Case Note & Summary
The petitioners, who are plaintiffs in a partition suit (O.S. No. 225/06) pending before the Civil Judge (Sr. Dn.), Chikmagalur, filed writ petitions under Articles 226 and 227 of the Constitution of India challenging the Trial Court's order dated 11.12.2012 on IA No. 12. The plaintiffs had sought a direction to the Court Commissioner to compare the disputed signature on the alleged will with the signature found in the register maintained by the Sub-Registrar, which was obtained at the time of execution of a general power of attorney by the testator. The Trial Court rejected the application, holding that the commissioner cannot be directed to compare signatures as it would amount to giving evidence. The High Court allowed the writ petitions, setting aside the Trial Court's order. The Court held that under Order 26 Rule 9 of the Code of Civil Procedure, 1908, a commissioner can be appointed to compare signatures, and the signature in the Sub-Registrar's register is an 'admitted' signature under Section 73 of the Indian Evidence Act, 1872. The Court directed the Trial Court to appoint a commissioner to compare the disputed signature with the signature in the register and submit a report. The Court also noted that the plaintiffs have a prima facie case and the balance of convenience is in their favour.
Headnote
A) Civil Procedure Code, 1908 - Order 26 Rule 9 - Court Commissioner - Comparison of Signatures - In a suit for partition, where the genuineness of a will is disputed, the court may appoint a commissioner to compare the disputed signature with admitted signatures, including those in the Sub-Registrar's register, as such signatures are considered admitted under Section 73 of the Indian Evidence Act, 1872. The Trial Court's rejection of the application was set aside as it failed to consider that the register signature is an admitted signature. (Paras 1-10) B) Indian Evidence Act, 1872 - Section 73 - Admitted Signatures - Signatures appearing in a register maintained by the Sub-Registrar at the time of registration of a document are 'admitted' signatures for the purpose of comparison under Section 73. The court can direct a commissioner to compare such signatures with the disputed signature. (Paras 5-8) C) Civil Procedure Code, 1908 - Order 26 Rule 9 - Prima Facie Case - The plaintiffs have a prima facie case for appointment of a commissioner to compare signatures, as the disputed will is crucial to the partition suit and the plaintiffs have no other means to prove the forgery. The balance of convenience is in favour of allowing the commission. (Paras 9-10)
Issue of Consideration
Whether the Trial Court was justified in rejecting the plaintiffs' application to direct the Court Commissioner to compare the disputed signature with the signature found in the register maintained by the Sub-Registrar at the time of execution of the general power of attorney.
Final Decision
The High Court allowed the writ petitions, set aside the Trial Court's order dated 11.12.2012, and directed the Trial Court to appoint a Court Commissioner to compare the disputed signature with the signature in the Sub-Registrar's register and submit a report.
Law Points
- Order 26 Rule 9 CPC
- Section 73 of the Indian Evidence Act
- 1872
- Court Commissioner's power to compare signatures
- Registered document as admitted signature
- Prima facie case for commission
