Ram Prasad v. Shyam Lal Others — 1983 DIGILAW 80 (ALL)

JUDGMENT 1. This is a plaintiff's second appeal in a suit for specific performance of an agreement to sell which bears the date 17th August, 1966 and is said to have been executed by the first defendant Shyam Lal for the sale of 17 plots of agricultural land, situate in villages Amauliya, Adampur and Fakirpur, Pargana Shivpur, in the district of Varanasi. The suit was dismissed by the trial court on the finding that the agreement is a forgery and the signatures thereon purporting to be of Shyam Lal are forged. The lower appellate court not only confirmed the said finding and the decree of the trial court, it went a step further and directed the issue of a notice under section 479A(5) of the Code of Criminal Procedure, 1898, to Bhagauti Prasad Pandey (P.W. 2), Ram Prasad (P.W. 3) and Jagarnath (P.W. 4) to show cause why they should not be prosecuted for giving false evidence, and another notice under section 476A to the plaintiff Ram Prasad (P.W. 3) to show cause why he should not be prosecuted for the offence punishable under section 471 I.P.C. that is, for the offence of using a forged document as genuine in respect of two documents 7KaI which is the agreement and 25KaI which is a postal acknowledgement card. These two documents were ordered by the lower appellate court to be kept in a sealed cover, but the seals were broken open in this Court during the hearing of the second appeal. 2. The following is the plaintiff's case as set out in the plaint. 3. Defendant no. 1 having agreed to sell the land described at the foot of the plaint, he executed an agreement for selling the same to the plaintiff on 17th August, 1966. The plaintiff joined the agreement as party no. 2. The price for which defendant no. 1 agreed to sell the land was Rs. 7,125. The sum of Rs. 2000 was taken as earnest money on the day on which the agreement was executed and it was promised that the saledeed would be executed and registered in the plaintiff's favour by 30th March, 1967 on payment of Rs. 5,125 at the time of registration. The plaintiff was always ready and willing to have the saledeed executed on payment of Rs. 5,125 and will always be ready in future. It was further pleaded that defendants nos. 5,125 at the time of registration. The plaintiff was always ready and willing to have the saledeed executed on payment of Rs. 5,125 and will always be ready in future. It was further pleaded that defendants nos. 2 and 3 were fully aware of the said agreement between the plaintiff and defendant no. 1 but had a fictitious sale deed executed in their favour for an area of 4 1/2 biswas out of the land without any consideration although defendant no. I continues to be in possession of the whole land. The saledeed in their favour was illegal and had no effect on the plaintiff's right and was liable to be cancelled. It was lastly pleaded that although the plaintiff repeatedly asked the first defendant to execute the saledeed but he evaded doing so and ultimately a written notice was sent, which was personally served on him, but he did not turn up in the office of the SubRegistrar, Varanasi on 28th March, 1967, which was the date fixed for execution of the saledeed. 4. The suit was filed on 30th March, 1967. The agreement 7Ka was filed along with the plaint. The agreement provides that the first party, that is, the first defendant was in pressing need of money for payment of debts and repair.ing the house and also for domestic needs and it was impossible at that time to get the money for satisfying the needs except by selling the land described at the foot of the plaint and the contract for the sale of the same for Rs, 7.125 was finally settled with the second party, that is, the plaintiff. The first term of the agreement acknowledges receipt of Rs. 2000 as earnest money, the second, that the balance of Rs. 5,125 will be paid at the time of the execution of the saledeed, the third, that the saledeed would be executed and registered by 30th March, 1967. The rest of the terms are that if the first party (defendant no. 1) evaded doing so, the second party (plaintiff) would have the right to have it executed through court and that if the second party (plaintiff) failed to have the saledeed executed by 30th March, 1967, his earnest money would be forfeited. As already noticed, the land is situate in three villages. 1) evaded doing so, the second party (plaintiff) would have the right to have it executed through court and that if the second party (plaintiff) failed to have the saledeed executed by 30th March, 1967, his earnest money would be forfeited. As already noticed, the land is situate in three villages. The area of the land agreed to be sold was 00.26 1/2+00.28 1/2+ 00.45 3/4+00.94=1.94 3/4, 5. The first defendant denied the entire plaint case except that the land in suit was situated in the district of Varanasi. The plaint allegations were alleged to be false and baseless. It was pleaded that no agreement was executed by the first defendant and there never was any contract between him and the plaintiff for the sale of the land in suit; that he never received any earnest money from the plaintiff and the whole story that he agreed to sell the land by 30th March, 1967 for Rs. 7,125 and received Rs. 2000 as earnest money was wholly wrong and made up. The agreement dated 17th August, 1966 was totally denied as forged and fictitious. It was then pleaded that it appears that the plaintiff had somehow got made the forged signatures of the answering defendant on stamp paper and had got fictitious terms written thereon in order to usurp the valuable property for a small consideration. The sale in favour of defendants nos. 2 and 3 was said to be genuine and the value of the whole property was not less than Rs, 16,000. It was then stated that the answering defendant never needed to sell the said property for payment of debt nor did his house want any repair. . Even the witnesses Bhagauti Prasad and Jagannath were said to be litigious persons and it was said that the agreement was forged in league with them and the scribe. The plaintiff's right to relief was denied and the same time it was alleged that some other purchasers have not been impleaded and the suit was bad for misjoinder. Defendants nos. 2 and 3 took the same please and added that they were bona fide purchasers for consideration without notice of the agreement. 