Karnataka High Court

Shri Papalal Son Of Laxman Prasad Tiwary vs Shri Budhiprasad Son Of Laxman Prasad ... on 18 September, 2025

Author: Shivashankar Amarannavar

Bench: Shivashankar Amarannavar

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                                                       RSA No. 200372 of 2014


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                             IN THE HIGH COURT OF KARNATAKA,

                                    KALABURAGI BENCH

                        DATED THIS THE 18TH DAY OF SEPTEMBER, 2025

                                          BEFORE

                   THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR

                     REGULAR SECOND APPEAL NO. 200372 OF 2014 (INJ)

                   BETWEEN:

                       SHRI PAPALAL
                       S/O LAXMAN PRASAD TIWARY,
                       AGE : 59 YEARS,
                       OCC: LIGAL PRACTITIONER,
                       R/AT: H.NO.9-198/1/A, KATAGARPURA,
                       SHAHABAZAAR, GULBARGA - 585 102.
                                                                 ...APPELLANT

                   (BY SRI K.M.GHATE, ADVOCATE)

                   AND:

Digitally signed       SHRI BUDHIPRASAD
by SHIVALEELA          S/O LAXMAN PRASAD TIWARY,
DATTATRAYA             AGE : 57 YEARS,
UDAGI
Location: HIGH         R/AT: KHATGARPURA, SHAHABAZAAR,
COURT OF               GULBARGA - 585 102.
KARNATAKA                                                      ...RESPONDENT

                   (BY SRI AJAYKUMAR A.K., ADVOCATE)

                        THIS RSA IS FILED UNDER SECTION 100 AND ORDER 42
                   OF THE CPC, PRAYING TO SET ASIDE THE JUDGMENT AND
                   DECREE DATED 15.09.2014 IN R.A.NO.57/2011 ON THE FILE
                   OF THE LEARNED III ADDITIONAL DISTRICT AND SESSIONS
                   JUDGE, GULBARGA AND FURTHER ALLOW THIS APPEAL BY
                   CONFIRMING THE JUDGMENT AND DECREE PASSED IN
                   O.S.NO.313/2005 PASSED BY THE PRL. CIVIL JUDGE (SR.DN)
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                                             RSA No. 200372 of 2014


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GULBARGA DATED 03.03.2011 WITH COSTS AND GRANT SUCH
OTHER RELIEF / RELIEFS AS THIS HON'BLE COURT DEEMS FIT
TO GRANT IN THE FACTS AND CIRCUMSTANCES OF THE CASE
IN THE INTEREST OF JUSTICE AND EQUITY.

    THIS RSA, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:        HON'BLE MR. JUSTICE SHIVASHANKAR
              AMARANNAVAR


                          ORAL JUDGMENT

1. This appeal is filed by the appellant/defendant

praying to set aside the Judgment and decree dated

15.09.2024 passed in R.A.No.57/2011 by the III Additional

District and Sessions Judge, Gulbarga (for short 'the

appellate Court') and confirm the Judgment and decree

dated 03.03.2011 passed in O.S.No.313/2005 by the

Principal Civil Judge (Sr. Dn.), Gulbarga (for short 'the trial

Court').

2. The respondent/plaintiff had filed a suit in

O.S.No.313/2005 against the appellant/defendant seeking

relief of specific performance of sale agreement dated

08.12.2002.

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3. The case of the plaintiff as narrated in the plaint

is as under:

(a) The plaintiff and defendant are brothers. They

started their business in the name and style of M/s. Jai

Bhavani Wine Center.

(b) His brother defendant expressed his willingness

to discontinue the business with the plaintiff on the plea that

he does not want to carry on the business as he want to

become an advocate. The suit shop was purchased in the

name of defendant through registered sale deed in the year

1985. The plaintiff is in settle possession of the suit property

prior to 2002. He is running his wine shop in the name and

style M/s Jai Bhavani Wine Center and plaintiff's son is

partner to the said firm.

