Jharkhand High Court
Ajay Choubey vs Sushila Devi on 29 April, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
[2025:JHHC:12848 ]
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No. 698 of 2024
1. Ajay Choubey, son of Haldar Prasad Choubey,
aged about 55 years, resident of Near Sadhan Kutir,
Chouthai Kulhi, Jharia, P.O. & P.S. Jharia, District
Dhanbad.
2. Rahul Choubey, son of Haldar Prasad Choubey,
aged about 44 years, resident of 164 B, Nag Nagar
Village Susnilewa, P.S. Barwadda, Р.О.
Bharwardaha, District Dhanbad.
..... ... Petitioners
Versus
1. Sushila Devi, wife of Late Haldhar Prasad
Choubey, resident of Jharia Main Road, P.O. & P.S.
Jharia, District Dhanbad.
2. Binay Choubey, son of Haldar Prasad Choubey,
resident of Near Sadhan Kutir, Chouthai Kulhi,
Jharia, P.O. & P.S. Jharia, District Dhanbad.
..... ... Opposite Parties
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
------
For the Petitioners : Mr. Rohitashya Roy, Advocate.
: Mr. Tarun Kumar Mahto, Advocate
For the O.P. No. 1 : Mr. Shailesh Kumar Singh, Advocate
: Mr. Abhijeet Kumar Singh, Advocate.
: Mrs. Rashmi Lal, Advocate.
------
08/ 29.04.2025 Heard Mr. Rohitashya Roy, learned counsel appearing for
the petitioners and Mr. Shailesh Kumar Singh, learned counsel
appearing for the O.P. No. 1.
2. Notice upon O.P. No. 2 has already been effected and the
matter was earlier adjourned with a view to provide one more
opportunity to the O.P. No. 2 on 25.03.2025, however, appearance on
behalf of O.P. No. 2 has not been made and further it has been pointed
out that the O.P. No. 2 is the proforma opposite party, as such, this
petition is being heard in absence of O.P. No. 2.
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3. This petition has been filed under Article 227 of the
Constitution of India for setting aside the order dated 28.06.2024,
passed by the District Judge-VI, Dhanbad, in Original Suit (Probate)
No. 02 of 2018, whereby learned court has been pleased to dismiss the
petition dated 28.07.2022 filed by the petitioner under Section 45 of the
Indian Evidence Act, 1872.
4. Mr. Rohitashya Roy, learned appearing for the petitioners
submits that the O.P. No. 1 has instituted the proceeding for grant of
probate with respect to the alleged Will dated 29.08.2012 executed by
the deceased Haldhar Prasad Choubey. He submits that the O.P. No. 1
inter alia stated that the said Haldhar Prasad Choubey married with the
opposite party no. 1 on 14.12.1991 after his first wife expired on
23.11.1989. The testator of the Will was a qualified advocate and he
drafted the said Will in his own handwriting and executed the same on
29.08.2012 whereby the testator appointed the opposite party no. 1 as
the executor of the Will, in view of that the O.P. No. 2 has stated that
the Will is genuine and accordingly, prayed for grant of probate with
respect to the said Will. He further submits that the proforma opposite
party no. 2 appeared in the said probate proceeding and filed her show
cause stating inter alia that the said Haldhar Prasad Choubey never
executed any Will.
5. He then submits that during the pendency of the said
probate case, the petitioners herein and the proforma opposite party no.
2 filed a petition under Section 45 of the Evidence Act read with Order
XXVI Rule 10A of the Code of Civil Procedure for referring the
documents for verifying the signature of Haldhar Prasad Choubey on
the Will with an admitted document i.e. the passport of the deceased
Haldhar Prasad Choubey, which has been marked as Exhibit-5. He then
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submits that the learned court has rejected the same and decided
looking into Exhibits-2 and 5 that the signature is same. He submits that
although in the rejoinder, O.P. No. 1 has stated that she has got no
objection, if the said signature is sent for verification to Government
Forensic Lab. He submits that in view of that the learned court has
ought to allow the said petition, however, it has been rejected.