6. It may be here noticed that the saledeed in favour of defendants nos. 2 and 3 is paper no. 27KaI. It is dated 3rd March, 1967. Defendants nos. 2 and 3 took the same please and added that they were bona fide purchasers for consideration without notice of the agreement. 6. It may be here noticed that the saledeed in favour of defendants nos. 2 and 3 is paper no. 27KaI. It is dated 3rd March, 1967. The land sold thereby consists of two plots having an area of 00.14 3/4 and the consideration is Rs. 500. Another saledeed is paper no. 53AI in respect of a plot of land having an area of 00.51 for Rs. 1,500 which appears to have been executed by the first defendant on 26th July, 1965. That plot of land is not the subject matter of the suit. The saledeed appears to have been filed by the plaintiff with list 52C. 7. Defendant no. 4 was added under the orders of the trial court dated 12th August, 1967 and by another order passed the same day, the court held on issue no. 5, which related to the question whether the suit ts bad for nonjoinder of Sri, son of Ram Nihor, that it was not pressed. Inspite of service of summons on defendant no. 4, he, however, did not file any written statement and the suit proceeded ex parte against him. The following were the issues on which the parties went to trial: 1. Whether the defendant no. 1 had agreed to sell the plots detailed at the foot of the plaint to the plaintiff for a sum of Rs. 7,125 and had duly executed the agreement of sale dated 17.8.1966 and had he received Rs. 2000 as earnest money then and there ? 2. Whether the plaintiff has been ready and willing to perform his part of the contract at all times and whether he is entitled to the decree for specific performance of the agreement of sale ? 3. Whether the defendants 2 and 3 had knowledge of above mentioned agreement executed by the defendant no. 1 in favour of the plaintiff ? If so with what effect ? 4. Whether the defendants 2 and 3 are bona fide purchasers for value and without notice of the agreement existing in favour of the plaintiff ? 5. Is the suit bad for non joinder of the son of Ram Nihor? 6. To what relief, if any, is the plaintiff entitled and on what terms? 8. 4. Whether the defendants 2 and 3 are bona fide purchasers for value and without notice of the agreement existing in favour of the plaintiff ? 5. Is the suit bad for non joinder of the son of Ram Nihor? 6. To what relief, if any, is the plaintiff entitled and on what terms? 8. Handwriting and fingerprint experts were examined from both the sides. The plaintiff examined Sri S.F. Rizvi. The defendant examined Sri H.R. Hardless. Besides the expert evidence, the plaintiff examined Bhagwati Pandey as P. W. 2, himself (Ram Prasad) as P. W. 3, and Jagarnath as P. W, 4. Besides the expert evidence the defendant examined only himself as D.W. 2, Bhagwati Pandey P.W. 2 and Jagarnath P, W. 4 are the two marginal witnesses of the agreement, 9. On issue no. 1 the trial court analysed the evidence. The salient features of the evidence brought out by the trial court are ; The plaintiff was unable to give m to what was the year of Sambat or date of the talk, that the terms of the contract were orally agreed to. According to him, it took place in Sawan but he could not tell whether it was the first or second half of the month. He expressed ignorance with regard to the numbers of the plots in respect of which the agreement to sell was executed. He could not also give the name of the village wherein the plots are situate. He had admittedly not seen the papers relating to the title of the defendant No. 1 or made enquiry in the Registration Office in that regard. He was unable to tell as to what was the area of the different plots which the defendant no. 1 allegedly had agreed to sell to him. From this the trial court inferred that the omission on the part of the plaintiff to ask the defendant no. 1 to show his title deeds and the absence of any enquiry in that regard from the Patwari or Registration Office indicate that there was hardly any talk between the parties prior to the alleged execution of the agreement which is the basis of the suit. 10. 1 to show his title deeds and the absence of any enquiry in that regard from the Patwari or Registration Office indicate that there was hardly any talk between the parties prior to the alleged execution of the agreement which is the basis of the suit. 10. The trial court then noticed: The agreement to sell indicates that the defendant no, I was in need of money for clearing debt for repairing the house and for meeting the domestic expenses,, The plaintiff, however gave out before me that the defendant no. 1 needed money for repairing the house, for purchasing bullocks and land in village Sarsandhi . From this the trial court inferred that the need recited in the agreement was fictitious and further observed The plaintiff could not state what repair. s had been made by Shyam Lal in his house. He had not even seen his house. Shyam Lal denied that he needed money for any of the purposes mentioned in the agreement or stated by the plaintiff. There is no reason to disbelieve his statement. 