(c) The defendant agreed to sell the suit property to

the plaintiff for a sum of Rs.1,10,000/- on 8-12-2002 at

Gulbarga. He has executed the agreement of sale on stamp

paper. The copy of the suit property was mutated in the

name of the plaintiff, the plaintiff has paid all the municipal

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taxes and got license to run the wine shop in the suit

premises. The defendant received the money of Rs.60,000/-

and delivered possession of the said shop to the plaintiff

even prior to the execution of agreement of sale. The

plaintiff requested the defendant to receive the balance

amount of Rs.50,000/- and executed a registered sale deed

in his favour.

(d) The plaintiff approached the defendant to receive

the remaining balance and to execute the sale deed in his

favour but the defendant postponed in one or the other

pretext. The defendant refused to execute the sale deed on

the plea of rise in the market value of the suit property and

demanded another Rs.1 lakh from the plaintiff, the plaintiff

did not agree to this proposal. The plaintiff is ready and

willing to perform his part of contract and even till this date

he is ready to perform his part of contract. The plaintiff

approached the Deputy Commissioner for stamps under Sec.

31 of the Karnataka Stamp Act. The Deputy commissioner

allowed the plaintiff to pay deficit stamp duty of Rs.13,915/-

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and the plaintiff has paid the challan at S.B.H Super Market

Branch, Gulbarga on 21-11-2005.

(e) The defendant, one Ashok Lakhe and Beersing

attempted to lock the suit shop. Therefore the plaintiff

pressed to direct the defendant to execute the registered

sale deed in his favour in respect of the suit property and to

restrain the plaintiff from interfering with peaceful possession

and enjoyment over the suit property.

4. The defendant has filed written statement,

wherein, it is contended as under:

(a) The defendant has filed his written statement, the

relationship between the plaintiff and defendant as brothers

is admitted. The plaintiff and defendant started business in

the name and style M/s. Jai Bhavani Wine Center in the suit

property in the month of December 1982 is false. The

plaintiff and defendant have not started partnership firm and

the defendant expressed to discontinue with the business on

the pleas that he want to become an advocate is also denied.

The defendant admits that he has purchased the suit

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property in the year 1985 under registered sale deed.

According to the defendant it self acquired property, he has

given the suit property on rental basis to M/s Jai Bhavani

Wine Center and the firm was closed in the year 2003-04

and he later gave the suit premises to one Chanbasappa

Samni for the wine center and he is running the wine center

by name M/s Shiv Sai Wines for a monthly rental of

Rs.5000/-.

(b) The khata is not mutated in the name of the

plaintiff, the plaintiff is not in settled possession. He is not

agreed to sell the suit property to the defendant for a sale

consideration of Rs.1,10,000/- on 8-12-2002 he has not

received earnest money of Rs.60,000/-. The suit value is

more than Rs.9 lakhs, the court fee paid is insufficient.

created the agreement and after the knowledge the

defendant approached the plaintiff and directed him to

destroy the alleged agreement and he has issued notice

through his advocate, notice is served on the plaintiff and he

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lodged a complaint before the Chowk Polic station, Gulbarga

on 28-4-2005 and on 12-5-2005 for taking legal action for

breach of trust and cheating.

(d) On the strength of the bogus agreement for sale

the plaintiff in collusion with Municipal Corporator and

employees got entered his name illegally in the Corporation

records. The defendant learnt about the change in the

Municipal Records, he got it deleted by approaching the Asst.

Commissioner and his name is re-entered in all municipal

records.

(e) The defendant has not received any sale

consideration amount in the presence of witnesses, he has

not signed suit agreement on 18-12-2002. The signature of

the defendant is bogus. Therefore, the possession of the suit

shop is not delivered by the defendant to the plaintiff prior to

the agreement of sale.

(f) The plaintiff has not approached the defendant to

receive the remaining sale consideration of Rs.50,000/- and

to execute the registered sale deed. The plaintiff has not

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performed his part of contract and he is not ready and willing

to perform his part of contract.

(g) The defendant is not aware that the plaintiff

approached the Deputy Commissioner for payment of deficit

stamp duty on the suit agreement and he has paid

Rs.13,915/- by challan at S.B.H, Super Market Branch,

Gulbarga. The plaintiff has not paid duty and penalty on the

suit agreement. The suit agreement is not admissible in

evidence and the suit is not maintainable.