6. Learned counsel further submits that if two disputed
signatures are there, the learned court is bound to send the same to the
Forensic Lab and to buttress his argument, he relied in the case of
Thiruvengadam Pillai Versus Navaneethammal & Anr., reported in
(2008) 4 SCC 530, wherein the Hon'ble Supreme Court in paras-10, 15
and 16 has held as under:-
"10. On the contentions urged, the following
questions arise for consideration:
(i) Whether the agreement of sale executed
on two stamp papers purchased on different
dates and more than six months prior to date
of execution is not valid?
(ii) Whether the first appellate court was
justified in comparing the disputed thumb
impression with the admitted thumb
impression and recording a finding about
the authenticity of the thumb impression,
without the benefit of any opinion of an
expert?
(iii) Whether the High Court erred in
reversing the judgment of the first appellate
court in second appeal?
Re: Question (ii)
15. Section 45 of the Evidence Act, 1872
relates to "opinion of experts". It provides
inter alia that when the court has to form an
opinion as to identity of handwriting or
finger impressions, the opinion upon that
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point of persons specially skilled in
questions as to identity of handwriting or
finger impressions are relevant facts.
Section 73 provides that in order to
ascertain whether a finger impression is that
of the person by whom it purports to have
been made, any finger impression admitted
to have been made by that person, may be
compared with the one which is to be
proved. These provisions have been the
subject-matter of several decisions of this
Court.
15.1. In State v. Pali Ram [(1979) 2 SCC
158 : 1979 SCC (Cri) 389] this Court held
that a court does not exceed its power under
Section 73 if it compares the disputed
writing with the admitted writing of the
party so as to reach its own conclusion. But
this Court cautioned: (SCC p. 168, para 30)
"30. ... 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 caution was reiterated in O. Bharathan
v. K. Sudhakaran [(1996) 2 SCC 704] .
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Again in Ajit Savant Majagvai v. State of
Karnataka [(1997) 7 SCC 110 : 1997 SCC
(Cri) 992] referring to Section 73 of the
Evidence Act, this Court held: (SCC p. 122,
paras 37-38)
"37. ... The section does not specify by
whom the comparison shall be made.
However, looking to the other provisions of
the Act, it is clear that such comparison may
either be made by a handwriting expert
under Section 45 or by anyone familiar with
the handwriting of the person concerned as
provided by Section 47 or by the Court itself.
38. As a matter of extreme caution and
judicial sobriety, the Court should not
normally take upon itself the responsibility
of comparing the disputed signature with
that of the admitted signature or
handwriting and in the event of the slightest
doubt, leave the matter to the wisdom of
experts. But this does not mean that the
Court has not the power to compare the
disputed signature with the admitted
signature as this power is clearly available
under Section 73 of the Act."
15.2. In Murari Lal v. State of M.P. [(1980)
1 SCC 704 : 1980 SCC (Cri) 330] this Court
indicated the circumstances in which the
court may itself compare disputed and
admitted writings thus: (SCC p. 712, para
12)
"12. The argument that the court should not
venture to compare writings itself, as it
would thereby assume to itself the role of an
expert is entirely without force. Section 73 of
the Evidence Act expressly enables the court
to compare disputed writings with admitted
or proved writings to ascertain whether a
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writing is that of the person by whom it
purports to have been written. If it is
hazardous to do so, as sometimes said, we
are afraid it is one of the hazards to which
judge and litigant must expose themselves
whenever it becomes necessary. There may
be cases where both sides call experts and
two voices of science are heard. There may
be cases where neither side calls an expert,
being ill-able to afford him. In all such
cases, it becomes the plain duty of the court
to compare the writings and come to its own
conclusion. The duty cannot be avoided by
recourse to the statement that the court is no
expert. Where there are expert opinions,
they will aid the court. Where there is none,
the court will have to seek guidance from
some authoritative textbook and the court's
own experience and knowledge. But
discharge it must, its plain duty, with or
without expert, with or without other
evidence."
The decision in Murari Lal [(1997) 7 SCC
110 : 1997 SCC (Cri) 992] was followed in
Lalit Popli v. Canara Bank [(2003) 3 SCC
583 : 2003 SCC (L&S) 353] .