11. Another circumstance rioted by the trial court against the plaintiff was defendant no. 1 admittedly lived in village Adampur from many years. The counsel for defendant No 1 argued that it was most unlikely that the defendant no. 1 would have agreed to sell the land which was most easy for him to manage. He also pointed that it Was most absurd to suppose that the plaintiff would sell of the bulk of his land for buying bullocks', inasmuch as according to defendant no, 1 if he were to sell the land in suit he would be left with merely 3 1/4 bigha of land. From this the trial court inferred that the probabilities were against the plaintiff. 12. The trial court then proceeded to notice the plaintiff's statement that he asked the defendant no. 1 to execute the saledeed but he told him that he needed only a little money and as such merely a Satta be written then and he would execute the saledeed later after fulfillment of his needs. According to the trial court this statement of the plaintiff indicates that defendant 'no. 1 to execute the saledeed but he told him that he needed only a little money and as such merely a Satta be written then and he would execute the saledeed later after fulfillment of his needs. According to the trial court this statement of the plaintiff indicates that defendant 'no. I never intended to execute the saledeed, and that if any talk with regard to the sale of the plots would have taken place, it was very unlikely that the plaintiff would haws forgotten even the year of the agreement and place and area of the plots. 13. The trial court then noticed that the plaintiff did not examine the scribe of the agreement; that Bhagwati Pandey P.W. 1 stated that he was a resident of village Gharsauna but on the agreement be was described as the resident of village Amaulia. On this the trial Court commented that Bhagwati Pandey was in the habit of telling his residence according to needs of the moment. I may here note that Under his signature he has described himself as Sakin Hall Amaulia, that is to say at present resident of Amaulia. The trial court further noticed that Bhagwati Pandey was not an independent witness and the possibility of his being thick and thin with the plain tiff was not ruled out as he had given some land of his to the family members of Ram Prasad the plaintiff. Discussing this evidence further, the trial court noticed that in his crossexamination he stated that he merely signed as a witness and saw Rs. 2000 paid to the defendant no. 1 and besides these nothing took place in his presence and that as given out by him, he had come to do pairvi in a case of his on that date, but admitted in the next breath that no pairvi was to be done and he had come to enquire the next date fixed which also he was unable to tell. 14. About Jagarnath P.W. 4, the trial court observed that he was not in a position to identify the signature of defendant no. 1 being illiterate and the agreement was not read to him nor was any question put to him about its contents and that according to him the signatures were made on the draft agreement. 14. About Jagarnath P.W. 4, the trial court observed that he was not in a position to identify the signature of defendant no. 1 being illiterate and the agreement was not read to him nor was any question put to him about its contents and that according to him the signatures were made on the draft agreement. Further, according to the trial court in his effort to disguise his interest in the plaintiff, he first deposed that the defendant no. 1 had brought him for evidence and that it was only when he realised the absurdity of his statement that he corrected himself. 15. According to the trial court the statement of Bhagwati Pandey and Jagarnath are at variance on the point of stay of Bhagwati Pandey at the time of the execution of the alleged agreement, and that a perusal of the agreement shows that there are overwritings over the number of a plot, area of another, and signature of Ram Prasad at the foot; and that the agreement does not contain any endorsement of the receipt of Rs. 2000 in the handwriting of defendant no. 1, although another deed paper No. 53KaI filed by the plaintiff bears a note that he had executed the sale deed in his own handwriting. 16. Further, according to the trial court there is also force in the contention of defendant no. 1 that in case the plaintiff would have paid Rs. 2000 to defendant no. 1, he would have got a registered deed executed. 17. The trial court then made the following observations with regard to the evidence of the defendant's expert Shri H.R. Hardless: The expert of the defendant no. I Sri H.R. Hardless stated that the alleged agreement did not bear the signature of the defendant no. i. In his opinion the agreement to sell contained free hand forgery of the signature of Shyam Lal, He found delicate tremors and close similarity in forms of letters and spacing between letters. The tremors according to him, indicated simulation and shakiness and the close similarity in forms of letters and spacing showed that ail the three signatures were copied from a single model. The endings of almost all the letters in the disputed signature no doubt possess greater quantity of ink than the commencing parts of the strokes. The tremors according to him, indicated simulation and shakiness and the close similarity in forms of letters and spacing showed that ail the three signatures were copied from a single model. The endings of almost all the letters in the disputed signature no doubt possess greater quantity of ink than the commencing parts of the strokes. The expert rightly observed that the person who made the signature on the alleged agreement was obliged to pause before completing a down stroke and it was for that reason that there was extra flow of ink at the end of each stroke. 