Suit – Expert Evidence – Evaluation of – Appellant filed suit for specific performance in respect of the agreement of sale pertaining to the suit schedule house – As per the appellant, after execution of the agreement of sale in his favour, the first defendantfirst respondent (now deceased) did not execute the sale deed and rather along with his brother sold their respective shares to the second defendant-second respondent – Trial Court decreed the suit – Judgment reversed by the High Court – On appeal, held: Evidence of PWs-2, 3 (attesting witnesses) fully support the case of the appellant – High Court not justified in rejecting their evidence on mere assumptions and wrong reasons – It mainly relied upon the opinion of the handwriting expert, who opined that the signature of the first respondent on the agreement of sale, Ext.A-1 did not tally with his admitted signatures – Court must be cautious while evaluating expert evidence, which is a weak type of evidence and not substantive in nature – Mere expert evidence as to a fact is not regarded as conclusive proof of it and the Court may seek independent and reliable corroboration in the facts of a given case – Evidence of DW-3 (brother of the first respondent) belies the allegation of the first respondent that the signature found on Ext.A1 is forged – DW-3 admitted that he could identify the signature of his elder brother, the first respondent– Merely because appellant’s signature was not present on Ext.A-1, this would not ipso facto nullify the agreement altogether – Ext.A-2, the receipt evidencing the payment of earnest money in pursuance of Ext.A-1, bears the signature of the first respondent on the revenue stamps affixed thereon– No material brought on record to show that he did not receive the amount under Ext.A-2– Plaintiff was ready and willing to perform his part of the contract – Judgment of the High Court set aside, while that of Trial Court stands restored– Evidence Act, 1872 – ss.45, 47– Specific Relief Act, 1963– s.16(c) – Limitation Act, 1963 – Art.54 of the Schedule– Code of Civil Procedure, 1908– Appendix A, Forms 47 & 48.
Evidence Act, 1872 – Explanation to s.47 – Opinion of person acquainted with the handwriting of another – Relevance of – Discussed.
Specific Relief Act, 1963 – s.16(c) – Held: Filing of suit for specific performance of an agreement of sale is governed by s.16(c) r/w Art. 54 of the Schedule of the 1963 Act – Forms 47 & 48 of Appendix A of CPC prescribe the format of the plaint for such a suit – Thus, a plaint which seeks the relief of specific performance of an agreement/contract must comply with all these requirements – Limitation Act, 1963 – Art.54 of the Schedule – Code of Civil Procedure, 1908 – Appendix A, Forms 47 & 48.
Allowing the appeals, the Court
HELD: 1.1 The High Court mainly relied upon the opinion evidence of DW-2, the handwriting expert, who opined that the signature of the first defendant on the agreement of sale Ext.A-1 did not tally with his admitted signatures. The Court must be cautious while evaluating expert evidence, which is a weak type of evidence and not substantive in nature. It may not be safe to solely rely upon such evidence, and the Court may seek independent and reliable corroboration in the facts of a given case. Generally, mere expert evidence as to a fact is not regarded as conclusive proof of it. Ext. A-1 is the agreement of sale entered into by the plaintiff and the first defendant. Ext. A-2 is the receipt evidencing the payment of earnest money of Rs. 61,200/- in pursuance of this agreement of sale. The receipt bears the signature of the first defendant on the revenue stamps affixed thereon. Ext. A-2 was not sent for obtaining expert opinion. No reliable material was brought on record that the first defendant has not received the amount under Ext. A-2. In the absence of any challenge to the first defendant’s signature on Ext. A-2, and in the absence of any reliable material produced by the first defendant to deny the receipt of such earnest money, the High Court should have relied upon this receipt. In fact, the High Court has not considered Ext. A-2 in its entire judgment. As a matter of fact, Ext. A-1 and Ext. A-2 go hand in hand, and Ext. A-2 should not have been ignored by the High Court. Merely because the plaintiff’s signature was not present on the agreement of sale, this would not ipso facto nullify the agreement altogether. The agreement was signed by the first defendant and clearly reveals that he had agreed to sell the property to the plaintiff for a due consideration of Rs. 1,20,000/-. This agreement was followed by Ext. A-2, which shows the payment and receipt of the earnest money. This receipt bears the signature of the plaintiff on revenue stamps. Ext. A-1 and Ext. A-2 are part of the same transaction. The evidence of DW-3 (the brother of the first defendant) belies the allegation of the first defendant that the signature found on Ext. A-1 is forged. DW-3 specifically