Sundari @ Esakkiammal vs R. Krishnammal

C.S. Karnan, J.—The revision Petitioner/Plaintiff/Appellant has filed the above revision to call for the records relating to the orders passed in

I.A. No. 244 of 2010 dated 29.03.2011 in A.S. No. 54 of 2006 on the file of the District Judge, Kanyakumari at Nagercoil, set aside the same.

The short facts of the case are as follows:

The revision Petitioner/Plaintiff has filed a suit in O.S. No. 66 of 2006 against the Respondent/Defendant for specific performance of contract of

sale, directing the Defendant to execute sale deed on receipt of the balance sale consideration of Rs. 25,000/- and if the Defendant fails to execute

the sale deed on receipt of the balance sale consideration of Rs. 25,000/-, the sale deed may be executed by the trial court and other relief. The

Plaintiff stated in her plaint that on 04.01.2006, the Defendant and Plaintiff entered into a written sale agreement. On that day, the Defendant has

received an amount of Rs. 1,75,000/- towards part of the sale consideration. As per agreement, the Plaintiff has to pay the balance sale

consideration of Rs. 25,000/- on or before 03.05.2005 and get the sale deed from the Defendant. The Plaintiff has been always ready and willing

to pay the balance sale consideration of a sum of Rs. 25,000/- to the Defendant; but the Defendant is purposely and deliberately evading to

execute the sale deed. Hence, the above suit has been filed by the Plaintiff.

The Defendant had filed a written statement and resisted the suit on various grounds. The Defendant denied that she had signed in the alleged

agreement. The signature found in document No. 1 filed along with the plaint is not the signature of this Defendant. Further, the Defendant stated

that there is no sale agreement between the Plaintiff and Defendant. She had never agreed to sell the property to the Plaintiff for a sum of Rs.

2,00,000/-. She had also denied that she had received a sum of Rs. 1,75,000/- from the Plaintiff for selling her property. The Defendant has also

filed an interlocutory application in I.A. No. 300 of 2006 in O.S. No. 66 of 2006 and prayed that the disputed signature found in plaint document

No. 1, i.e., the alleged sale agreement dated 04.01.2006, be sent along with other admitted signature of the Petitioner/defendant to the Director,

forensic Service Department, Forensic House, Mylapore, Kamarajar salai, Chennai for verification and comparison. The handwriting expert who

finalised the nature of the signature may prepare a report and the report be submitted to this Court by the expert. It was also stated that the

Petitioner will undertake to pay the expenses for getting the report from the expert as directed by this Court.

The same was opposed by the Respondent/Plaintiff. The learned Judge, after hearing the arguments of the Learned Counsels on both sides and

on perusing the averments of the parties dismissed the said application assigning the reason that the court themselves can compare the signature in

the said sale agreement with the signature of the Defendant.

After contest, the main suit in O.S. No. 66 of 2006 was dismissed on 31.10.2006 by the learned II Additional Subordinate Court, Nagercoil.

Against the dismissal of the said suit, the Plaintiff has filed the appeal in A.S. No. 54 of 2006 before the District Court, Kanyakumari at Nagercoil.

In the said appeal the Appellant/Plaintiff has filed an interlocutory application in I.A. No. 162 of 2010 and has humbly prayed that the court may

be pleased to receive the document, namely, computerised registration copy of sale deed executed by the Respondent in favour of Meenambika,

dated 04.01.2006, as additional evidence to establish her case in the said appeal. The same was resisted by the Respondent/defendant stating that

the said document was marked as exhibit B6 before the trial court and that the same is part and parcel of the records before the appellate court.

On hearing the arguments of both parties and on going through the contention of both the parties, the learned Judge dismissed the said

application.