18. The trial court concluded by saying that the alleged signature of Shyam Lal thus on the document paper no, Ka17 cannot be said to be natural and finally held on issue no. 1, on the basis of the aforesaid reasons as given by it, that the plaintiff's evidence does not show beyond doubt that there was any agreement with regard to the sale of the plots in suit in his favour and it was not in the interest of defendant no. 1 to transfer them more so as there were no pressing reasons therefore. 19. Having arrived at the aforesaid conclusion the trial court observed that the report of Sri Rizvi, expert of the plaintiff is too general. He had not met the points raised by Sri Hardless, who appeared to me to be more experienced and convincing, particularly because the balance of evidence on record is in favour of defendant No. 1. The penultimate finding recorded by the trial court on issue no. 1 is: Plaintiff in my opinion, has not led satisfactory evidence to prove that the defendant no. I had agreed to sell the plots detailed at the foot of the plaint to the plaintiff for a sum of Rs. 7,125 and had duly executed the agreement to sell dated 17,8,1966 and received Rs. 2000 as earnest money. 20. In view of the said finding, issue no. 2 was answered by the trial court by saying that there was no question of the plaintiff having been ready and willing to perform his part of the contract; and that, issue no. 3 must be answered in the negative; and issue no. 4 in the affirmative. 21. The lower appellate court formulated the question Whether defendant no. 2 was answered by the trial court by saying that there was no question of the plaintiff having been ready and willing to perform his part of the contract; and that, issue no. 3 must be answered in the negative; and issue no. 4 in the affirmative. 21. The lower appellate court formulated the question Whether defendant no. 1 had entered into an agreement of sale by executing the Satta dated 17.8.66, relied upon by the plaintiff ? and if so, whether defendants nos. 2 and 3 are bonafide transferees for consideration without notice of the contract of sale ? Instead of discussing the direct evidence of the witnesses of the plaintiff, the lower appellate court reproduced the written opinions given by the two experts and then quoted the observations of the trial court about the evidence of Sri Hardless and Sri Rizvi which have been quoted hereinabove also. Its attention was then invited to an observation made by the Supreme Court in Fakhruddin v. State of M.P. (1967 All LJ 303) to the effect that when an expert's opinion is given the Court must see for itself and with the assistance of the Expert come to its own conclusion. However, the learned Judge of the lower appellate Court does not appear to have himself compared the admitted and the disputed signatures with the assistance of the experts, instead he proceeded to observe that from the excerpt of the judgment of the learned Judge of the trial court, quoted above. It will be seen that he had noted the fact that the endings in almost all the letters of the disputed signatures contain greater quantity of ink than the commencing parts of the strokes, a circumstance from which he concluded that the defendant's expert had rightly observed that the person, who made the disputed signatures, had been obliged to pause before completing a down stroke, with the result that there was extra flow of ink at the ends of the stroke. The learned Judge of the lower appellate court then proceeded to observe. I also find that the learned Judge had rightly observed that the plaintiff's expert had not met the points raised by the defendant's expert, who was more experienced. The learned Judge of the lower appellate court then proceeded to observe. I also find that the learned Judge had rightly observed that the plaintiff's expert had not met the points raised by the defendant's expert, who was more experienced. It will be seen that H. R. Hardless D.W. 1 had deposed that he had been practising as a Handwriting and Finger Print Expert for 40 years while Fasahat Rizwi P.W. 1 had deposed that he had only 13 years experience in this line. The opinion of the defendant's expert, therefore, carry more weight. I also find that the defendant's expert had found that the disputed signatures measure 37 mm. to 49 mm. in length and the letters in the same had been widely spaced, while the letters in the specimen signatures were more condenced and measure between 28 mm. and 35 mm. In the disputed signatures I find that the letters have been written with greenish ink while the top horizontal line over the letters is in blueblack ink. It appears that the scribe had drawn this line for the executed to put his signature on that line and since the length of the line was much longer than was necessary for the signatures, the forger seems to have been subconsciously or unconsciously led to provide wider spacing between the letters. This was quite possible if his conscious attention was focused on the formation of the letters at the time of freehand forgery. In other words the disputed signatures indicate that the forger forgot while putting down the letters of the signatures that they had to be more condensed. 