- 1 - HC-KAR NC: 2025:KHC-D:12627 WP No. 101096 of 2022 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 18TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL WRIT PETITION NO. 101096 OF 2022 (GM-CPC) BETWEEN: SOMAPPA S/O. GANGADHARAPPA ROTTI, AGE: 54 YEARS, OCCUPATION: BUSINESS/AGRICULTURE, R/O. PANCHAKSHARI NAGAR, NEAR K. H. PATIL STADIUM, GADAG. …PETITIONER (BY SRI. M. M. PATIL, ADVOCATE) AND: DODDABASAPPA SANNABASAPPA HONNAPPANAVAR, SINCE DIED BY LRS. 1. SANGAPPA S/O. DODDABASAPPA HONNAPPANAVAR, AGE: 58 YEARS, OCCUPATION: AGRICULTURE, R/O. YELISHIRUR VILLAGE, TALUK/DISTRICT: GADAG-582120. 2. NINGAPPA S/O. DODDABASAPPA HONNAPPANAVAR, AGE: 42 YEARS, OCCUPATION: AGRICULTURE, R/O. YELISHIRUR VILLAGE, TALUK/DISTRICT: GADAG-582120. 3. MALLAPPA S/O. DODDABASAPPA HONNAPPANAVAR, AGE: 36 YEARS, OCCUPATION: AGRICULTURE, Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Location: High Court of Karnataka, Dharwad Bench - 2 - HC-KAR NC: 2025:KHC-D:12627 WP No. 101096 of 2022 R/O. YELISHIRUR VILLAGE, TALUK/DISTRICT: GADAG-582120. 4. SMT. VIJAYA W/O. CHANNABASAPPA HONNAPPANAVAR, AGE: 52 YEARS, OCCUPATION: HOUSEWIFE, R/O. YELISHIRUND VILLAGE, TALUK/DISTRICT: GADAG-582101. 5. SMT. RENUKA W/O. ASHOK KADAPPANAVAR, AGE: 47 YEARS, OCCUPATION: HOUSEHOLD, R/O. YELISHIRUND VILLAGE, TALUK/DISTRICT: GADAG-582120. 6. SMT BASAMMA W/O. BASAVARAJ ROTTI, AGE: 45 YEARS, OCCUPATION: HOUSEHOLD, R/O. MAGADI VILLAGE, TALUK: SHIRAHATTI, DISTRICT: GADAG-582120. 7. SMT. NAGAMMA W/O. SIDDAPPA HULAGOOR, AGE: 52 YEARS, OCC: HOUSEHOLD, R/O. YELISHIRUR VILLAGE, TALUK/DISTRICT: GADAG-582120. …RESPONDENTS (BY SRI. H. N. GULARADDI, ADV. FOR R1 TO R7) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227 CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OR ORDER OR DIRECTION IN THE NATURE OF CERTIORARI TO SET ASIDE THE IMPUGNED ORDER DATED 15.03.2021 MADE IN O.S.NO.43/2009 ON I.A.NO.18, PASSED BY HON'BLE ADDITIONAL SENIOR CIVIL JUDGE, GADAG AT ANNEXURE-G CONSEQUENTLY BY ALLOWING THE I.A.NO.18 FILED BY THE PETITIONER AND ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC-D:12627 WP No. 101096 of 2022 ORAL ORDER (PER: THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL) This petition is filed seeking following reliefs: “a. Issue a writ or order or direction in the nature of certiorari to set aside the impugned order dated 15.03.2021 made in O.S.No.43/2009 on I.A.No.18, passed by Hon’ble Additional Senior Civil Judge, Gadag, at Annexure-G, consequently by allowing the I.A.No.18, filed by the Petitioner; and b. Issue any other writ or direction as this Hon’ble Court deems fit and proper in the facts and circumstances of the case, in the ends of Justice and Equity.” 2. Sri.M.M.Patil, learned counsel appearing for the petitioner submits that the petitioner has filed a suit for declaration and permanent injunction in respect of the suit schedule property and the relief of declaration is sought based on the will dated 15.08.1985. It is submitted that after conclusion of the trial the petitioner filed an application seeking for appointment of an expert to carry out scientific investigation to compare the signatures of the deceased Smt.Gauramma as appearing in Ex.P1 i.e., Will dated 15.08.1985 and Ex.P31, the - 4 - HC-KAR NC: 2025:KHC-D:12627 WP No. 101096 of 2022 admitted signature of the deceased Smt.Gouramma. However, the trial Court under the impugned order dismissed the application on the ground that the Court has a power to compare the signatures and record the finding. It is submitted that the respondents are denying the Will, though the petitioner/plaintiff places best of the evidence before the trial Court to prove the Will. It is further submitted that the expert input would aid the trial Court in deciding the dispute between the parties. It is also submitted that the finding of the trial Court that it can compare the signatures as per Section 73 of the Indian Evidence Act, 1972 (for short ‘the Act’) is impermissible as per the law laid down by this Court. In support of his contentions he placed reliance on the decision of this Court in the case of G.V.NARASIMHAMURTHY v. C.GOPAL AND OTHERS1 and in the case of SMT.KAMALA AND OTHERS v. SMT.RAJOOVI PADMAPPA SINCE DEAD BY LRS2. Hence, he seeks to allow the application for appointment of an expert. 