be seen that the first paragraph of Section 73 is, in substance, a combined version of Section 48 of the English Act II of 1855 and Section 8 of the English Criminal Procedure Act, 1865. The second paragraph of Section 73 is substantially the same as the English Law condensed by Taylor in the above-quoted portion of paragraph 1871. 29. In addition to Section 73, there are two other RFA No.50-2015 10 provisions resting on the same principle, namely, Section 165, Evidence Act and Section 540. Cr.P.C 1898, which between them invest the court with a wide discretion to call and examine any one as a witness, if it is bonafide of the opinion that his examination is necessary for a just decision of the case. In passing the order which he did, the Magistrate was acting well within the bounds of this principle.” 15. So in short, hand writing expert's opinion is relevant under Section 45 of the Evidence Act and with utmost care and caution the authenticity of report can be determined when the court needs an opinion in a subject which requires special assistance, the court calls a specially skilled person. The evidentiary value of an expert's opinion depends upon the facts and circumstances of the case also. Here on a perusal of the records available, it could be seen that the evidence adduced by the plaintiff and his witness regarding the time of execution are conflicting and different. The possibility of the presence of PW2 at the time of the alleged execution of the document appears to be an unbelievable version mainly because of the variance in the deposition of the plaintiff and PW2 and PW2 is only a newspaper agent who used to supply newspaper, and not a person who used to visit his house. But the case is that one fine morning he signed Ext.A1 as a witness. As the time of execution of the document stated by the plaintiff and his witness are different, it is not safe to rely upon the RFA No.50-2015 11 same. No other reliable evidence was adduced by the plaintiff though so many documents have been produced by the plaintiff to substantiate the case. But the documents will not prove the alleged execution of Ext.A1, part payment or interest by the defendant. No explanation is forthcoming for the non-examination of the other witness when the evidence of PW2 was of no help to the plaintiff's case. 16. It is also to be noted that the plaintiff is the husband of the defendant's sister. The facts adduced by the parties indicate that there was some property disputes between the parties and their relationship was not cordial. So the defendant's contention that a false case has been alleged by the plaintiff appears to be probable. Moreover there is absolutely no evidence to show that the plaintiff had the financial capacity so as to give such a huge amount to the defendant as loan. From where he had collected that much amount is also not evident especially when the defendant had challenged the financial capacity of the plaintiff. In fact it is revealed from the evidence that the plaintiff had even sold his property for meager amount to meet his requirements and tide over the financial difficulties. Therefore, evidence is quite lacking to substantiate the fact that the plaintiff had sufficient source to raise that much money or had the funds with him RFA No.50-2015 12 so as to lend that much money to the defendant. There is also no evidence to substantiate the fact that the defendant had at any point of time paid any amount as interest or effected part payment towards the loan transaction. 17. When all the evidence on record are scanned properly it could be concluded that the plaintiff had failed to adduce evidence before the court to substantiate that he is entitled to realise the amount from the defendant on the strength of Ext.A1 promissory note. That be so, I find that there is no reason to interfere with the findings of the court below that the plaintiff is not entitled to get a decree for realisation of money from the defendant as claimed in the suit. Therefore, this appeal deserves a dismissal and I do so. Dismissed. **Sd/-** **SHIRCY V.** **JUDGE** **smm** RFA No.50-2015 13 ## **RFA 50/2010** The Order dated 22.09.2020 in RFA No.50/2010 directing to “Realize the Court Fee as per law”, is incorporated as part of the judgment dated 22.9.2020 in RFA NO.50/2010 Sd/- DEPUTY REGISTRAR