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Citation Codes
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citation codes
Case Number
Judges
  • Mr. Justice Raju
Acts
  • provisions contained in Section 73 of the Indian Evidence Act,
  • Section 73 of the Indian Evidence Act,
  • SECTION 73 EVIDENCE ACT
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Mr. Justice Raju
Acts
  • provisions contained in Section 73 of the Indian Evidence Act,
  • Section 73 of the Indian Evidence Act,
  • SECTION 73 EVIDENCE ACT
See more information ...
Smart Summary

Concise Analytical Summary of the Opinion

Factual and Procedural Background

The plaintiff (appellant in this second appeal) originally sued in O.S. No. 608 of 1977 in the District Munsif Court, Cuddalore, seeking specific performance of an unregistered agreement of sale dated 8.10.1977 (Ex. A-1) allegedly executed by the first defendant, a direction to execute a sale deed or for the court to execute it in default, and for future mesne profits.

The plaintiff's pleaded case in the trial court included that the suit property belonged to the first defendant by virtue of a final decree in O.S. No. 285 of 1969, that the first defendant agreed to sell the property for Rs. 2,700 by Ex. A-1, that Rs. 1,100 was paid at execution, the balance Rs. 1,600 was due within 30 days, and that an additional Rs. 1,000 was paid and endorsed on 25.10.1977 leaving a balance of Rs. 600. The plaintiff alleged the defendants failed to honour the agreement after notice dated 4.11.1977 and that a reply denied execution of the agreement, prompting the suit.

The first defendant denied execution and alleged the agreement was a forgery, denied receiving any money or signing the endorsement. Defendants 2 and 4 remained ex parte. Both sides led oral and documentary evidence. The trial court decreed the suit on 25.2.1981 in favour of the plaintiff. The first defendant appealed (A.S. No. 125 of 1981) and the District Court (first appellate court) reappreciated evidence, found the plaintiff had failed to prove execution of the agreement, allowed the appeal and dismissed the suit on 13.1.1983. The plaintiff brought the present second appeal challenging that order.

Legal Issues Presented

  1. Whether the learned trial Judge was justified in deciding the genuineness of the signature on Ex. A-1 by comparing the disputed signature with admitted signatures himself under Section 73 of the Indian Evidence Act, without examining the scribe or attestors or obtaining an expert handwriting opinion.
  2. Whether, in the factual matrix of this case (notably the existence of multiple attestors who were not examined and inconsistencies in witness testimony), the appellate court was correct in reversing the trial court's decree and dismissing the suit for failure to prove execution of Ex. A-1.
  3. Whether the plaintiff had discharged the onus to prove due execution of the agreement in the face of an explicit plea of forgery by the first defendant, given that specific performance is a discretionary remedy.

Arguments of the Parties

Appellant's Arguments

  • The learned trial Judge was entitled, under Section 73 of the Indian Evidence Act, to compare the disputed signature with admitted signatures and to conclude on genuineness by his own comparison.
  • Reliance was placed on the decision in Narasimha Rao v. Someshwar Joshi where the court compared signatures (in a promissory note context) and held the signature properly proved; that decision was invoked to support the trial Judge's method.
  • The appellant emphasized the statutory enabling provision (Section 73) and argued that the first appellate court erred in criticising the trial court's comparison-based finding.