(h) The defendant is the absolute owner in

possession of the suit property and he has purchased the

suit property on 19-8-1985 from his owner Chanderakanth

Marthandrao for a value sale consideration. The defendant

had share of 40% in M/s Jai Bhavani Wine Center, the

plaintiff share is 30%. Gurunath Prasad Tiwari is having 30%

in the said business. The third party Gurunath Tiwari died in

the year 1993. The second partnership deed was executed

on 19-12-1993. The defendant had rented the suit premises

to M/s Jai Bhavani Wine Center in the year 1984-85 and the

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rent was increased from time to time up to Rs.2000/- per

month up to 2000/- to 3000/-. The plaintiff quarreled with

the defendant and he has not paid rent regularly. The

plaintiff quarreled with the defendant and has assaulted his

family members and caused damage to his house. He has

filed complaint before the police.

(i) The plaintiff is not in possession of the suit

property at any point of time in his individual capacity. The

plaintiff in collusion with the Exercise Dept. without his

knowledge and consent transferred the license in favour of

Channabasappa of M/s Shiv Sai wines for consideration

amount of Rs.10,50,000/- The defendant filed objection

petition and the appeal before the concerned Excise

Commissioner at Bangalore. Both the matters are pending.

The plaintiff was not in possession even before filing of the

suit. The suit agreement is created to grab the valuable

property worth Rs.9 lakhs. The plaintiff removed the shop

and he has taken the original registered sale deed in the

shop and now filed same to make believe that the suit

agreement was executed in his favour. The suit agreement is

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not executed by the defendant. The suit is baseless and filed

to cause harassment to the defendant. Therefore he prays to

dismiss the suit with compensatory cost of Rs.5000/-.

5. On the basis of the said pleadings, the trial Court

has framed the following issues:

1. Whether the plaintiff proves that, on 8-12-

2002 the deft. was agreed to sell the suit property for the consideration of Rs.1,10,000/- in part performance of the contract, he has received the part consideration of Rs.60000/- on executing the agreement of sale & had agreed to receive the remaining consideration at the time of execution of sale deed?

2. Whether the plaintiff proves that, even prior to the suit consideration he was in possession of the suit property and continued & in pursuance of the part performance?

3. Whether the plaintiff proves that, he is ever ready & willing to perform his part of contract & deft. Was refused to perform his part of contract?

4. Whether the deft. proves that, the plaintiff had created the suit agreement of sale?

5. Whether the plaintiff further proves that, few days prior to the filing of the instant suit the

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deft. was tried to interfere to his lawful possession over the suit property?

6. Whether the plaintiff proves that, he is entitled for the relief of specific performance of contract as sought?

7. Whether the plaintiff further proves that, he is entitled for the relief of injunction?

8. Whether the deft. proves that, the present suit is false and vexatious as such he is entitled for the cost of & compensatory cost of Rs.5000/-?

9. What decree or order?

6. The plaintiff has examined himself as P.W.1 and

got examined one witness as P.W.2 and got marked Ex.P.1

to Ex.P.14. The defendant has examined as D.W.2 and got

examined three witnesses as D.W.1, D.W.3 and D.W.4 and

got marked Ex.D.1 to Ex.D.75. The trial Court after hearing

the arguments and appreciating the material evidence on

record, has answered issue Nos.1 to 3, and 5 to 7 in the

negative, issue No.4 in the affirmative and issue No.8 partly

in the affirmative and dismissed the suit of the plaintiff.

Challenging the said Judgment, the plaintiff has filed

R.A.No.57/2011 before the appellate Court. The first

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appellate Court, after re-appreciating the material evidence

on record, has formulated the following points for

consideration:

1. Whether the appellant proves that the Judgment and decree passed by the Lower court is capricious illegal and against the facts and evidence on record and thereby interference of this court is required?

2. Whether the appellant proves that the evidence with regard to the opinion of the hand writing expert is not conclusive proof to consider the case of the respondent before the trial court and thereby inter reference of this court is required to set aside the same ?

