Kothandapani Padayachi vs Rangantha Padayachi and Others

Raju, J.—The plaintiff in O.S. No. 608 of 1977 on the file of District Munsif Court, Cuddalore, who succeeded before trial court but lost

before the learned first appellate Judge is the appellant in the above second appeal.

The suit was filed for the specific performance of the agreement of sale dated 8.10.1977 marked as Ex. A-1 (unregistered agreement of sale)

said to have been executed by the first defendant and for a direction to the defendants to execute a sale deed in favour of the plaintiff and in default

thereof, the court to execute the same and for future mesne profits.

The case of the plaintiff before the trial court was that the suit properties belong absolutely to the first defendant by virtue of a final decree in

O.S. No. 285 of 1969 and the first defendant executed an unregistered agreement of sale on 8.10.1977 agreeing the sell the suit property to the

plaintiff for a sum of Rs. 2,700, that at the time of execution of the said agreement, a sum of Rs. 1,100 was paid by the plaintiff and the balance of

Rs. 1,600 had to be paid by the plaintiff within 30 days from the date of agreement, that further a sum of Rs. 1,000 was also paid by the plaintiff

and received by the first defendant on 25.10.1977, that the endorsement in respect thereof has been signed by the first defendant and only a

balance of Rs. 600 had to be paid and since the defendants failed to honour their commitment and when the notice was issued on 4.11.1977, a

reply was sent denying the execution of the agreement, the suit came to be filed for the relief referred to supra.

Defendants 2 and 4 remained ex parte. The first defendant filed a written statement contending that the alleged agreement dated 8.10.1977 is a

rank forgery, that there was no need for the defendant to sell the property or execute any agreement, that the property is worth more and the

further allegation that the first defendant subsequently received another sum of Rs. 1,000 by making an endorsement in this regard was also false

and the first defendant never signed or never received any sum from the plaintiff.

On the above claims and counter claims, the suit came to be tried and both parties adduced oral and documentary evidence. Learned trial Judge

by his judgment and decree dated 25.2.1981 decreed the suit as prayed for.

Aggrieved, the defendant filed A.S. No. 125 of 1981 on the file of the District Court, Cuddalore. Learned first appellate Judge has chosen to

re-appreciate the evidence in a different manner and differed from the findings recorded and conclusion arrived at by the learned trial Judge and

was of the view that the evidence adduced by the plaintiff is not acceptable and the plaintiff failed to prove that the, first defendant executed the suit

agreement. Consequently, the appeal came to be allowed and the suit came to be dismissed by judgment and decree dated 13.1.1983. Hence, the

above second appeal.

Learned Counsel appearing for the appellant while elaborating the substantial questions of law formulated at the time of admission of the appeal,

contended that the lower appellate court was not right in observing that the trial court has committed an error to accepting the plaintiff''s case by

comparing the admitted signatures of the first defendant with the signatures found in Exs.A-1 and A-2 and that having regard to the provisions

contained in Section 73 of the Indian Evidence Act, learned trial Judge had ample powers to himself comparethe disputed signature with the

admitted signature and come to a conclusion on the genuineness of the signature found in the suit agreement. Reliance was also placed by learned

Counsel for the appellant on a decision reported in Narasimha Rao Vs. Someswar Joshi, . That was a case where the signature disputed was in a

promissory note and the trial court had adopted the process of comparing the same with the signature in the vakalat and the petitioner and those

taken from the said person in court. It was held by this Court that the signature must be held to have been properly proved. It may be noticed even

at this stage that the very learned Judge has chosen to administer a caution that even the opinion of a handwriting exparte, standing by itself, is

rarely conclusive on the question of disputed signature of a person and that the opinion formed by the court cannot be said to be conclusive, but at

the same time, the learned Judge declined to interfere in that case, keeping in view, that he was sitting and exercising revisional jurisdiction and

normally, the High Court sitting in revision should not interfere unless there is a patent error and clear failure of justice, as in a case where there in

no evidence or no jurisdiction.

