Bombay High Court
Devkumar Fakirchand Hajare vs Lpbha Son Of Fakirchand Hajare on 28 September, 2017
Bench: A.S. Chandurkar
sa230.04
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Second Appeal No.230 of 2004
Devkumar son of Fakirchand Hajare,
aged 54 years,
occupation - cultivator,
resident of at Punapur,
Post - Bhandewadi,
Tq. & Distt. Nagpur. ..... Appellant
Defendant
Versus
Lobha son of Fakirchand Hajare,
aged about 48 years,
occupation - Agriculturist,
resident of at Punapur,
Post - Bhandewadi,
Tq. & Distt. Nagpur. ..... Respondent
Plaintiff
*****
Mr. Amol Mardikar, Adv., for the appellant.
Mr. S. B. Tiwari, Adv., holding for Mr. R.R. Vyas, Adv., for the
respondent.
*****
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2
CORAM : A.S. CHANDURKAR, J.
Date : 28th September, 2017
ORAL JUDGMENT:
01. The unsuccessful defendant who is aggrieved by the decree
for partition and separate possession passed by the trial Court and
affirmed by the first appellate Court has filed this appeal.
02. The respondent is the younger brother of the appellant. It is
the case of the respondent-plaintiff that field Survey Nos. 116 and 8
were jointly purchased by both the brothers. The appellant-defendant
on 7th August, 1993 had executed a document so as to make a show
that share was being granted to the plaintiff. However, as the
defendant did not grant any share in the two fields to the plaintiff, he
filed a suit for partition and separate possession on 1st February, 2000.
03. In the Written Statement, it was denied that the suit fields
were purchased out of joint funds. Execution of the Relinquishment-
Deed dated 7th August, 1993 was also denied. It was pleaded that
both the suit fields were exclusively owned by the defendant and the
plaintiff had no right therein.
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04. After the parties led evidence, the trial Court recorded a
finding that both the suit fields were purchased out of joint funds.
After holding that the Relinquishment-Deed at Exh.21 was duly signed
by the defendant, the trial Court passed a decree for partition and
separate possession. The appeal filed by the defendant was also
dismissed. Hence, the present Second Appeal has been filed.
05. The following substantial question of law was framed while
admitting the Second Appeal:-
"Whether Exh.21 was not liable to be relied upon even
for collateral purpose in view of prohibition contained in
Section 34 of Bombay Stamps Act and Section 49 of
Indian Registration Act?"
06. Shri Amol Mardikar, learned counsel for the appellant-
defendant, submitted that both the Courts committed an error in
coming to the conclusion that the Relinquishment-Deed at Exh.21 was
proved to have been duly signed by the defendant. He submitted that
the scribe was not examined. The attesting witnesses to the said
document could not be examined. Only on the basis of deposition of
another brother - Manohar, the trial Court recorded a finding by
referring to Section 47 of the Indian Evidence Act, 1872 [for short,
"the said Act"], that the said document was signed by the defendant.
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He submitted that the trial Court was not justified in the facts of the
present case in comparing the signatures of the defendant on Exh.21
with those on other documents, especially when there was no expert
evidence to prove that the said document was, in fact, signed by the
defendant. It was urged that the appellate Court also committed the
same error by venturing into comparison of signatures. Relying upon
the judgment of the Honourable Supreme Court in State (Delhi
Administration) Vs. Pali Ram [AIR 1979 SC 14], it was submitted
that the Court must be slow in comparing the signatures of the person
concerned and this power should be exercised only in exceptional
cases. It was then submitted that the contents of Exh.21 could not
have been used for collateral purposes when the execution of the said
document itself was not proved. In that regard, he placed reliance on
the judgment in K. B. Saha & Sons Pvt. Ltd. Vs. Development
Consultant Ltd. [ (2008) 8 SCC 564]. It was, therefore, submitted
that both the Courts committed an error in decreeing the suit.
07. Shri S. B. Tiwari, learned counsel for the respondent,
supported the impugned judgments. According to him, the deposition
of the brother - Manohar was sufficient for the Court to come to the
conclusion that Exh.21 had been signed by the defendant. As the said
brother was familiar with the signature of the defendant, his deposition
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could be taken into consideration in the light of provisions of Section
47 of the said Act. The learned counsel referred to the provisions of
Sections 45, 47, 61 and 73 of the said Act and justified the exercise
undertaken by both the Courts in comparing the signature of the
defendant with his other signatures on record. The learned counsel
placed reliance on the judgments in [1] Rao Saheb Vs. Rangnath
Gopalrao Kawathekar (dead by L.RS.) and others [ (1972) 4 SCC
181], [2] Mobarik Ali Ahmed Vs. The State of Bombay [ AIR 1957
SC 857], and [3] Fakhruddin Vs. State of Madhya Pradesh [ AIR
1967 SC 1326]. It was, thus,submitted that the Courts committed an
error in decreeing the suit. It was then submitted that Exh.21, even if
unregistered, could be considered for collateral purposes, inasmuch as
no objection was raised by the defendant when said document was
exhibited. For said purpose, he relied on the judgment of the Full
Bench in Hemendra Rasiklal Ghia Vs. Subodh Mody [2008 (6) Mh.