22. Having said so much the learned Judge of the lower appellate court proceeded to make the following further observations: To show that the disputed signatures are forget ones there is very convincing material on record. The plaintiff had filed 25Ka1 acknowledgement with list 22C. This postal acknowledgement had been filed in support of the postal receipt Ex. 1, the plaintiff's case being that the suit had been brought after the service of a notice on Shyam Lal, defendant no. 1. These papers are no. 2 and 3 of list 22C about which a reference has been made by plaintiff Ram Prasad as P.W. 3. The acknowledgement 25Ka1 purports to bear the signature of Shyam Lal defendant no. 1. 1. These papers are no. 2 and 3 of list 22C about which a reference has been made by plaintiff Ram Prasad as P.W. 3. The acknowledgement 25Ka1 purports to bear the signature of Shyam Lal defendant no. 1. It is true that the Handwriting Experts have not used this material for the purpose of comparison but that fact is quite material and 1 may myself compare it as contemplated by Section 73 Evidence Act. There are three remarkable things about the signature purporting to be of Shyam Lal defendant no. 1 on 25Ka1. The signature starts with 'Dantassa' while the disputed and specimen signatures of defendant Shyam Lal starts with 'TalabyaSha (), the signature purporting to be of Shyam Lal on 25Ka1 appears to have been written with greenish ink with which the disputed signatures had been written. The signature 25Ka1 contains the expression 'Lal' ( rrr) at two places, one of which forms part of the name Shyam Lal and the other of the name Mohan Lal which is the father's name of defendant no. 1. These I have enclosed in red. Even a casual look at these would convince one that the writer has a set handwriting and has written them with speed. He has also the habit of breaking 'La' into two portions. These features are not at all present either in the disputed signature or in the specimen signatures which had been compared by the Experts. The plaintiff's own Expert has admitted that the writer' of the disputed and admitted signatures could not write with a set hand. There can, therefore, be no doubt that the signature purporting to be of defendant Shyam Lal on acknowledgement 25Kal is a forged one. From 25Kal it is evident that the forgoer wanted to disguise his handwriting and for that purpose he had begun with the letter (7;) in the manner of an illiterate person whose handwriting was not set but as he proceeded further he could not check his natural speed specially while writing 'Lai' ( TT r) which forms part of numerous names in this part of the country. The forgoer must have got so used to writing the expression 'Lal' with speed that he could not check his speed while simulating the signature of Shyam Lal Defendent No. 1. The forgoer must have got so used to writing the expression 'Lal' with speed that he could not check his speed while simulating the signature of Shyam Lal Defendent No. 1. It is also obvious that the forger used 'DantasSa' () for starting the signature for showing that Shyara Lal defendant no. I was attempting to disguise his signature. Greenish ink had been used for connecting the signature on 25Ka1 with the disputed signatures which are also in greenish ink. The learned counsel for the plaintiffappellant also pointed out the fact that defendant Shyam Lal had on the summons, 14Ka2, served on him put his f thumb mark instead of his signature. He has also referred to the process server's report on the back of 14Ka2 to the effect that he had refused to put his signature on the ground that his counsel has had instructed him to put his thumb mark. On the face of it the process server's report appears to be suspicious because even if his counsel had asked Shyara Lal defendant no. 1 that he should refrain from putting his signature he was not expected to disclose such a confidential advice. The fact also remains that the processserver had not been put in the witness box and as such the defendant did not have the opportunity of testing his statement by crossexamination. Similarly the plaintiff had not examined the postman before whom the signature on acknowledgement paper no. 25KaI was made. As contemplated by Illustration (g) of Section 114 Evidence Act., therefore, an adverse presumption arises against the plaintiff for the nonexamination of the processserver an the postman. The learned counsel for the plaintiffappellant has cited the rulings; Ishwari Prasad v. Mohammad Isa, AIR 1963 SC 1728 in support of his contention that the defendant's case being of simulated forgery it had not been proved that the plaintiff had a model of the signatures of Shyam Lal defendant no. 1 for the purpose of simulating a signature. In that case their Lordships of the Supreme Court had rejected the Expert evidence on simulated forgery on the ground that it had not even been suggested to the party relying on the signature that he was in possession of a model for forging the signature of the other party. 