3. Whether I A filed by the plaintiff/appellant U/o 41 rule 27 Code of Civil Procedure can be allowed?

4. What order?

7. The first appellate Court after hearing the

arguments and re-appreciating the material evidence on

record, has answered point Nos.1 to 3 in the affirmative and

allowed the appeal; set aside the Judgment of the trial Court

and decreed the suit. Aggrieved by the said Judgment of the

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first appellate Court, the defendant has filed the present

second appeal.

8. The appeal came to be admitted to consider the

following substantial questions of law:

1. Whether the First Appellate Court has committed any serious illegal error in disbelieving the expert evidence and substituting its own views to the view of the expert without obtaining a third opinion by an independent expert?

2. Whether the First Appellate Court has committed any serious error in holding that the appellant has proved the execution of the agreement against the respondent and committed an error in decreeing the suit of the plaintiff?

9. Heard the arguments of the learned counsel for

the appellant and the learned for the respondent.

10. Learned counsel for the appellant would contend

that, the appellant/defendant has disputed the sale

agreement - Ex.P.1 and contended that, it is forged and

fabricated. The Handwriting Expert has been appointed as a

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Court Commissioner to examine the said sale agreement to

compare the disputed signatures of the defendant with the

admitted signatures contained in it. The Court Commissioner

- Handwriting Expert - D.W.1 has examined the admitted

and the disputed signatures of the defendant and gave

report - Ex.D.1. In the said report, the Expert - D.W.1 has

opined that, 'the disputed signatures are not made by the

person who made the admitted signatures.' The first

appellate Court disbelieved the said evidence of D.W.1 -

Handwriting Expert and her Report-Ex.D.1 on the ground

that, the said D.W.1 - Handwriting Expert has no educational

qualification and discarded the report on that ground and

taken the task of comparing the admitted and disputed

signatures. He further contended that, if the appellate Court

has disbelieved the evidence of D.W.1, it ought to have

appointed another Handwriting Expert. The plaintiff had not

filed any objections to the said Expert Report - Ex.D.1.

Learned counsel for the appellant placing reliance on the

decision of the Hon'ble Apex Court in the case of

P.Aswathamma and others Vs. Hotel Sathyaprakash,

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Bangalore, reported in (2001) 2 KarLJ 367, would

contend that, it is the experience of the person which has to

be taken into consideration, but not the qualification. He

placing reliance on the decision of Hon'ble Apex Court in the

case of State (Delhi Administration) Vs. Pali Ram,

reported in AIR 1979 SC 14(1), would contend that, the

Court cannot take the task of comparing the disputed

signatures with the admitted signatures. He placing reliance

on the decision of Hon'ble Apex Court in the case of

Nallabothu Purnaiah Vs. Garre Mallikarjuna Rao

(Died), and others, reported in AIR 2003 Andra Pradesh

201, would contend that, the Court cannot doubt the

evidence of the Expert opinion on the ground that, he/she is

not a qualified expert and there was no academic course

prescribed by any Alma Matter in the country, under which

one is expected to obtain a degree or diploma for becoming

an expert in the science of identification of handwriting and

signatures. He further contended that, there was a complaint

filed by the defendant against the plaintiff and his son, the

copy of which is marked at Ex.P.35 and it is during the

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month of September, 2002, i.e. prior to the sale agreement

and it shall show the relationship between plaintiff and

defendant which was not cordial and therefore, there was no

question of defendant executing the sale agreement in

favour of the plaintiff. The first appellate Court ought to have

considered the said aspect along with expert report to come

to the conclusion that, the sale agreement has been created

and the signatures of the defendant have been forged. With

this, he prayed to allow the appeal and restore the decree

passed by the trial Court.