L.J. 886].
08. I have heard the learned counsel for the parties at length
and I have perused the impugned judgments.
09. The decree for partition and separate possession is
principally based on the execution of the Relinquishment-Deed dated
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7th August, 1993 at Exh.21. As per this document, the defendant is
stated to have admitted that both the suit fields were jointly purchased
by them, but the sale-deeds were got executed in the name of the
defendant. The Courts having accepted the execution of this
document have thereafter passed a decree for partition and separate
possession. For proving the execution of this document, the plaintiff
had examined his other brother - Manohar below Exh.26. This witness
identified the signatures of the defendant on Exh.21. In the cross-
examination, he stated that he had seen the document at Exh.21 for
the first time in the Court. He further admitted that on the first and
second pages of Exh.21, the initials of the defendant had been put,
while on the third page his full name with signature was seen. The
trial Court on the basis of this deposition and by referring to provisions
of Section 47 of the said Act has held that the signature and recitals of
Exh.21 appeared to be genuine. The first appellate Court has referred
to deposition of said witness and has then compared the signatures of
the defendant with those on Exhs. 7, 11, 26 and 30. On that basis, it
has accepted the finding recorded by the trial Court.
10. Under Section 73 of the said Act, it is open for the Court for
the purposes of ascertaining whether a signature is that of a person by
whom it purports to have been written or made to compare the same
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with the signature that has to be proved. The Honourable Supreme
Court in State [Delhi Administration] [supra] has held that though
there is no legal bar for the Judge to use 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 handwriting in question. It is further observed that it would
not be advisable for the Judge to take upon himself the task of
comparing the admitted writing with the disputed one to find out
whether two agree with each other and the prudent course is to obtain
the opinion and assistance of expert. In State of Maharashtra Vs.
Sukhdeo Singh & another [AIR 1992 SC 2100], it has been
reiterated that prudence demands that the Court should be extremely
slow in venturing an opinion on the basis of mere comparison, more so
when the quality of evidence in respect of the admitted writings is not
of higher standard.
11. For the purpose of examining as to whether on a plain
comparison of the signature on Exh.21 with those on the documents at
Exhs.7, 11, 26 and 30, the same are identical with the signature on
Exh.21, I have verified the records of the case. I find that the manner
in which the signatures of defendant on Exhs.6, 7, 11, 26 and 30 are
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found, it would be unsafe to come to an exact conclusion that these
signatures are identical to signatures found on Exh.21. In other words,
it is found more desirable that the signatures on Exh.21 are examined
by a handwriting expert before a conclusion can be drawn that this
document was signed by the defendant. I find that merely on the basis
of such comparison, a conclusion could not have been arrived at by
both the Courts. Moreover, under Section 47 of the said Act, the
opinion as expressed by the plaintiff's witness no.2 is merely a
relevant fact. I, therefore, do not find myself in a position to uphold the
exercise undertaken by both the Courts in exercise of powers under
Section 73 of the said Act of comparing the signatures without there
being any expert opinion. I find it justifiable to adopt the course as
contemplated in paragraph 32 of the decision in State [Delhi
Administration] [supra].
12. In view of this conclusion, the proper course would be to
remand the suit to the trial Court to enable an opinion of the
handwriting expert to be placed on record so as to assist the Court in
determining the question as to whether Exh.21 was duly signed by the
defendant. In that view of the matter, it is not necessary to record a
finding as to whether Exh.21 could have been relied upon for collateral
purposes.
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13. Accordingly, the following order is passed:-
ORDER
[a] The judgment of the trial Court in Regular Civil
Suit No.233 of 2000 as well as the judgment in
Regular Civil Appeal No. 349 of 2003 are quashed
and set aside.
[b] The proceedings are remanded to the trial Court
which shall appoint a handwriting expert so as to
give an opinion as to the signatures on Exh.21.
The expenses of the handwriting expert shall be
equally borne by both the parties. After receiving
such opinion, the trial Court shall decide the suit
on its own merits and in accordance with law.
[c] It is clarified that this Court has not examined the
correctness of other findings by both the Courts
and the suit should be decided on the basis of the
evidence available on record.
[d] As the suit is of the year 2000, the trial Court shall
decide the same expeditiously and within a period
of six months from the first date of appearance.
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The parties shall appear before the trial Court on
1st November, 2017. Record & Proceedings be
sent back forthwith.
14. Second Appeal is allowed in aforesaid terms with no order as
to costs.
Judge
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