admitted during his crossexamination that he could identify the signature of the first defendant, who is his elder brother. He has further admitted that Ext. A-1 and Ext. B-1 bears the signature of the first defendant. A partition had taken place between the first defendant and DW3 in 1980, and such partition was effected through Ext. B-1, an unregistered partition deed. Crucially, the first defendant has also admitted his signature on Ext. B-1 in his cross-examination. Thus, it is clear that such admitted signature and the disputed signature of the first defendant have been identified by his brother as those of the first defendant himself. The opinion of a handwriting expert is a relevant fact under Section 45 of the Evidence Act. Under Section 47 of the Evidence Act, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed is also a relevant fact. Section
47 of the Evidence Act is concerned with the relevance of the opinion of a person who is acquainted with the handwriting of another person. DW-3 lived and resided with the first defendant in the same house for over three decades. DW-3 identified the first defendant’s signature on Ext. B-1 (the partition deed), which has been admitted by the first defendant himself. In light of this, and given that DW-3 came in to support the case of his brother, the first defendant before the Court, it can be inferred that their relations were cordial even after partition and that DW-3 would have seen the latter write on multiple occasions in normal course of family affair. Thus, it is clear that, he was acquainted with the handwriting of the first defendant in terms of the Explanation to Section 47 of the Evidence Act. This makes his opinion as to the disputed handwriting a relevant fact under Section 47. The weight to be accorded to such an opinion depends on the extent of familiarity shown by the witness with the disputed handwriting. This, in turn, depends on the frequency with which the witness has had occasion to notice and observe the handwriting, his own power of observation, and how recent such observations were. The testimony of DW-3 may safely be relied upon, and must be accorded similar, if not greater, weight than the expert evidence adduced by the defendants to advance their case. The first defendant neither challenged DW-3’s admission nor his acquaintance with the disputed handwriting, although it was open for him to do so by way of re-examination. [Paras 7, 8, 12-14][746A-C; 747-D-H; 748-A-D, G-H; 749-A-F]
1.2 The disputed signature of the first defendant on Ext. A1 is genuine. Moreover, keeping in mind the principle that expert evidence should not be given precedence over substantive evidence, the High Court was not justified in giving precedence to the opinion of the expert (DW-2) and solely relying upon his testimony to set aside the judgment and decree of the Trial Court. There is another reason why we are not inclined to place reliance on the opinion of the expert DW-2. From a perusal of his report Ext. B-2, it is evident that barring the signature on a written statement in a prior suit, all other admitted signatures of the first defendant are of a period subsequent to the filing of the plaint (i.e. on the vakalatnama and the written statement filed in this suit itself). These admitted signatures taken subsequent to the filing of the suit could not have been used as a valid basis of comparison, and their use for this purpose casts serious doubt on the reliability of the entire report Ext. B-2. Thus, the report was liable to be discarded on this ground alone, and was wrongly relied upon by the High Court. The filing of a suit for specific performance of an agreement of sale is governed by Section 16(c) of the Specific Relief Act, 1963, read with Article 54 of the Schedule of the Limitation Act, 1963. In addition to this, Forms
47 and 48 of Appendix A of the Code of Civil Procedure, 1908 prescribe the format of the plaint for such a suit. Thus, a plaint which seeks the relief of specific performance of an agreement/contract must comply with all these requirements. All the formalities which are to be pleaded and proved by the plaintiff for getting a decree of specific performance have been fulfilled. The plaintiff had sufficient money to pay the balance consideration to the first defendant and was ready and willing to perform his part of the contract. The judgment and decree passed by the Trial Court stands restored. [Paras 15-18][749-G-H; 750-C-H; 751A-B]
Shashi Kumar Banerjee v. Subodh Kumar Banerjee AIR 1964 SC 529 – followed.
Ram Chandra and Ram Bharosey v. State of Uttar Pradesh, AIR 1957 SC 381; Magan Bihari Lal v. State of Punjab, (1977) 2 SCC 210 : [1977] 2 SCR 1007; S. Gopal Reddy v. State of Andhra Pradesh (1996) 4 SCC
596 : [1996] 3 Suppl. SCR 439; Murari Lal v. State of Madhya Pradesh (1980) 1 SCC 704 : [1980] 2 SCR 249; Alamgir v. State (NCT, Delhi) (2003) 1 SCC 21 : [2002] 4 Suppl. SCR 88 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.