11. Learned counsel for the respondent would

contend that, the possession of the suit property has been

delivered to the plaintiff prior to the sale agreement and the

same is also mentioned in the recitals of Ex.P.1-sale

agreement. The admitted signatures are contained in Ex.P.8

and Ex.P.9 - sale deed and map dated 19.08.1985 and the

disputed signatures are contained in sale agreement - Ex.P.1

dated 08.12.2002 and there is a gap of 17 years in between

execution of aforesaid two documents. It is natural that,

there would be natural variations in the signatures as there

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is a time gap of 17 years. The Handwriting Expert - D.W.1

is not having any qualification and the same can be seen in

the letter head of her report - Ex.D.1. Considering the same

and also the examination of D.W.1, the first appellate Court

has rightly rejected Ex.D.1 - Expert Report and compared

the signatures and opined that, there is a natural variation.

P.W.2 is one of the attesting witnesses and his evidence also

establishes the due execution of the sale agreement. D.W.3

and D.W.4 who are examined through that Ex.P.1 - sale

agreement is forged or not are not having personal

knowledge of execution of the sale agreement and their

evidence is based on the say of the defendant. The Court has

power under Section 73 of the Indian Evidence Act, to

compare the disputed signatures with that of admitted

signatures and the said power has been exercised by the

appellate Court. The defendant has not produced the postal

acknowledgment card having served the legal notice dated

04.08.2004 to the plaintiff, the copy of which is at Ex.D.38.

12. Learned counsel for the respondent placing

reliance on the decision of the Hon'ble Apex Court in the case

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of S.P.S.Rathore Vs. C.B.I., and another, reported in AIR

2016 SC 4486 has contended that, the opinion of

Handwriting Expert even though relevant under Section 45 of

the Indian Evidence Act, but it is not conclusive. With this he

prayed for dismissal of the appeal.

13. Having heard the learned counsels, this Court has

perused the impugned Judgment and the trial Court records.

14. The plaintiff and defendant are brothers. The

defendant is the owner of the suit property having purchased

the same, under sale deed-Ex.P.8 in the year 1985. It is the

case of the plaintiff that, defendant-owner of the suit

property has agreed to sell it to the plaintiff and executed

the sale agreement-Ex.P.1 on 08.12.2002 and prior to that

he had handed over the possession of the suit schedule

property to the plaintiff. It is the case of the plaintiff that,

the sale consideration is Rs.1,10,000/- and plaintiff had paid

Rs.60,000/- as advance on the date of the sale agreement.

The suit property is a shop premises. The suit property was

standing in the name of defendant in the municipal records.

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It is the case of the plaintiff that, he and his son were

partners of M/s. Jai Bhavani Wine Center and were running

the business of it in the suit schedule property. The

defendant contended that, he had given the suit property on

rental basis to M/s. Jai Bhavani Wine Center and the firm

was closed in the year 2003-2004 and later he gave suit

premises to one Channabasappa Somani for the purpose of

wine center and he is running wine center by name M/s. Shiv

Sai Wines on monthly rental of Rs.5,000/-.

15. The plaintiff was a tenant in the suit schedule

property under defendant as on the date of the sale

agreement - Ex.P.1 dated 08.12.2002. The defendant has

specifically denied regarding executing the sale agreement -

Ex.P.1 and receiving any advance amount. Having also

denied his signature on sale agreement -

Ex.P.1 and contended that, his signatures on it are forged.

16. There was a quarrel between the plaintiff and

defendant in the year 2002. P.W.1 in his cross-examination

at paragraph No.8 has admitted that, there were quarrels

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between him and defendant. He also admitted that, on

17.02.2002, the defendant has performed marriage of his

son and he has not attended the said marriage and stated

that, he was not invited for the said marriage and he does

not know the reason why he has not been invited. P.W.1 has

also admitted that, he came to know the marriage of the

daughter of the defendant after it has been solemnized and

subsequent to the marriage. P.W.1 in his cross-examination

at paragraph No.9 had admitted that, the defendant has filed

a police complaint against his son for the incident dated

22.09.2002 even though he has denied the said incident and

contended that, it is filed to trouble them. P.W.1 in his cross-

examination at paragraph No.26 has also admitted that,

defendant has filed a complaint to police against him.