1 HCR 2020 Kant. 1040 2 2015 (3) KCCR 2113 - 5 - HC-KAR NC: 2025:KHC-D:12627 WP No. 101096 of 2022 3. Per contra, Sri.H.N.Gularaddi, learned counsel appearing for the respondents supports the impugned order of the trial Court and submits that the trial Court has taken note of the fact that the similar application was filed in IA.No.17 which came to be rejected. Hence, further entertaining such an application would not arise. It is further submitted that there are no admitted signature of the deceased Smt.Gouramma, hence, question of comparing the signatures with Ex.P31 would not arise. It is also submitted that the primary burden is on the plaintiff to prove the Will by adducing the evidence and if there is any dispute with regard to the signature, the trial Court would exercise the power under Section 73 of the Act and compare the signatures. Hence, he seeks to dismiss the petition. 4. I have heard the arguments of the learned counsel for the petitioner, the learned counsel for the respondents and meticulously perused the material available on record. I have given my anxious consideration to the submissions advanced on both sides. - 6 - HC-KAR NC: 2025:KHC-D:12627 WP No. 101096 of 2022 5. The petitioner filed OS.No.43/2009 for a relief of declaration and permanent injunction against the respondents and the relief of declaration is based on the Will dated 15.08.1985. The records indicate that the respondents defended the suit by denying the execution of Will by Smt.Gouramma in favour of the plaintiff. The parties to the proceedings adduced the evidence, thereafter, the petitioner filed an application under Order XXVI Rule 10A r/w Section 151 of the Code of Civil Procedure, 1908 (for short ‘CPC’) seeking for appointment of an expert to carry out the scientific investigation to compare the signatures of the deceased Smt.Gouramma appearing on Ex.P1, the disputed Will and the admitted signatures of the deceased Smt.Gouramma found at Ex.P31, which is the deposition of Smt.Gouramma in OS.No.302/1993. The trial Court under the impugned order rejected the same on the ground that the trial Court can compare both the signatures and record the finding. In my considered view, the trial Court has committed a grave error for the reason that the primary contention of the petitioner is that the deceased Smt.Gouramma executed a Will dated 15.08.1985 and based on such a Will, a declaration is sought. The material on record indicates that the petitioner in order to - 7 - HC-KAR NC: 2025:KHC-D:12627 WP No. 101096 of 2022 prove the Will adduced the evidence and laid the foundation. The respondents denied the Will in its entirety. The petitioner is making an attempt to prove the Will and the signature on the said Will which is marked as Ex.P1 in the proceedings, by way of expert's view on the point. The records indicate that the deceased Smt.Gouramma has deposed in OS.No.302/1993, which according to the petitioner is the admitted signature and if the said signature is in the judicial proceedings, the same is required to be considered as the admitted signature. By comparing the signature on Ex.P31 and the signatures on Ex.P1, the alleged Will, it would help the trial Court to answer the issues framed in the pending suit. 6. The Division Bench of this Court in the case of G.V.Narasimhamurthy referred supra at paragraph Nos.22 and 23 held as under: “22. Section 45 of the Act relates to 'Opinion of experts'. Section 73 of the Act contemplates that, any signature, writing, seal, finger print impression is that of a person by whom it purports to have been made, any signature, finger print impression admitted to have been made by that person may be compared by the court with the one which is to be proved. In the absence