Thereafter, the Appellant/Plaintiff has filed an interlocutory application in I.A. No. 212 of 2006 in A.S. No. 54 of 2006 with the prayer to

appoint a commissioner to bring exhibits A1, B3 and B5 to the forensic science laboratory, Madurai for getting comparison of the disputed

signatures in exhibits A1 with the admitted signatures in exhibits B3 and B5, and to report thereon. The said application was opposed by the

Respondent/defendant. Thereafter the Appellant/Plaintiff has filed another application in I.A. No. 213 of 2010 in A.S. No. 54 of 2006 to send

exhibits A1, B3 and B5 to the Forensic Science Laboratory, Madurai for comparison of the disputed signatures of the Defendant in exhibit A1

with her admitted was also opposed by the Respondent/defendant. Again, the Appellant/Plaintiff had filed one more interlocutory application in

I.A. No. 244 of 2010 in A.S. No. 54 of 2006 and prayed the court to issue summons to the sub-Registrar, Nagercoil to produce Original

Signature register of document No. 38/2006 dated 04.01.2006. The Respondent/defendant had filed a counter statement in the said application.

The said application was posted along with the appeal for hearing. Hence the Appellant/Plaintiff had filed C.R.P. No. 195 of 2011 before this

Court. The court directed the learned District Judge, Kanyakumari to dispose the Interlocutory Application in I.A. No. 244 of 2010 on the basis

of available evidence and also other circumstances of the present case on or before 31th March 2011.

As per direction of the court, the learned District Judge, after hearing the arguments of the counsels on both sides and on perusing the affidavit of

the Petitioner and counter statement of Respondent framed an issue and dismissed the said application.

Against the order and decretal order passed in I.A. No. 244 of 2010, in A.S. No. 54 of 2006 dated 29.03.2011, on the file of District Judge,

Kanyakumari, the above Civil Revision Petition has been filed by the Plaintiff. The learned Senior Counsel for the Plaintiff has argued that the

learned District Judge ought to have issued summons to the Sub-Registrar, Nagercoil to produced original signature register of document No.

38/2006 dated 04.01.2006, since the lower court disbelieved Ex.A1 sale agreement dated 04.01.2006 after comparison of the disputed signature

with the admitted signature of the Respondent/defendant. It was argued that in order to prove that the signature of Respondent found in Ex.A1 are

that of the Respondent/defendant, it is necessary to produce the original signature register in the register of Ex.B6 dated 04.01.2006. Ex.A3 is the

postal acknowledgement card signed by the Respondent/defendant and Ex.B6 is the registration copy of the sale deed executed by the

Respondent/defendant in favour of one Meenambika. In order to prove that the signature available in Ex.A1 are the signatures of the

Respondent/defendant, comparison of signatures available in Ex.A1 along with admitted signatures available in Ex.A3 and the original of Ex.B6

available in the signature register of document No. 38/2006 is highly necessary. It was also argued that as the revison Petitioner/Plaintiff herself has

taken that type of risk, the learned District Judge cannot reject her claim. It was also stated that the revision Respondent/defendant herself had

taken the specific stand that Ex.A1 sale agreement dated 04.01.2006 has not been executed by her and that Ex.B6, sale deed dated 04.01.2006

has been executed by the Respondent/defendant, it is very much essential to issue summons to the Sub-Registrar, Nagercoil to produce original

signature register of document No. 38/2006 dated 04.01.2006.

The learned Senior Counsel further argued that the learned District Judge failed to note that the lowr court had taken the task of comparing the

admitted signatures with the disputed one to find out whether they are similar which was not proper. The learned District Judge failed to note that

the prudent course to determine the authenticity of the signatures was to obtain the opinion and assistance of an expert.

It was also argued that the learned District Judge failed to note that the revision Petitioner/Plaintiff had filed counter in I.A. No. 300/2006

stating that the expert may be summoned before the court and signature may be compared. The learned Senior Counsel vehemently argued that the

learned District Judge ought to have allowed the I.A. on the ground that the same is a bona fide one and as the suit has been filed for specific

performance of contract, the burdent lies on the revision Petitioner/Plaintiff to prove the Ex.A1 with reference to other material evidence available

on record.