Ex.D.35 is a copy of the complaint dated 23.09.2002 given

by the plaintiff against defendant, his son Deepak and his

wife and daughter of defendant regarding the incident dated

22.09.2002. The said complaint is given to the

Superintendent of Police, Gulbarga. In it, it is stated that,

defendant has filed complaint before the Police Sub-

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Inspector of Chowk Police Station, Gulbarga on 22.09.2002.

The defendant has narrated the incident and sought police

protection. In the said Ex.D.35, it is stated that, the

defendant and his son opened the lock of the toilet and not

to make objections for the use of the enjoyment of the same

by the plaintiff and his family members. The defendant, his

wife and children caused damage to the toilet and destroyed

the door and drainage and they were threatening to take life

of the defendant and abused him in filthy language. The

photos and negatives of them recording the damage of the

door and toilet are at Ex.D.36 and Ex.D.37. Even though the

plaintiff (P.W.1) in his cross-examination has denied the

incident, but has admitted regarding the defendant filing of

the complaint against him and his son to the police. The said

alleged incident and the filing of the complaint by the

defendant against the plaintiff and his family members

becomes relevant because it had taken place prior to two

and half months of executing the sale agreement-Ex.P.1.

17. The plaintiff was in possession of the suit

schedule property as a tenant as on the date of the sale

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agreement - Ex.P.1 and there were quarrels between the

plaintiff and defendant prior to the sale agreement. The said

aspect itself shows that, the terms between the plaintiff and

defendant are not cordial. The said aspect also becomes

relevant in view of the defendant denying execution of the

sale agreement and alleging that, the signatures on the sale

agreement are forged one.

18. The plaintiff (P.W.1) in his cross-examination has

also admitted having transferred the licence of M/s. Jai

Bhavani Wine Center, to one Channabasappa Somani in the

year 2003-2004 for Rs.10,50,000/- and he has not shared

the said amount among the partners including the defendant

and he having used the said amount for payment of debt of

M/s. Jai Bhavani Wine Center.

19. The plaintiff (P.W.1) in his cross-examination has

also admitted that, he was running a business in the name

and style of 'M/s. Jai Bhavani Wine Center', in the suit

schedule property from the year 1985 by taking the said

premises on rental basis from the defendant. He stated that,

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there were three partners and he was sharing profit among

the said three partners every year. Ex.D.40 - Partnership

Deed dated 13.12.1982 indicates that, the plaintiff,

defendant and son of defendant by name Gurunath Prasad

were partners of M/s. Jai Bhavani Wine Center and they have

invested Rs.10,000/- each, having profit at the rate of 40%,

30% and 30%, respectively. Ex.P.41 - copy of Partnership

Deed dated 19.12.1993 indicates that, the defendant,

plaintiff and one Subhasprasad S/o. Ramprasad Pande were

partners of M/s. Jai Bhavani Wine Center.

20. Considering the fact that, there was a dispute

among the plaintiff, defendant and their family members

regarding their business, the relationship between the

plaintiff and defendant became strained prior to sale

agreement - Ex.P.1.

21. P.W.1 has stated regarding defendant executing

sale agreement and receiving advance amount of

Rs.60,000/-. P.W.2 stated that, he is a attesting witness to

sale agreement and the sale agreement being executed by

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the defendant in his presence and defendant having received

advance amount of Rs.60,000/- out of sale consideration of

Rs.1,10,000/-. Handwriting Expert has been appointed as a

Court Commissioner to compare the disputed signatures

contained in Ex.P.1 - Sale agreement and Ex.P.2 - receipt

with admitted signatures of the defendant on Ex.P.9 which is

at Ex.P.9(b) and on Ex.P.8 - original sale deed. D.W.1 is the

said expert appointed by the Court. D.W.1 gave report as

per Ex.D.1. D.W.1 has opined that, the disputed signatures

are not made by the person who made the admitted

signatures. D.W.1 has stated reasons for said opinion in

Ex.D.1. D.W.1, reiterated the same in her evidence. The trial

Court relying on the said evidence of D.W.1 and report -

Ex.D.1 has held that, the signature on Ex.P.1 - sale

agreement are forged, and dismissed the suit. The first

appellate Court noting that, D.W.1 is not having qualification

for examining the documents and she is not a Handwriting

and Fingerprint Expert, discarded the report - Ex.D.1 on that

ground and itself has took the task of comparing the

admitted and disputed signatures.