1 for the purpose of simulating a signature. In that case their Lordships of the Supreme Court had rejected the Expert evidence on simulated forgery on the ground that it had not even been suggested to the party relying on the signature that he was in possession of a model for forging the signature of the other party. In the present case, however, it was not necessary to make any such suggestion because the filing on the part of the plaintiff 25Ka1 acknowledgement purporting to contain the signature of Shyam Lal defendant no. I amounted to an admission on the part of the plaintiff that he was in possession of the signature of defendant no. 1 and he could use that as a model for forging his signature including that appearing on the acknowledgement 25Ka1 itself. In these circumstances I agree with the opinion of H.R. Hardless D. W. 1 and the learned Judge and have no hesitation to say that the signatures purporting to be of Shyam Lal defendant no. 1 on paper no. 7K.a1 are forged ones. 23. Having reached that conclusion the learned Judge then proceeded to discuss the oral evidence and having done so he arrived at the conclusion that he was unable to say that the learned Judge of the trial court has erred in appreciating the oral evidence on the record. 24. The last thing considered by the learned Judge were the probabilities and circumstances of the case. It is not clear whether those circumstances were proved facts. He then proceeded to hold that the evidence of Shyam Lal D.W. 2 that he had not executed the deed in question was quite believable because he could not have any worthwhile motive for denying the execution of the deed when lie must have known that the plaintiff could easily file a suit for specific performance on the basis of the deed if he had actually executed the same and that reliance on the acknowledgement paper no. 25Ka1 which is palpably a forged document has completely exposed the plaintiff and that the nonexamination of the scribe and the Stamp Vendor was an infirmity in the plaintiff's case and an adverse presumption must be raised against him under section 114 of the Evidence Act. 25. 25Ka1 which is palpably a forged document has completely exposed the plaintiff and that the nonexamination of the scribe and the Stamp Vendor was an infirmity in the plaintiff's case and an adverse presumption must be raised against him under section 114 of the Evidence Act. 25. With these observations, the lower appellate court proceeded to confirm the finding of the trial court that the plaintiff had failed to prove the agreement of sale relied upon by him, and added the following; For the reasons discussed above I am of the opinion that the plaintiff and his witnesses Bhagwati Prasad Pandey P.W. 1 and Jagarnath P.W. 4 have intentionally given false evidence and that for the eradication of the evils of perjury and fabrication of false evidence and in the interest of justice it is expedient that they should be prosecuted for the offence punishable under section 193 I.P.C. I am also of the opinion that it is expedient in the interest; of justice that an inquiry be made into the offence punishable under Section 471 I.P.C. which appears to have been Committed in respect of the deed, 7Ka1 and acknowledgement 25Ka1. 26. The basic question involved in the case is whether the agreement in Suit is a forgery and since the two courts below have concurrently found and held it a forgery and the lower appellate court has even gone to the length of directing the issue of notice to the plaintiff and his witnesses to show cause why they should not be prosecuted for giving and fabricating false evidence., the question which arises for determination in this second appeal before this Court is whether the said finding, which is obviously a finding of fact, is vitiated by any error of law or of procedure. 27. The basis and the reasons given by the two courts below for arriving at the finding that the agreement is a forgery have already been elaborated hereinabove. The ultimate finding being of the lower appellate court, it would be appropriate to examine each of the reasons given by that court and to see whether they afford any valid basis for the finding. The view of the lower appellate court is that the forgery of the signatures of Shyam Lal, the first defendant on the agreement is a case of simulated forgery and that the filing of the acknowledgement paper no. The view of the lower appellate court is that the forgery of the signatures of Shyam Lal, the first defendant on the agreement is a case of simulated forgery and that the filing of the acknowledgement paper no. 25RaI purporting to contain the signatures of Shyam Lal amount to an admission on the part of the plaintiff that he was in possession of the signature of defendant no. 1 and he could use that as a model for forging his signature including, that appearing on the acknowledgement 25KaI itself. This observation was made by the lower appellate court to meet the arguments raised on the basis of the Supreme Court's observations in Ishwari Prasad Misra v. Mohammad Isa ( AIR 1963 SC 1728 at page 1736 para 26) to the effect that it was essential to show for establishing a case of simulated forgery that the person who is alleged to have forged the signature was in possession of a model of the genuine signature which could have been used for the purpose of simulation. Curiously enough the lower appellate court has said so inspite of its finding that the signatures on the acknowledgement card () itself was a forgery. The signatures on the acknowledgement card being forged, even according to the finding of the lower appellate court, it could not have been possibly the model for simulation. The further curious fast is that the form of the first letter 'sha' of the disputed signatures on the agreement in question if Talabya Sha while the first letter of the name of Shyam Lal on the