In support of his arguments, the Learned Counsel for the Petitioner cited a judgment in the case of Lalit Popli Vs. Canara Bank and Others, .

The relevant portion of the said judgment reads as follows:

Sections 45 and 73 of the Indian Evidence Act, 1872 (in short ""the Evidence Act"") deal with opinion of experts and comparison of signature,

writing or seal with others admitted or proved. Section 45 itself provides that the opinions are relevant facts. It is a general rule that the opinion of

witnesses possessing peculiar skill is admissible. There was no challenge to the expertise of V.K. Sakhuja. He deposed to have testified in about

ten thousand cases relating to disputed documents. Though the employee highlighted certain adverse remarks, it cannot be lost sight of that they

were about four decades back. But we need not go into that aspect in detail as no infirmity in the report acted upon by the authority in the present

case was noticed or could be pointed out.

It is to be noted that under Sections 45 and 47 of the Evidence Act, the court has to take a view on the opinion of others, whereas u/s 73 of

the said Act, the court by its own comparison of writings can form its opinion. Evidence of the identity of handwriting is dealt with in three sections

of the Evidence Act. They are Sections 45, 47 and 73. Both under Sections 45 and 47 the evidence is an opinion. In the former case it is by a

scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experiences. In both the cases, the court is

required to satisfy itself by such means as are open to conclude that the opinion may be acted upon. Irrespective of an opinion of the handwriting

expert, the court can compare the admitted writing with the disputed writing and come to its own independent conclusion. Such exercise of

comparison is permissible u/s 73 of the Evidence Act. Ordinarily, Sections 45 and 73 are complementary to each other. Evidence of the

handwriting expert need not be invariably corroborated. It is for the court to decide whether to accept such an uncorroborated evidence or not. It

is clear that even when an expert''s evidence is not there, the court has power to compare the writings and decide the matter. (See Murari Lal v.

State of M.P. 1)

In another judgment in the case of S. Gopal Reddy Vs. State of Andhra Pradesh, . The relevant portion of this judgment reads as follows:

We are unable to agree, in the established facts and circumstances of this case, with the view expressed by the courts below that PW 1 is a

competent witness to speak about the handwriting of the Appellant and that the opinion of PW 3 has received corroboration from the evidence of

PW 1. PW 1 admittedly did not receive any of those letters. He had no occasion to be familiar with the handwriting of the Appellant. He is not a

handwriting expert. The bald assertion of PW 1 that he was ''familiar'' with the handwriting of the Appellant and fully ''acquainted'' with the contents

of the letters, admittedly not addressed to him, without disclosing how he was familiar with the handwriting of the Appellant, is difficult to accept.

Section 67 of the Evidence Act, 1872 enjoins that before a document can be looked into, it has to be proved. Section 67, of course, does not

prescribe any particular mode of proof. Section 47 of the Evidence Act which occurs in the chapter relating to ""relevancy of facts"" provides that

the opinion of a person who is acquainted with the handwriting of a particular person is a relevant fact. Similarly, opinion of a handwriting expert is

also a relevant fact for identifying any handwriting. The ordinary method of proving a document is by calling as a witness the person who had

executed the document or saw it being executed or signed or is otherwise qualified and competent to express his opinion as to the handwriting.

There are some other modes of proof of documents also as by comparison of the handwriting as envisaged u/s 73 of the Evidence Act or through

the evidence of a handwriting expert u/s 45 of the Act, besides by the admission of the person against whom the document is intended to be used.