of any application filed by the parties to ascertain the genuineness of the - 8 - HC-KAR NC: 2025:KHC-D:12627 WP No. 101096 of 2022 signature/finger print impression of the parties in the Exs.P1 and P2, the contention of the learned counsel for the plaintiff that Section 73 of the Act would have been invoked by the Trial Court to compare the disputed signatures with the admitted or proved signatures/finger print impression also does not hold any water. The Hon'ble Apex Court in the case of Thiruvengadam Pillai Vs. Navaneethammal and another, (2008) 4 SCC 530 placing reliance on the judgment of the Hon'ble Apex Court in the case of State (Delhi Administration) Vs. Pali Ram, (1979) 2 SCC 158 referring to the decision of Murari Lal Vs. State of M.P., (1980) 1SCC 704 and Lalit Popli Vs. Canara Bank, (2003) 3 SCC 583 has held that, while there is no doubt that court can compare the disputed handwriting/finger impression with the admitted handwriting/signature/finger impression, such comparison by court without the assistance of any expert, has always been considered to be hazardous and risky. When it is said that there is no bar to a Court to compare the disputed finger impression with the admitted finer impression, it goes without saying that it can record an opinion or finding on such comparison, only after an analysis of characteristics of the admitted finger impression and after verifying whether the same characteristics are found in the disputed finger impression. Where the courts finds that the disputed finger impression and admitted thumb impression are clear and where the court is in a position to identify the characteristics of fingerprints, the court may record a finding on comparison, even in the absence of an expert's opinion. But where the disputed thumb impression is smudgy, vague or very light, the court should not hazard a guess by a casual perusal. It is observed that the decision in Murari Lal (supra), should not be construed as laying a proposition that the Court is bound to compare the disputed and admitted finer impressions and record a finding thereon, irrespective of the condition of the disputed finger impression. Thus, the court should avoid reaching conclusion based on routine glance or perusal. The said dictum applies to signature, writing or seal as well.” - 9 - HC-KAR NC: 2025:KHC-D:12627 WP No. 101096 of 2022 “23. In the case of S.B.Ittigi and another (supra), the Division Bench of this Court referring to the various judgments of the Hon’ble Apex Court has observed that a combined reading of Section 73 of the Act and the decisions referred to above makes it clear that the Court has the power to compare the disputed signature with the admitted signature. However, it is categorically observed that when the Court entertains a slightest doubt with regard to the signatures, then the Court shall hesitate to compare the signature particularly in criminal matters. It was a case of a Will where the signature of the testator was disputed. Both the plaintiff and defendants therein had not taken any opinion of the handwriting expert. In that context the Trial Court by comparing the disputed and the undisputed signature of testator had come to the conclusion that the words, style and letters in both the documents were exactly more or less similar if not identical. Under such circumstances, it has been held that the Court has the power to compare the disputed signature with the undisputed signature under Section 73 of the Act. In the present case, the disputed signature of defendant Nos.1 and 2 being vague and in different vernacular languages, it was obligatory on the part of the plaintiff to seek the expert’s opinion to prove the said documents [Exs.P1 and P2]. In the absence of such exercise done by the plaintiff, relying on Section 73 of the Act, to shift the burden on the Court/defendants appears to be unrealistic but to shirk the burden of proving the documents. As aforesaid by the Hon’ble Apex Court, the Judge as a matter of prudence