acknowledgement card paper no. 25KaI is a Dant Sa () and that too not a complete Sa() but without the Akar ending, that is S (?) only. The wording of the signatures purporting to be of Shyam Lal on 25KaI is also wholly different from the words of the disputed signatures of Shyam Lal on the agreement in question and the admitted signatures of Shyam Lal on other documents. The wording of the signature of Shyam Lal on the acknowledgement card paper no. 25Ka2 is: On the other hand the disputed signatures on the agreement in question contains merely the words 'Shyam Lal'. The wording of the signature of Shyam Lal on the acknowledgement card paper no. 25Ka2 is: On the other hand the disputed signatures on the agreement in question contains merely the words 'Shyam Lal'. The admitted signatures of Shyam Lal on the written statement and other papers also contain only words 'Shyam Lal That shows that Shyam Lal was not in the habit of writing his father's name or 'Bakalam Khud' as part of his signatures but was in the habit of signing his name by only writing the letters which constitute it. In order to have simulated the signatures of Shyam Lal for forging the same on the agreement in question, it appears to have been necessary to show that a model of the admitted signatures of Shyam Lal as found on his written statement or other documents on the record consisting only of the letters 'Shyam Lal' was available with the plaintiff. The fact that the plaintiff filed the acknowledgement card paper no. 25KaII coupled with the finding that the signatures of Shyam Lal on that acknowledgement card are forged, go to establish that the plaintiff could not have been in possession of a model of genuine signatures of Shyam Lal which might have been simulated for forging the agreement in question. The finding of the lower appellate Court that the plaintiff was in possession of the genuine signatures of Shyam Lal which could have been used for simulation of his signatures on the agreement in question is thus without any basis and erroneous. It is vitiated in law. Thus the additional reason set forth by the lower appellate court for its finding is no reason at all and I must now proceed to examine whether the lower appellate court acted properly in confirming the finding of the trial court on other grounds. It is vitiated in law. Thus the additional reason set forth by the lower appellate court for its finding is no reason at all and I must now proceed to examine whether the lower appellate court acted properly in confirming the finding of the trial court on other grounds. The lower appellate court has not discussed the oral evidence and after quoting the written opinions of the two experts, it proceeded to notice the decision of the Supreme Court in Fakhruddin v. State of M.P. (1967 All LJ 303) but did not do what the Supreme Court has said a court ought to do, namely, to apply its own observation to the admitted or proved writings and to compare them with the disputed ones, not to become a handwriting expert but to verify the premises of the expert in the one case and to appraise the value of the opinion in the other case; and thus where an expert's opinion is given the court must see for itself and with the assistance of the expert come to its own conclusion whether it can safely be held that the two writings are of the same person. According to the Supreme Court this did not amount to saying that the court must play the role of an expert but to saying that the court may accept the fact proved when it has satisfied itself on its own observation that it is safe to accept the opinion whether of the expert or other witness. 28. The lower appellate court did not even discuss the evidence given by the experts on oath. The basis of the opinion of Mr. Hardless was that the disputed signatures contained too may tremors & the existence of greater quantity of ink at the end of the strokes showed pen pauses. I have tried to locate the socalled tremors pointed out by Mr. Hardless in vain. I could not find any such tremors. On the other hand my own observation agrees with that of the expert Mr. Fasahat Rizvi P.W. 1 that the disputed signatures did not show any tremors. The accumulation of ink at the end of the strokes of the Setters do not afford any indication of unnatural penpauses. Hardless in vain. I could not find any such tremors. On the other hand my own observation agrees with that of the expert Mr. Fasahat Rizvi P.W. 1 that the disputed signatures did not show any tremors. The accumulation of ink at the end of the strokes of the Setters do not afford any indication of unnatural penpauses. The accumulation of the ink is at the natural ending of the line after which every writer would have been obliged to lift the pen unless of course the writing was continuous, which is not the case here. 29. The line quality and the similarities detailed by the expert Mr. Fasahat Rizvi P.W. 1 in his report as well as in his evidence, show that the disputed signatures are not forged. The view expressed by the courts below that the opinion of the expert Mr. Fasahat Rizvi P.W. I was general is not correct. He has discussed every feature clearly under separate heads. In my opinion the reasons given by Mr. Rizvi are scientific and correct. The opinion of the expert Mr. H.R. Hardless, D. W. 1, appears to me to be a forced opinion. As already observed, his observation that there are tremors is not correct. He could not explain the similarity of form between the disputed signatures and the admitted signatures and that seems to be the reason why it was suggested