Moola alias Moolchand (Dead) through L.Rs. vs Shyam Mohan Shivhare and Another

S.K. Gangele, J.—This judgment shall govern disposal of S.A. Nos. 1036/2005, 972/2005, 975/2005 and 939/2005, as they arise out of common judgment and decree dt. 28.2.2005 passed by the court of Fourth Additional District Judge (Fast Track) Shivpuri in Civil Appeal Nos. 37A/05, 40A/05, 38A/05 and 39A/05 respectively, thereby dismissing the appeals of the appellants/plaintiffs and confirming the judgment and decree passed by the trial court impugned therein. Since all the aforesaid appeals involve similar facts and common substantial questions of law is framed by this court in all the appeals, they are heard analogously and decided by this common judgment.

S.A. Nos. 975/2005, 1036/2005 and 972/2005 have been admitted for hearing vide order dt. 8.8.2007 and S.A. No. 939/2005 has been admitted for hearing vide order dt. 10.3.2010 on the following common substantial question of law:-

Whether the opinion given by Handwriting expert Rajiv Verma (D.W. 1) vide Ex. D/1 u/s 45 of the Indian Evidence Act is binding and can be safely relied upon without independent and reliable corroboration, and the courts below committed an error in dismissing the suit of the plaintiff ?

For the sake of disposal of all these appeals, the facts of S.A. No. 1036/2005 are taken into account.

Plaintiffs Kharga alias Ghasita and Bhagwanlal filed a suit for declaration and redemption of mortgage. They pleaded that the suit land was joint family property. There was a need of money, hence, plaintiffs have taken a loan of Rs. 10,000/- on 11.6.1985 from the defendant Shyam Mohan and as a security of loan they mortgaged the suit land in favour of the defendant Shyam Mohan. However, because the plaintiffs are the scheduled caste persons and they are uneducated, the defendant Shyam Mohan got executed a sale deed. When they objected about the sale deed, on 27.12.1986, defendant Shyam Mohan executed an agreement and agreed to return back the land after receipt of the amount of Rs. 10,000/-. When the land was not returned back to the plaintiffs, a notice was sent to the defendant Shyam Mohan, however, inspite of notice he did not return back the land.

Defendant Shyam Mohan denied the pleadings of the plaintiffs. He pleaded that the plaintiffs executed the sale deed on 11.6.1985. He denied the execution of the agreement (Ex. P/1). He further pleaded that after execution of sale deed his name was also mutated. Defendant examined handwriting expert Rajiv Verma as Expert Witness No. 1. He in his evidence deposed that he had examined signatures of the defendant on agreement (Ex. P/1) and he found that there was no match between the specimen signature and standard signature of the defendant and both the signatures are quite different.

Plaintiff Bhagwan Lal (P.W. 1) in his evidence deposed that he did not sell the land in favour of defendant Shyam Mohan. He had taken some amount from him as loan, the defendant got executed a sale deed in place of mortgage deed. When this fact came to his knowledge, defendant Shyam Mohan executed an agreement (Ex. P/1). It was signed by Surya Prakash Agrawal and Babulal Shakya. He further deposed that he had got executed a fixed deposit in favour of defendant in his name and it is with the defendant. In his cross-examination, he admitted the fact that he had been working as a teacher. He further admitted the fact that the mutation of the land has taken place in favour of the defendant, however, he had not received any notice of mutation. Same facts have been deposed by another witness Lakhmi (P.W. 2). He specifically deposed that the land is in possession of the plaintiffs. Another witness Satyanarayan (P.W. 3) deposed that the land was of the joint family property and it was mortgaged as a security of the loan. Moolchand (P.W. 4) also deposed that he had taken a loan of Rs. 4000/- from the defendant Shyam Mohan for the purpose of marriage of his daughter and the defendant got executed a sale deed. He requested to return back the land. Kishanlal (P.W. 5) in his evidence deposed that the land is adjoining to his land and the plaintiffs are in possession of the land. Babulal Shakya (P.W. 6), who is also a witness of the agreement (Ex. P/1), deposed that before him agreement (Ex. P/1) was executed and he signed the agreement as a witness. Defendant Shyam Mohan called him and thereafter I had signed the agreement (Ex. P/1). In his cross-examination he further deposed that on Ex. P/1 the signatures are of defendant Shyam Mohan. Babu Khan (P.W. 7) deposed that he had taken garden, which was of the ownership of the plaintiffs, on contract vide document agreement (Ex. P/2).

Defendant Shyam Mohan (D.W. 1) in his evidence deposed that the plaintiffs executed the sale deed (Ex. D/1) and he did not execute any agreement (Ex. P/1). The sale was complete and Ex. P/1 is forged one. He further deposed that he is in possession of the suit land.

Baij Nath Yadav (D.W. 2), who is the witness of sale deed deposed that the plaintiffs executed the sale deed and he signed the sale deed. It was not a mortgage deed. Murari Lal Shivhare (D.W. 3) deposed that before him demarcation of land was done. Bhagwan Das Gupta (D.W. 3) in his evidence deposed that he had typed the sale deed and thereafter plaintiffs signed before him and sale deed was executed on 23.12.1986. There was no discussion about taking any loan. The handwriting expert Rajiv Verma has deposed that he examined the signatures of the defendant and found that the standard signature and specimen signature were of different persons and there was no match of signatures of the defendant on Ex. P/1.