The receiver of the document, on establishing his acquaintance with the handwriting of the person and competence to identify the writing with which

he is familiar, may also prove a document. These modes are legitimate methods of proving documents but before they can be accepted they must

bear sufficient strength to carry conviction. Keeping in view the inconclusive and indefinite nature of the evidence of the handwriting expert PW 3

and the lack of competence on the part of PW 1 to be familiar with the handwriting of the Appellant, the approach adopted by the courts below to

arrive at the conclusion that the disputed letters were written by the Appellant to Ms Vani on the basis of the evidence of PW 1 and PW 3 was not

proper. The doubtful evidence of PW 1 could neither offer any corroboration to the inconclusive and indefinite opinion of the handwriting expert

PW 3 nor could it receive any corroboration from the opinion of PW 3. We are not satisfied, in the established facts and circumstances of this

case, that the prosecution has established either the genuineness or the authorship of the disputed letters allegedly written by the Appellant from the

evidence of PW 1 or PW 3. The courts below appear to have taken a rather superficial view of the matter while relying upon the evidence of PW

1 and PW 3 to hold the Appellant guilty. We find it unsafe to base the conviction of the Appellant on the basis of the evidence of PW 1 or PW 3 in

the absence of substantial independent corroboration, internally or externally, of their evidence, which in the case is totally wanting

The Learned Counsel for the Respondent argued that the trial court has dismissed the suit with the finding that the alleged signatures found in

Ex.A1, agreement was a forged one. The learned Judge had compared the signature found in Ex.A1 with that of the admitted signature found in

Ex.A5, document which was produced by the Petitioner/Appellant. The Learned Counsel further argued that the Defendant never executed any

sale agreement in favour of the Plaintiff/revision Petitioner herein. Further, the Defendant has filed interlocutory application in I.A. No. 300 of 2006

on 19.05 2006 for getting handwriting expert opinion in the Department of Forensic Science, Chennai in respect of the disputed signature found in

Ex.A1, with that of the admitted signature found in Ex.A5. The same was opposed by the Plaintiff/revision Petitioner. Subsequently, the said

application was dismissed.

The Learned Counsel for the Respondent further argued that already for the very same relief application in I.A. No. 300 of 2006 was filed and

orders were passed. Therefore, the order passed in I.A. No. 300 of 2006 has become final and cannot be reopened.

The Learned Counsel further argued that the revision Petitioner has filed several, interlocutory applications namely I.A. No. 162 of 2010, I.A.

No. 112 of 2010, and I.A. No. 213 of 2010 which were filed only to drag on the proceedings. The Respondent is aged about 75 years. Under

the circumstances, the present revision petition is not maintainable since the interlocutory application in I.A. No. 244 of 2010 was disposed on

merits.

In support of his arguments, the Learned Counsel for the Respondent cited a judgment in the case of N. Chinnasamy Vs. P.S. Swaminathan, .

The relevant portion of the said judgment reads as follows:

Evidence Act, 1872, Sections 45 and 73 - Principles regarding Examination of Documents by Handwriting Expert or other Experts - Section 73

authorises court to compare disputed signature with admitted signature and arrive at own conclusion regarding genuineness of signature but it is

always safe to take aid of handwriting expert to scientifically compare such handwriting with reasons - Documents should be examined in court

premises in presence of responsible officer of court and sending original document in custody of court to Handwriting Expert is bad procedure and

where it is necessary to sent it to expert Application u/s 73 or 45 should be treated as Application for appointment of Commissioner and expert

should be directed to conduct examination of document in presence of Commissioner and expert could be given photo copies of documents if he

inspects same in court premises in presence of responsible officer of Court-Application filed belatedly is objectionable - Appellant Court could

seek expert''s opinion even if Trial Court had compared signature and arrived at some conclusion - When Defendant disputes signatures in

document relied on by Plaintiff it is for Plaintiff to take steps for examination of disputed signature by sending document to handwriting expert -

Defendant filed written statement disputing signature in agreement and five years thereafter filed Application to send document for comparison by

expert with admitted signature without referring to any document containing admitted signature - Dismissal of Application by Trial Court upheld.

