Xavier (deceased) X. Herald vs Vaidooriyam and Others

S. Rajeswaran, J.—The Petitioner is challenging the Order dated 05.02.2008 made in I.A. No. 5915 of 2006 in O.S. No. 967 of 1999 on

the file of the XII Assistant Judge, City Civil Court, Chennai.

The second plaintiff in O.S. No. 967 of 1999 on the file of the XII Assistant City Civil Court, Chennai is the revision petitioner before this

Court. He is aggrieved by the order of the trial court in I.A. No. 5915 of 2006 filed by him to send the original of Ex.B4 Sale deed dated

24.04.1969 along with the original of Ex.A3, A23 and A28 to compare the signature of S.A. Lazarous found there and to give a report. The trial

court dismissed the I.A. No. 5915 of 2006 on 5.02.2008 by holding that as the suit has been pending for more than seven years and as the trial

court itself got ample powers to compare the disputed signatures with the admitted signatures, it does not find any validity or valid reason to send

the original Ex.B4 to Hand writing expert at that stage.

Heard the learned Counsel for the revision petitioner and Mr. R. Krishnamoorthy, the learned Senior Counsel for the third

respondent/Caveator. I have also gone through the entire documents available in the record.

O.S. No. 967 of 1999 has been filed by the plaintiffs for the following reliefs viz.,

(1) The decree of declaration, declaring that the document No. 1176 of 1969 dated 24.04.1969 and other subsequent documents, a Power of

Attorney in document No. 536/95 dated 09.08.1995 and the deed of sale in document No. 3147/95 dated 27.09.1995 is forged and fabricated

one and it is null and void, infructuous and will not bind the plaintiffs or other legal heirs of the late Lazarous and Abarnamary in the suit schedule

property at No. 7, Muthugramani Street, Purasawalkam, Chennai 7;

(2) to pass an order of permanent injunction restraining the third defendant, or their men, agents, servants, representatives or by anybody else or

through her Power of Attorney agent or any legal heirs for any other transaction either sale, or mortgage of the suit schedule property bearing door

No. 7, Muthugramani Street, Purasawalkam, Chennai 7;

(3) to pass an order of permanent injunction restraining the third defendant, or her men, agents, servants, representatives, henchmen, legal heir or

anybody else, from disturbing the peaceful possession and enjoyment of the property of the plaintiffs bearing door No. 7, Muthugramani Street,

Purasawalkam, Chennai 7.

According to the plaintiffs, the suit property was originally purchased by the first plaintiff''s father S.A. Lazerous and his mother Abarna Mary.

The sale deed executed in their favour was registered as Doc. No. 2828/34 dated 06.10.1934. During their lifetime, the parents of the first plaintiff

mortgaged the suit schedule property on several occasions namely, 9.7.1935, 04.05.1945, 16.04.1949, 16.10.1956 and 09.08.1958 and finally

on 22.04.1964. The last mortgage made on 22.04.1966 was cancelled on 29.04.1974. After the death of the parents of the first plaintiff, the

plaintiffs put up a pucca building in the suit schedule premises and spent more than Rs. 7 lakhs after removing the old structure. The first defendant

is the wife of the first plaintiff''s maternal uncle. The first defendant and her late husband made very many forged and fabricated documents against

the parents of the first plaintiff with an intention to grab the suit schedule property. After the death of the first plaintiff''s parents, the first and third

defendants sent a letter to the first plaintiff stating that the first plaintiff had to pay a monthly rent of Rs. 2000/- to the third defendant who is the

owner of the suit property having purchased the same from the second defendant who is the Power of Attorney. Shocked and surprised by the

demand, the plaintiffs went to the house of the first defendant at Purasaiwalkam and found that the first defendant is suffering from mental disorder

and the first defendant''s son colluded with the second defendant and the third defendant to make some forged documents for the suit property in

an illegal manner and in favour of the third defendant. On 17.10.1995, the first plaintiff lodged a complaint before G-1 Vepery Police Station.

According to the plaintiffs, the sale deed dated 24.04.1969 said to have been executed by the first plaintiff''s parents, the Deed of Power dated

9.8.1995 said to have been executed by the first defendant in favour of the second defendant and the sale deed dated 27.09.1995 said to have

been executed by the second defendant in favour of the third defendant are all forged and fabricated documents and therefore, they filed O.S. No.