It is well settled principle of law that the opinion of the handwriting expert could be relied on when it is supported by other evidence. Hon''ble Supreme Court in the case of Alamgir Vs. State (NCT, Delhi), has held as under about the value of opinion of handwriting expert after considering various judgments of the Hon''ble Supreme Court:-

There is no rule of law, nor any rule of prudence which has crysallised into a rule of law that opinion-evidence of a handwriting expert must never be acted upon, unless substantially corroborated. However, since human judgment cannot be said to be totally infallible, due caution shall have to be exercised and the approach ought to be that of care and caution and it is only upon probe and examination the acceptability or creditworthiness of the same depends.

Hon''ble Supreme Court in the case of 1980 CriLJ 396 (SC) has held as under:-

The hazard in accepting the opinion of any expert is not because they are unreliable witnesses but because all human judgment is fallible. While the science of identification of finger prints has attained near perfection and the risk of an incorrect opinion is practically non-existent, the science of identification of handwriting is not nearly so perfect and the risk is higher. Therefore, on the facts of a particular case, a court may require corroboration of a varying degree of the evidence of the handwriting expert. There can, however, be no hard and fast rule in this regard.

The Constitution Bench of the Hon''ble Supreme Court in the case of Shashi Kumar Banerjee and Others Vs. Subodh Kumar Banerjee since deceased and after him his legal representatives and Others, has held as under:-

The expert''s evidence as to handwriting is opinion evidence and it can rarely, if ever, take the place of substantive evidence. Before acting on such evidence it is usual to see if it is corroborated either by clear direct evidence or by circumstantial evidence.

Where the question is whether the will was executed on the date on which it purports to have been executed and there are no suspicious circumstances attached to the will, the mere opinion of the handwriting expert that it was executed much later cannot override the positive evidence of the attesting witnesses especially when he has not applied any chemical tests which according to his own opinion are essential.

From the above quoted judgment of the Hon''ble Supreme Court, it is clear that the evidence of handwriting expert can be relied on if there is other corroborative evidence. In the present case, the plaintiffs, who are the scheduled caste persons, have specifically pleaded that they had taken loan. 145 proceedings under Cr.P.C. were also initiated between the plaintiffs and defendant Shyam Mohan. It shows that there was a dispute between the plaintiffs and the defendant Shyam Mohan. The witness who had signed the agreement (Ex. P/1) has clearly deposed that defendant signed the agreement (Ex. P/1) and it was executed before him. Ex. P/2 and P/3 are the agreements executed by the plaintiffs with other persons by which the land was given on contract basis and Babu Khan (P.W. 7) admitted in his evidence that he had taken the land on contract for the purpose of agriculture from the plaintiffs. In the khasra entries, the possession of the defendant has been recorded. The plaintiffs also initiated proceedings against the defendant under the Madhya Pradesh Samaj Ke Kamjor Vargon Ke Krishi Bhumi Dharkon Ka Udhar Dene Walon Ke Bhumi Hadpane Sambandhi Kuchakron Se Paritran Tatha Mukti Adhiniyam, 1976. The plaintiffs had executed a sale deed of the land. There was no question of initiation of different proceedings by the plaintiffs including 145 proceedings under Cr.P.C. and proceedings under Madhya Pradesh Samaj Ke Kamjor Vargon Ke Krishi Bhumi Dharkon Ka Udhar Dene Walon Ke Bhumi Hadpane Sambandhi Kuchakron Se Paritran Tatha Mukti Adhiniyam, 1976.

From the aforesaid evidence, I am of the opinion that there was no intention of the plaintiffs to sell the suit land when the sale deed was executed. Actually, they had taken money from the defendant Shyam Mohan and as a security of money, Ex. D/1, which is in the shape of sale deed, was executed and subsequently the defendant executed the agreement (Ex. P/1) because the witness of the agreement has also deposed that before him, the agreement was executed. The plaintiffs are scheduled castes persons, hence, it could not be presumed that they had forged the agreement against the defendant Shyam Mohan. The handwriting expert Rajiv Verma also deposed that during the time gape of 3-4 years, there may be variation in signatures of a person and on the basis of the above, it can not be said that his evidence is binding and conclusive.

On the basis of the aforesaid discussion, I answer the substantial question of law in negative by holding that the opinion of the handwriting expert u/s 45 of the Indian Evidence Act is not binding and could not be safely relied upon without independent and reliable corroboration and the courts below committed an error of law in dismissing the suit of the plaintiffs. I further hold that the transaction was not an out right sale, it was executed for the purpose of securing the amount of loan and the courts below have committed an error in dismissing the suit of the plaintiffs. Consequently, the appeals are hereby allowed. The impugned judgments and decrees passed by both the courts below are hereby set aside. The suits filed by the plaintiffs are hereby decreed. It is ordered that upon payment of loan of Rs. 10,000/- in S.A. No. 975/2005 and 1036/2005 (Rs. 1100/- in S.A. 972/2005 and Rs. 4000/- in S.A. 939/2005), to the defendant Shyam Mohan, the plaintiffs would be entitled to redemption of mortgage of the land. No order as to costs.