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22. The Hon'ble Andhra Pradesh High Court in the

case of Nallabothu Purnaiah (supra), has observed that,

there is no academic Course prescribed by any Alma Matter

in the country, under which one is expected to obtain a

degree or diploma for becoming an expert in the science of

identification of handwriting and signatures. One becomes an

expert in the field of identification of handwriting and

signatures by training and experience and constant

observations. It is not a developed science, where there can

be a regular Course or training to be undergone in any

Institute and given a degree or diploma in regard thereto.

23. The co-ordinate Bench of this Court in the case of

P.Aswathamma and others (supra), has held as under:

"7. In the case of State of Maharashtra v Sukhdeo Singh and Another, in paragraph 30, their Lordships observed:

"A handwriting expert is a competent witness whose opinion evidence is recognised as relevant under the provisions of the Evidence Act and has not been equated to the class of evidence of an accomplice. It would, therefore, not be fair to approach the opinion

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evidence with suspicion but the correct approach would be to weigh the reasons on which it is based. The quality of his opinion would depend on the soundness of the reasons on which it is founded. But the Court cannot afford to overlook the fact that the science of identification of handwriting is an imperfect and frail one as compared to the science of identification of fingerprints; Courts have, therefore, been wary in placing implicit reliance on such opinion evidence and have looked for corroboration but that is not to say that it is a rule of prudence of general application regardless of the circumstances of the case and the quality of expert evidence. No hard and fast rule can be laid down in this behalf but the Court has to decide in each case on its own merits what weight it should attach to the opinion of the expert".

In paragraph 32, their Lordships observed:

"There is no doubt, though Section 73 empowers the Court to see for itself whether on a comparison of the two sets of writing/signature, it can safely be concluded with the assistance of the expert opinion evidence that the disputed writings are in the handwriting of the accused alleged".

(emphasis supplied)

This and the above decisions clearly show that the Court by itself cannot act as an expert, but it has to come to a conclusion; Whether the disputed signatures are of the persons alleged to have been signed by

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comparison with the disputed signatures with admitted signature with the assistance of the expert's evidence and not on simply its own comparison."

24. This Court relying on the decision of the Hon'ble

Apex Court, has held that, the Court by itself cannot act as

an expert, but it has to come to a conclusion; whether the

disputed signatures are of the persons alleged to have been

signed by comparison with the disputed signatures with

admitted signatures with the assistance of expert's evidence

and not on simply its own comparison.

25. The Hon'ble Apex Court in the case of State

(Delhi Administration) Vs. Pali Ram (supra), has

observed as under:

"24. A sample writing taken by the Court under the second paragraph of S.73, is, in substance and reality, the same thing as "admitted writing" within the purview of the first paragraph of S.73, also. The first paragraph of the Section, as already seen, provides for comparison of signature, writing, etc., purporting to have been written by a person with others admitted or proved to the satisfaction of the Court to have been written by the same person. But it does not specifically say by whom such comparison may be made. Construed

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in the light of the English Law on the subject, which is the legislative source of this provision, it is clear that such comparison may be made by a handwriting expert (Section 45) or by one familiar with the handwriting of the person concerned (Section 47) or by the Court. The two mutually exclusive. They are complementary to each other.

25. Section 73 is therefore to be read as a whole, in the light of Section 45. Thus read, it is clear that a Court holding an inquiry under the Code of Criminal Procedure in respect of an offence triable by itself or by the Court of Session, does not exceed its powers under Section 73 if, in the interests 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. "

26. In the light of the above, the first appellate Court

has erred in discarding the expert's report - Ex.D.1 and

evidence of Expert-D.W.1 and taking the task of comparing

the admitted and disputed signatures. The first appellate

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Court has not considered the fact that, the relationship

between the plaintiff and defendant was strained

immediately prior to the sale agreement. It appears that, in

view of the strained relationship, the plaintiff in order to

continue in the suit property might have created the sale