967 of 1999 for the aforesaid reliefs.

The third defendant filed a written statement stating that she purchased the property from the first defendant through her Power agent, the

second defendant, by a registered deed of sale dated 27.09.1995. She filed R.C.O.P. No. 1594 of 1995 on the file of the XVI Judge, Small

Causes Court, Chennai for eviction on the ground of wilful default in the payment of rent from September 1995 onwards at the rate of Rs. 2000/-

per month. She denied the allegation about the health conditions of the first defendant as false. She further stated that the vendors of the first

defendant never questioned the Sale deed nor raised any dispute with the first defendant about the sale deed dated 24.04.1969 when they were

alive. When the Executors of the sale deed dated 24.04.1969 have not questioned the validity of the sale deed, the legal heirs of the vendors could

not question the same. According to her, there is no forgery of any document as alleged in the plaint and it was further pointed out that the plaintiffs

have not taken any criminal action for the alleged forgery of documents as stated in the plaint. Hence, she prayed for the dismissal of the suit.

In 2002, when the suit was pending, the first plaintiff filed I.A. No. 19972 of 2002 praying to direct the defendants in the suit to produce the

original document namely, Ex.B4, a sale deed dated 24.04.1969 before the Court and also to send Ex.B4 for experts opinion to compare the

signature of Lazarous as found in Ex.B4 with that of Ex.A3, A25, A26 and A28 and to give a report. In the affidavit filed in support of I.A. No.

19972 of 2002, the first plaintiff stated that his parents mortgaged the suit schedule property to several parties on different occasions and the said

mortgage deeds are marked as Ex.A3, A23, A25, A26 and A28. In the above documents, his mother Abarna Mary signed in english as L.Abarna

Mary whereas in Ex.B4 it was found that her mother signed as Gnanamani in tamil instead of L.Abarna Mary. Therefore, the sale deed is a forged

and created document. It is further stated that his father''s signature found in each page of Ex.B4 differ from one page to another and it is also not

the signature of his father. The defendants have not filed the original document of Ex.B4 and therefore, the original of Ex.B4 should be sent for

expert opinion for comparing the signatures of his father found in Ex.A3, A23, A25, A26 and A28 with Ex.B4 to find out the truth. This was

resisted by the third defendant by filing a counter affidavit. The trial court by order dated 10.02.2003 disposed of I.A. No. 19972 of 2002 by

stating that as far as the original of Ex.B4, there is an assurance by the Counsel for the defendant that at the time of cross examination of D.W.1,

the original Ex.B4 would be produced. In so far as obtaining the hand writing expert''s opinion, the trial court found that there is no immediate

requirement and comparing the signatures of Gnanamani does not arise as there is no other admitted document with the signature of Gnanamani.

Thus, the trial court disposed of the interim application with a direction to produce all the original documents for which certified copies of the

documents were marked on the side of the defendants for the purpose of cross examination of D.W.1 on 17.02.2003.

Aggrieved by the order of the trial court dated 10.02.2003, the plaintiffs filed C.R.P. No. 464 of 2003 and this Court by order dated

21.10.2005 disposed of the Civil Revision petition by holding that after cross examination of D.W.1, it is open to the plaintiffs to file an application

seeking similar relief. Accordingly, reserving such liberties to the plaintiffs, this Court dismissed the C.R.P.No.464 of 2003.

Thereafter, the above suit has been posted for arguments and at that stage, the second plaintiff filed a petition to re-open the case of the plaintiff

to recall P.W.2 and also to receive the documents. All the applications filed in I.A. No. 4187, 4188 and 4189 of 2006 were allowed by the trial

court on 14.03.2006. Then, the suit was posted for cross examination of P.W.2 on 15.03.2006. On 15.03.2006, even before P.W.2 was cross

examined, the third defendant filed a Memo and produced documents namely original of Ex.B4 sale deed dated 24.04.1969 and Ex.B2 sale deed

dated 27.09.1995. Though the plaintiff objected to the manner in which the original documents were filed at this stage, recorded the objections of

the plaintiffs and the trial court received the documents on 15.03.2006. At this stage, the plaintiffs filed I.A. No. 5915 of 2006 to send the original

of Ex.B4 sale deed dated 24.04.1969 along with the originals of Ex.A3, A23 and A28 to compare the signatures of S.A. Lazerous found therein

and to give a report before the Court.