and caution, hesitate to base his finding with regard to the identity of a handwriting which forms the sheet anchor of the prosecution case against a person accused of an offence, solely on the comparison made by himself. It is therefore, not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other; and the prudent course is to obtain the opinion and assistance of an expert. [State (Delhi Administration) vs. Pali Ram, (1979) 2 SCC 158)]. This view was reiterated in - 10 - HC-KAR NC: 2025:KHC-D:12627 WP No. 101096 of 2022 Bharathan vs. K.Sudhakaran, (1996) 2 SCC 704 and again in Ajit Savant Majagavi vs. State of Karnataka, (1997) 7 SCC 110. Though the Court has the power to compare the signature, as a matter of extreme caution and judicial sobriety, the Court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature or handwriting and in the event of slightest doubt, it should be left to the wisdom of experts. As such, the view of the Trial Court that the Court should hesitate to proceed with Section 73 of the Act cannot be faulted with.” 7. This Court in the case of Smt.Kamala and Others referred supra at paragraph No.23 held as under: “23. It is true that the Court is the expert of experts as per Section 73 of the Evidence Act. What is laid down by the Hon'ble Supreme Court in the case of State (Delhi Administration) v. Pali Ram, ((1979) 2 SCC 158 : AIR 1979 SC 14), while dealing with the provisions of Section 73 of the Evidence Act is that prudence demands that the Court shall not take upon itself the responsibility of comparing the admitted signature or handwriting with the disputed handwriting or signature, unless a report is obtained from an expert. This is essential because such an exercise requires scientific analysis. In this view of the matter, the approach of the first appellate Court in accepting Ex.P13 as a proved document is incorrect and improper. The relevant discussion is found in paragraph 29 of the judgment and it is extracted below: ‘29. The matter can be viewed from another angle, also. Although there is no legal bar to the judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any handwriting expert, the judge should, as a matter of - 11 - HC-KAR NC: 2025:KHC-D:12627 WP No. 101096 of 2022 prudence and caution, hesitate to base his finding with regard to the identity of a handwriting which forms the sheet- anchor of the prosecution case against a person accused of an offence, solely on comparison made by himself. It is, therefore, not advisable that a judge should take upon himself the task of comparing the admitted writing with the disputed one to fond out whether the two agree with each other : and the prudent course is to obtain the opinion and assistance of an expert.’” 8. Taking note of the enunciation of law laid down by this Court, I am of the considered view that the finding recorded by the trial Court under the impugned order that it would exercise its power under Section 73 of the Act to compare the signatures would be an erroneous finding and it may lead to complications. In my considered view the expert's opinion with regard to the signature of the deceased Smt.Gouramma would aid the trial Court in deciding the suit effectively. The trial Court has incorrectly recorded the finding that the application filed in the earlier occasion in IA.No.17 is rejected. It is noticed that the said application is filed by the defendants, hence, there cannot be any res-judicata against the petitioner. Hence, I proceed to pass the following: - 12 - HC-KAR NC: 2025:KHC-D:12627 WP No. 101096 of 2022 ORDER i. The writ petition is allowed. ii. The impugned order dated 15.03.2021 passed on IA.No.18 in O.S.No.43/2009 by the Additional Senior Civil Judge, Gadag is hereby set aside. iii. Consequently, IA.No.18 filed by the petitioner under Order XXVI Rule 10A of the CPC is allowed. iv. The trial Court is directed to refer Ex.P1 and Ex.P31 to the handwriting expert. No orders as to costs. Sd/- (VIJAYKUMAR A.PATIL) JUDGE ABK /CT-AN List No.: 1 Sl No.: 9