Learned Counsel for the respondents while adopting the reasons assigned by learned first appellant Judge contended that no exception could be

taken to the findings recorded by learned first appellate Judge, supported by proper and sufficient evidence.

I have carefully considered the submissions made by learned Counsel appearing on either side. In my view, learned first appellate Jjjdge was

right in viewing critically about the course adopted by the learned trial Judge in deciding the question about the genuineness of the signature found

on Ex. A-1 agreement mainly on the basis of comparison alone, since no one connected or concerned with the execution of the document, either

the scribe or the attestors have been examined in court to prove the agreement in spite of the denial by the first defendant about the execution of

the document and also his claim that it was a forged one. Section 73 of the Evidence Act, no doubt, enables the court in order to ascertain whether

a signature, writing or seal is that of the person by whom it purports to have been written or made any signature, writing or seal admitted or proved

to the satisfaction of the court to have been written or made by that person may be compared with the one which is to be proved, although that

signature, writing or seal has not been produced or proved for any other purpose. But at the same time, often, 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 jot 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 inconclusive 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. As a matter of fact, in a latest pronouncements, the Supreme Court in the decision reported in O. Bharatan Vs. K.

Sudhakaran and another, , once again reiterated the principles laid down in The State (Delhi Administration) Vs. Pali Ram, and deprecated the

practice of ignoring the warning and caution administered in the earlier decisions by the Apex Court. Consequently, no exception could be taken to

the observations made by the first appellate court in this case disapproving the mode of proof adopted by learned trial Judge in forming an opinion

about the genuineness of the signature found on Ex. A-1 agreement, on mere comparison by himself.

On the facts and circumstances of the case also, I am of the view that learned trial Judge committed a serious error in undertaking the exercise

of comparing the signatures himself in''this case. The plea streneously raised by learned Counsel for the appellant based upon the enabling powers

envisaged u/s 73 of the Indian Evidence Act, does not appeal to be having regard to the peculiar facts and circumstances of the case also. From

Ex. A-1 agreement, it could be seen that apart from the scribe, more than half a dozen persons have attested the same. Similarly, the endorsement

in Ex. A-2 is also found attested. In spite of the above, there has been no one, from among them, examined as witnesses before court in support of

the case of the plaintiff. Even the witnesses examined other than those connected with the actual execution of the so called agreement, did not

speak in unison and learned first appellate Judge has highlighted the contradictions and variations as well as inconsistencies in the evidence with

respect to the alleged execution of the agreement itself which the learned trial Judge has conveniently omitted to keep into account, in adjudicating

the income. The question for consideration in this case is whether in the teeth of such fact situation, that no one connected with the actual execution

of the agreement has been examined before the court the learned Judge in the corut below could have undertaken himself the took of comparing

the signature to heard a decision merely on such comparison objections. There can be no two opinions on the conclusion that it should not have

been and the learned trial Judge has committed a grave error in doing so. In the absence of other relevant evidence placed before court connected

with the alleged excution of the agreement by the first defendant, learned trial Judge ought to have either directed the plaintiff to have the document

examined by an handwriting expert and get an expert opinion or avoided undertaking himself the task of compensation de hors any such direction

from a court also the plaintiff had a duty and obligation to prove the due execution of the agreement effectively in the teeth of the plea of forgery

advanced by the first defendant, to over come such a hurdles before being granted the relief of specific performance which is a discretionary

remedy. The reasons assigned by learned first appellate Judge to interfere with the judgment and decree of the learned trial Judge and the materials

adverted to in support of much reasons and ultimate conclusions and findings recorded by the first appellate court are. quite in accordance with law

and do not suffer any patent error of law or perversity of approach in the matter of appreciation of the materials on record warranting the

interference of this Court within the scope of this second sppeal. The second appeal therefore fails and shall stand dismissed. No costs.