This was resisted by the third defendant by filing a counter affidavit. The trial court by order dated 05.02.2008 dismissed I.A. No. 5915 of

2006 on the ground that the suit is pending for more than seven years and the trial court itself can compare the disputed signature. Assailing the

orders of the trial court dated 05.02.2008, the above Civil revision petition has been filed under Article 227 of the Constitution of India.

From the acts narrated above, it is very clear that the plaintiffs could not be accused of any delay in filing I.A. No. 5915 of 2006 as admittedly

the original of Ex.B4 sale deed dated 24.04.1969 was received by the trial court on 15.03.2006, when the suit was posted for cross examination

of P.W.2. That apart, on an earlier occasion, a similar application was filed by the plaintiff in I.A. No. 19972 of 2002 and the same was disposed

of by the trial court on 10.02.2003. When this was challenged by the plaintiffs before this Court, in C.R.P.No.464 of 2004, this Court granted

liberty to the plaintiffs to file an application seeking the similar relief after cross examination of D.W.1. In fact, an undertaking was given by the

defendants before the trial court in I.A. No. 19972 of 2002 that the original of Ex.B4 would be produced at the time of cross examination of

D.W.1. This was also recorded by this Court in C.R.P. No. 464 of 2003 on 21.10.2005. Therefore, on the ground of delay and on the ground

that the suit has been pending for more than seven years, I.A. No. 5915 of 2006 could not be thrown out.

In so far as the second ground on which the trial court rejected the I.A. No. 5915 of 2006 is concerned, I am unable to accept the reasons

given by the trial court that it has got ample powers to compare the disputed signatures with the admitted signatures. It is no doubt true that in

appropriate cases, the trial court itself would compare the signatures but at the same time it is to be borne in mind that comparison of signatures is a

job of the experts and therefore, it is desirable to get an expert opinion in a matter of this nature.

In 1977 M.L.J. 250 (State (Delhi Administration) v. Pali Ram), the Hon''ble Supreme Court while dealing with Section 73 of the Evidence

Act, held as under:

Section 73 is therefore, to be read as a whole, in the light of Section 45. Thus read, it is clera that a Court holding an inquiry under the C.P.C.,

in respect of an offence triable by itself or by the Court of Session, does not exceed its powers u/s 73 if, in the interest of justice, it directs an

accused person appearing before it, to give his sample writing to enabling the same to be compared by a handwriting expert chosen or approved

by the Court, irrespective of whether his name was suggested by the prosecution or the defence , because even in adopting this Course, the

purpose is to enable the Court before which he is ultimately put up for trial, to compare the disputed writing with his (accused''s) admitted writing,

and to reach its own conclusion with the assistance of the expert.

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 prudence and

caution, hesitate to base is 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 find out whether the two agree with each other; and the prudent course is to obtain the

opinion and assistance of an expert.

It is not the province of the expert to act as Judge or jury. As rightly pointed out Titli V. Jones, the real function of the expert is to put before

the Court all the materials, together with reasons which induce him to come to the conclusion, so that the Court, although not an expert, may form

its own judgment by its own observation of those materials. Ordinarily, it is not proper for the Court to ask the expert to give his finding upon any

of the issues, whether of law or fact, because strictly speaking, such issues are for the Court or jury to determine. The handwriting expert''s

function is to opine after a scientific comparison of the disputed writing with the proved or admitted writing with regard to the points of similarity

and dissimilarity in the two sets of writings. The Court should then compare the handwritings with its own eyes for a proper assessments of the

value of the total evidence.

In O. Bharatan Vs. K. Sudhakaran and another, , the Hon''ble Supreme Court observed as follows:

Notwithstanding the above fact, namely, the learned Judge while doubting the testimony of the witnesses, instead of confronting them in a legal

way to get the truth, jumped to his own conclusion. The learned Judge in the course of appreciating the scope of Section 78 of the Evidence Act

and having given a finding that u/s 73 of the Evidence Act a disputed signature could be compared only with the admitted signatures, proceeded to

compare the signatures found in the counterfoils to find out whether both the signatures were to be by the same person.