16. While there is no doubt that court can
compare the disputed handwriting
/signature/ finger impression with the
admitted handwriting / signature / finger
impression, such comparison by court
without the assistance of any expert, has
always been considered to be hazardous and
risky. When it is said that there is no bar to a
court to compare the disputed finger
impression with the admitted finger
impression, it goes without saying that it can
record an opinion or finding on such
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comparison, only after an analysis of the
characteristics of the admitted finger
impression and after verifying whether the
same characteristics are found in the
disputed finger impression. The comparison
of the two thumb impressions cannot be
casual or by a mere glance. Further, a
finding in the judgment that there appeared
to be no marked differences between the
admitted thumb impression and disputed
thumb impression, without anything more,
cannot be accepted as a valid finding that
the disputed signature is of the person who
has put the admitted thumb impression.
Where the court finds that the disputed
finger impression and admitted thumb
impression are clear and where the court is
in a position to identify the characteristics of
fingerprints, the court may record a finding
on comparison, even in the absence of an
expert's opinion. But where the disputed
thumb impression is smudgy, vague or very
light, the court should not hazard a guess by
a casual perusal."
7. Relying on the above judgment, he submits that the learned
court has wrongly passed the said order and the ratio laid down by the
Hon'ble Supreme Court in the above case is in favour of the petitioners,
as such, the impugned order may kindly be set aside.
8. Per contra, Mr. Shailesh Kumar Singh, learned counsel
appearing for the O.P. No. 1 has opposed the prayer and submits that
the learned court has rightly passed the said order. He submits that the
signature in question is not in dispute and Exhibit-5 is the Passport and
Exhibit-2 is the signature in the Will itself. He further submits that the
intention of O.P. No. 1 is very clear, in view of her rejoinder filed
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before the learned court disclosing everything, which suggests that the
genuineness of the signature is there. On these grounds, he submits that
the learned court has rightly passed the order.
9. It is an admitted position that the Original Suit (Probate)
No. 02 of 2018 was instituted for probate of the Will, which was
instituted by the O.P. No. 1, in which, the petitioners herein and
proforma O.P. No. 2 have appeared and during the pendency of the said
probate case, a petition has been filed for comparing of the signature of
the Will of Haldhar Prasad Choubey, wherein the learned court has
found that the signature on Exhibits-2 and 5 are similar, in view of that
he has not sent the same to the expert.
10. Admittedly on the passport, the signature is scanned and the
Will is of later on period and in view of that the Will by way of
mechanical process does not show the accuracy on the ground of
signature, defected photocopy, which is found to be passport herein as
Exhibit-5 and there is every possibility of change of signature due to
passage of time and there is every possibility to sign on the document in
disguise so as to obtain a favourable opinion from handwriting expert.
What is required as per law is that any authentic contemporaneous
document containing signature of the parties to be reflected along with
disputed signature for comparison. Coming to the facts of the present
case, no contemporaneous signature or document has been produced
before the learned court, for such exercise and further the learned court
is competent to look into and find out the signature whether it is similar
or not, that has been done by the learned court and even it is allowed, it
is not going to help to the trial Court in effectively adjudicating the lis
more particularly in the light of the admitted legal position that expert's
opinion evidence as to handwriting or signatures can rarely, if ever, take
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the place of substantive evidence.
11. Section 45 of the Evidence Act enable the Court to obtain
the opinion of an expert on various aspects, including the one relating
to the comparison of disputed signatures. Further an expert would be in
a position to render his opinion, only when the original of the document
containing the disputed signature is forwarded to him. Further, there
can be effective comparison and verification of the signatures, if only
another document containing the undisputed signatures of the
contemporary period are made available to the expert. These analysis
would become possible only vis-a-vis an original signature: and the
signature mark: on a xerox copy of a document can never constitute the
basis.
12. In light of the above, the court finds that in absence of any
contemporaneous signature, the learned court has rightly passed the
order. As such, this petition is dismissed.
13. However, the observation made therein of genuineness of
the Will, will not prejudice the case of either of the partiers, as in the
Will, the genuineness of the Will is one of the issue, which can be
decided only by way of evidence to be led by both the sides and in view
of the above, the finding recorded in the impugned order will not
prejudice the case of either of the parties and further it is open for the
parties to prove their case before the learned court in accordance with
law.
(Sanjay Kumar Dwivedi, J.)
Amitesh/-
[A.F.R.]