Respondents' Arguments

  • Respondents adopted the reasons assigned by the learned first appellate Judge and submitted that no exception could be taken to the appellate court's findings, which were supported by proper and sufficient evidence.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Narasimha Rao v. Someshwar Joshi Illustration of a case where the trial court compared disputed signature with admitted signatures (in a promissory note) and the signature was held to have been properly proved; the decision also contained a judicial caution that the opinion of a handwriting expert given ex parte is rarely conclusive and that revisional interference by the High Court should be sparing. The appellant relied on this decision to support the trial Judge's practice of comparison. The court considered the case but distinguished the present factual circumstances and emphasised that cautionary dicta in such precedents do not permit sole reliance on judicial comparison where other indicia (such as unexamined attestors and inconsistencies) are present.
G. Bharathan v. K. Sudhakamn The Supreme Court reiterated prior principles (including those in State (Delhi Administration) v. Pali Ram) warning against ignoring earlier cautions about judicial comparison of handwriting and the prudence of seeking expert assistance. The court invoked this recent pronouncement to reinforce the view that reliance solely on the judge's unaided comparison is deprecated and that the trial Judge's approach was vulnerable to criticism in the present facts.
State (Delhi Administration) v. Pali Ram Earlier authority laying down principles/warnings and caution against basing findings solely on unaided comparison of handwriting and endorsing the prudence of expert opinion. The court noted that G. Bharathan reiterated the principles from this case and used that line of authority to support the conclusion that the trial Judge should not have rested the case on his own comparison where other relevant evidentiary opportunities (examination of attestors/scribe, expert opinion) were available and unutilised.

Court's Reasoning and Analysis

The court acknowledged that Section 73 of the Indian Evidence Act permits comparison of a disputed signature, writing or seal with one admitted or proved to the court's satisfaction. However, it analysed the authorities and practice and emphasised established judicial caution: although there is no absolute legal bar to a judge comparing writings with his own eyes, prudence and caution require the court not to base a conclusion solely on such comparison. The preferable course, the authorities indicate, is to obtain expert handwriting opinion and exercise care because unaided judicial comparison is a mode of proof that is hazardous and often inconclusive.

The court then applied this legal framework to the facts of the case. It found that the trial Judge committed a serious error by deciding the genuineness of the signature on Ex. A-1 principally on the basis of his own comparison because:

  • Ex. A-1 had the signatures of a scribe and more than half a dozen attestors, and the endorsement in Ex. A-2 was also attested, yet none of those persons connected with execution were examined in court.
  • The witnesses who were examined (other than those connected with actual execution) did not speak in unison; the first appellate Judge highlighted contradictions, variations and inconsistencies in their evidence which the trial Judge had not adequately taken into account.
  • Given the first defendant's explicit plea of forgery, the plaintiff bore the obligation to prove due execution; specific performance being discretionary required convincing proof of execution and not reliance on an unaided comparison.

Accordingly, the court held that, in the absence of corroborative or direct evidence from attestors or a competent expert opinion, it was unsound for the trial Judge to decide the matter solely on comparison. The appellate court was therefore justified in reappreciating the evidence and in interfering with the trial court's decree.

Holding and Implications

SECOND APPEAL DISMISSED.

Implications:

  • The judgment and decree of the first appellate court (which allowed the appeal and dismissed the suit) stand; the plaintiff's decree at trial was set aside by the appellate court and that reversal is sustained by this court.
  • No costs were awarded (the opinion records "No costs").
  • The court stressed procedural evidentiary obligations: where forgery is pleaded and attestors/scribe exist on the document, the party seeking specific performance must properly prove execution, ordinarily by examining those connected with execution or by obtaining expert handwriting opinion; reliance solely on a judge's unaided comparison in such circumstances is deprecated by higher authority.
  • The opinion does not purport to lay down a new legal rule; it applies existing authorities and warnings about the hazards of unaided judicial comparison to the specific facts and dismisses the second appeal on that basis.

This summary is strictly confined to the matters and materials expressly contained in the provided opinion.

Show full summary ...

    Kothandapani Padayachi v. Rangantha Padayachi And Ors.

    1. 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.

    2. 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.

    3. 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.

    4. 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.

    5. 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.

    6. 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.

    7. 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 v. Someshwar 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.

    8. 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.

    9. 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 G.Bharathan v. K.Sudhakamn, , once again reiterated the principles laid down in State (Delhi Administration) v. 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.

    10. 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 under Section 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.

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    Comments

    Kothandapani Padayachi v. Rangantha Padayachi And Ors.
    (Oct 15, 1996)