On the peculiar facts of this case, the learned Judge erred in taking upon himself the task of comparing the disputed signatures on the

counterfoils without the aid of an expert or the evidence of persons conversant with the disputed signatures. Therefore, the approach made by the

learned Judge is not in conformity with the spirit of Section 73 of the Evidence Act. Though the rulings of this Court in The State (Delhi

Administration) Vs. Pali Ram, and Fakruddin v. State of Madhya Pradesh AIR 1967 SC 1326, were brought to his notice, the learned Judge

proceeded to compare the disputed signatures by himself and decided the issue. While doing so, the learned Judge observed as follows:

So all these witnesses are in the habit of occasionally putting their signature. Strangely enough most of the witnesses either denied their signature or

expressed their inability to identify their signature. Even in the case of some well educated persons when counterfoils containing the signatures were

shown to them, they stated that they could not identify the signatures. Every reasonable prudent person would be able to identify his signature

whenever the signature is shown to him. It is clear that these witnesses denied their signatures or failed to identify the signature with a definite

purpose that atleast one signature should not be taken as the admitted signature so as to make a comparison with the denied signature, it is also

possible that the witnesses who had cast more than one vote pretended that they could not identify any of the signatures to make believe that they

had not cast more than one vote. The denial of the signature and failure of those witnesses to identify their own signatures is to be viewed in the

background of similarity of the signatures found in the various counterfoils.

Again the learned Judge observed as follows:

It is true that u/s 73 of the Evidence Act a disputed signature could be compared only with the admitted signature or signature proved to he

satisfaction of the Court to have been written or made by that person. Reliance was placed on the decision reported in The State (Delhi

Administration) Vs. Pali Ram, and contended that it is not advisable that a Judge should take up the task of comparing the admitted handwriting

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.

This opinion was expressed by the Supreme Court in a criminal case while considering the question whether the accused had committed the

offence of forgery and cheating, in Fakruddin v. State of Madhya Pradesh AIR 1967 SC 1326, the Supreme Court observed that comparison of

the handwriting by the Court with the other documents not challenged as fabricated, upon its own initiative and without the guidance of an expert is

hazardous and inconclusive. These observations were made in the facts and circumstances of such case. But, in the instant case, comparison of the

signature found in the counterfoils are made to ascertain whether both signatures were put by the same person.

xxxxxxxxxxxxxxx

In the instant case, several witnesses who are alleged to have exercised their franchise more than once admitted that their names have been

included in the electoral roll. They would say that they cast only one vote. In cases where their names are entered more than once in the electoral

roll these witnesses admitted one entry and denied the other. The counterfoils corresponding to the admitted entry in the electoral roll must contain

the signature of the voter. Even though this signature has also been denied by the witness or rather failed to be identified by the witness, it can

safely be taken as the admitted signature of the witness. That signature could be very well compared with the signature appearing in the disputed

counterfoil.

xxxxxxxxxxxxxxx

So the standard of strict proof can be insisted only in the election petition wherein the election is sought to be set aside on the ground of corrupt

practice. In the instant case, it can only be said that standard of proof should be of high nature, as an election petition is not liable to be set aside on

vague or inaccurate evidence and the Court must uphold an election when two different views are reasonably possible, from the evidence adduced

in the case.

xxxxxxxxxxxxxxx

As already pointed out be me the close similarity in the signature in the counterfoils is also a strong proof to show that the entry related to the same

person. It is also important to note that most of the witnesses denied their signatures on both the counterfoils. They could not identify their own

signature and it is also clear that many of these witnesses changed their signatures and put different signatures in the deposition. In some cases the

witnesses were asked to give specimen signatures and these specimen signatures were taken in open court and they are marked as exhibits in the

case. The specimen signatures in many cases do not tally with the signatures found in the counterfoil of the voter, who admittedly cast his vote as

voter against a particular serial number. With this broad outline in the evidence, I propose to consider the evidence of each witness who allegedly

cast vote more than once.