In another judgment in the case of M. Govindaraj v. Dr. V. Nallasivan reported in 2008 (2) CTC 580. The relevant portion of this judgment

reads as follows:

Indian Evidence Act, 1872 (1 of 1872), Section 45 and 73 - Comparison of signature and Expert Opinion - Practice and Procedure - Principles

enunciated - Section 73 empowers court to compare admitted and disputed signature - It is however safe for court to take aid of expert as

provided u/s 45 - it is a bad practice to send original documents out of court - Handwriting expert to be permitted to inspect documents in Court

premises, wherever possible, in presence of responsible Court Officers and if required photo copies may be taken by expert - when it is not

possible to examine documents inside Court premises for genuine reasons then alone Court should find alternative way of achieving object to do

justice by appointing an Advocate Commissioner to be present at time of investigation at laboratory - Trial Court exercising powers u/s 73 does

not bar First Appellate Court to get expert opinion as same would give much more clarity for arriving at a decision on truth and genuineness of a

disputed document - When Defendant denies his/her signature in a particular document Plaintiff has to take steps for examination - However, filing

of Application for examination should not be belated or with a view to protract proceedings.

In another judgment in the case of Chandran Udayar v. Kasivel reported in 2008 (3) CTC 31. The relevant portion of this judgment reads as

follows:

Evidence Act, 1872 (1 of 1872), Section 73 - Comparison of signature by Court - Permissibility -There is no legal bar to a Judge using his own

eyes to compare disputed writing with admitted writing without aid of handwriting expert - But power of Court to compare signature should be

sparingly used with caution-Prudent course is to obtain opinion of expert - Then Court should compare handwriting with its own eyes for proper

assessment of all evidence. Evidence Act, 1872 (1 of 1872), Section 45 -Opinion of experts - Handwriting expert - Value of expert opinion -

Whether opinion of expert conclusive? Held: Opinion of handwriting expert is relevant but not conclusive - Evidence of handwriting expert is to be

corroborated by other evidence - It is duty of Court to come to its own conclusion with assistance of expert opinion.

Per contra, the learned Senior counsel argued that the revision petitioner is the Plaintiff that the revision Petitioner is the Plaintiff and she had

sought remedy against the Defendant. As such, the question of dragging on the proceedings does not arise. Further, there is no order in favour of

the revision Petitioner against the Respondent/defendant. The Learned Counsel has sought one final chance to prove the case. If the interlocutory

application, the interest of the Respondent/defendant will not be prejudiced.

In view of the facts and circumstances of the case and arguments advanced by the learned Senior Counsels for the revision Petitioner and

arguments advanced by the Learned Counsel for the Respondent and on perusing the order and decretal order passed in the interlocutory

application, this Court is of the considered opinion that if the signature in Ex.A1 is compared with the original signature register of document No.

38 of 2006 dated 04.01.2006, the interest of the Respondent/defendant will not be prejudiced. The revision Petitioners has sought permission to

prove her case. If this Court granted the same, the Defendant will not be put into any lardship. Therefore, this Court sets aside the order passed in

I.A. No. 244 of 2010 in A.S. No. 54 of 2006 and consequently allows the I.A. No. 244 of 2010 in A.S. No. 54 of 2006 on the file of the District

Judge, Kanyakumari. this Court further directs the learned Judge to issue summons to the sub-Registrar, Nagercoil to produce original signature of

register of document No. 38 of 2006 dated 04.01.2006 and is directed to dispose the appeal within a period of three months, after verifying the

authenticity of the signatures contained in the said documents, without being influenced by the discussion of this Court.

Resultantly, the above civil revision petition is allowed with the above observations. Consequently, the dismissal order passed in I.A. No. 244

of 2010 in A.S. No. 54 of 2006 dated 29.03.2011, on the file of District Judge, Kanyakumari at Nagercoil is set aside. Connected miscellaneous

petition is closed. There is no order as to costs.