The learned Judge in our view was not right either in brushing aside the principles laid down by this Court in AIR 1979 SC 14 (supra) on the

ground that it was not a criminal case or taking upon himself the the hazardous task of adjudicating upon the genuineness an authenticity of the

signatures in question even without the assistance of a skilled and trained person whose services could have been easily availed of. Annulling the

verdict of popular will is as much a serious matter of grave concern to the society as enforcement of laws pertaining to criminal offences, if not

more. Though it is the province of the expert to act as Judge or jury after a scientific comparison of the disputed signatures with admitted

signatures, the caution administered by this Court is to the course to be adopted in such situations could not have been ignored unmindful of the

serious repercussions arising out of the decision to the ultimately rendered. To quote, it has ben held in AIR 1979 SC 14 (At P.21) supra):

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 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 find out whether the two agree with each other; and the prudent course is to obtain the

opinion and assistance of an expert.

The necessity for adhering to the said sound advise and guidance is all the more necessary in a case where hundreds of signatures are disputed

and the striking dissimilarities noticed by the Court at the time of the trial of the Election petition.

The learned Counsel appearing for the first respondent was not able to convince us that the learned Judge was right in comparing the signatures

himself at any rate in the peculiar facts and circumstances of the case and rendering the findings against the appellants herein. As we are satisfied on

the peculiar facts of this case also that the learned Judge was not right in deciding hundreds of the disputed signatures by comparing the counterfoils

by himself to declare the votes as void, we need not go into other arguments advanced before us.

In Kuppanna Gounder and another Vs. R. Sivakami, , this Court held as follows:

Merely because the applications were filed at the time of trial to which every one of the parties and their Counsel have contributed, the Court

below ought not to have rejected interlocutory applications without entertaining the same. The object of the Court should be to render substantial

justice and sufficient opportunity should be afforded to prove the disputed Will. As already pointed out not only the party but also the Counsel

appearing for the parties on either side have contributed for the delay and present situation, not to speak of the delay in Courts and not to speak of

the innumberable boycotts resorted to by the members of Bar which at times results in unexpected results or consequences.

In the foregoing circumstances, taking into consideration of totality of the facts and circumstances, set out above and without expressing

anything on merits, the order of the Court below under revision is set aside, and the matter is remitted back to the Court below for fresh

consideration of the interlocutory applications on merits and according to law, after hearing either side.

In the light of the above judgments, I am of the considered view that the trial court is certainly not correct in taking up the task of comparing the

disputed signatures with that of the admitted signatures, in the peculiar facts and circumstances of the present case. Therefore, I have no hesitation

in holding that the order of the trial court rejecting I.A. No. 5915 of 2006 is not correct.

At the same time, another most important principle with regard to comparing the admitted and disputed signatures in documents was omitted to

be considered by the trial court. It is true that the disputed signature contained in a document could be compared only with an admitted signature

contained in a document with the signature.

Apart from that what is important is that both the documents namely the admitted document as well as the disputed document must belong to a

contemporaneous period. If the documents are not of the contemporaneous period, then it is not advisable to send the documents to the expert for

his opinion for comparison of signatures.

Admittedly, in the present case, what was sought to be compared is Ex.B4 dated 24.04.1969 with Ex.A3, A23 and A28. But, it was neither

stated before the trial court nor established before me that all these documents are contemporaneous in nature with the admitted document namely

Ex.B4. If that being so, onus is cast upon the revision petitioners to prove that all these documents or atleast one of them are contemporaneous in

period.

Therefore, while setting aside the order of the trial court, dated 5.02.2008, I am remanding the matter to the trial court to consider the matter

afresh in so far as this point alone is concerned, namely whether all the Exhibits namely Ex.A3, A23 and A28 and Ex.B4 are contemporaneous

documents. If the trial court finds that if any one of the documents or all the documents marked on the side of the plaintiffs are contemporaneous in

period with Ex.B4, then the trial court should compare the signatures with the help of an expert in this field. It is needless to state here that as far as

possible the expert should be called upon to come to the Court premises to compare and verify the signatures and if it is not possible, then the

Advocate Commissioner is to be appointed to take the original documents to the office of the experts for comparison.

Considering the fact that the suit is of the year 1999, and it is almost in the finishing stage, I direct the trial court to act upon immediately on the

basis of this order and try to dispose of the suit as expeditiously as possible.

In the result, the above Civil Revision petition is allowed in the above terms. No cost. Connected M.P. No. 1 of 2008 is closed.