that it was a case of simulated forgery. Infact the whole opinion of the expert Mr. H.R. Hardless P.W. 1 proceeds on the premises that the signatures were forged. He had stated his conclusion as the first thing in his opinion and then tried to justify it, by suggestions and theories for which there does not appear to be any real basis in fact. 30. Another reason given by the two courts below for accepting the opinion of the expert Mr. H.R. Hardless D. W. 1 is that he was more experienced than the expert Mr. Rizvi P. W. 1. The weight to be attached to the opinion of an expert depends on its reasonableness and scientific quality and not on the length of the practice of the expert. Mr. Rizvi appears to have been better trained and better qualified and his statement shows that although he had practiced for a lesser number of years, he had appeared in a large number of cases than the expert Mr. Mr. Rizvi appears to have been better trained and better qualified and his statement shows that although he had practiced for a lesser number of years, he had appeared in a large number of cases than the expert Mr. Hardless D. W. 1. Notwithstanding his alleged length of practice, all that he could say was that he appeared in 2 or 14 cases in Varanasi courts during the last 20 years but could not give the names of the courts. He seems to be a resident of Chunar in the district of Mirzapur. Chunar, it is well known, is a small place, and if the expert Mr. H. R. Hardless D. W. 1 had any practice as an expert worth the name, he would have surely been living in atleast some one of the Kabal towns or where there was sufficient work for his abilities. Indeed, the whole basis or the reasons on which the two courts below have preferred the opinion of the expert Mr. H.R. Hardless D. W. 1 to the opinion of the expert. Mr. Rizvi P. W. 1, are no reasons at all. 31. I am of the opinion that the signatures purporting to be those of Shyam Lal on the agreement to sell dated 17th August, 1966, which is the basis of the suit are not forged. The signatures appear to be genuine. The reliance placed by the two courts below on the opinion of the expert Mr. H.R. Hardless D.W., 1, was unscientific and against the principles enunciated by the Supreme Court in the decision referred to by the lower appellate court itself in its judgment. This vitiates the finding of the two Courts below that the signatures on the agreement dated 17th August, 1966 are a forgery in so far as that finding is based on the expert evidence. 32. But the trail court has based its finding primarily on the oral evidence; and in that the trial court was certainly in a better position to appraise the evidence than this Court. The trial court has brought out certain features of the plaintiff's evidence which makes the existence of any genuine agreement to sell extremely doubtful. For instance the plaintiff did not know the area of the land which he was supposed to have agreed to purchase. The trial court has brought out certain features of the plaintiff's evidence which makes the existence of any genuine agreement to sell extremely doubtful. For instance the plaintiff did not know the area of the land which he was supposed to have agreed to purchase. He was unable to give the year or the Sambat or the date of the talk when the terms of the agreement were orally agreed to. He could not give the plot numbers, he could not give the names of the villages where the plots were situated. He had not seen the documents of title and had made no enquiry about the title of the defendant before aggreeing to purchase the land. There was the further fact that the signatures of Ram Prasad at the end of the agreement clearly appear to be over written. The fact remains that the due execution of the agreement was proved by the direct evidence of the witnesses Bhagwati Pandey P.W. 2 and Jagarnath P.W. 4 besides that of the plaintiff himself as P. W. 3. The task of a Judge becomes difficult in these circumstances. More so because perjury in courts has almost become a part of our life although we all swear in the name of God to speak the truth, nothing but truth and the whole truth. 33. All that remains with a Judge is to weigh the substance of the evidence on the basis of probabilities in the light of the proved facts and circumstances. 34. One circumstance which has intrigued me most in the present case is the fact that although agreement to sell is dated the 17th August, 1966 and the need for agreeing to sell the land was said to be pressing need of money for meeting certain liabilities, yet only the sum of Rs. 2000 was said to have been paid when the agreement was alleged to have been executed on 17th August, 1966 out of the total sale consideration of Rs. 7,125 and the execution of the saledeed on payment of the balance sum of Rs. 5,125 was postponed upto 30th March, 1967, a date some 7 months later. These facts show that there was no immediate need to sell the land and the alleged need was for Rs. 2000 only which was satisfied by the money allegedly paid on the execution of the agreement. 5,125 was postponed upto 30th March, 1967, a date some 7 months later. These facts show that there was no immediate need to sell the land and the alleged need was for Rs. 2000 only which was satisfied by the money allegedly paid on the execution of the agreement. The statement which the plaintiff made on oath on these points is more consistent with the case of an advance of a loan of Rs. 2000 made by the plaintiff to the first defendant on 17th August, 1966 with a promise to repay it by 30th March, 1967, and the execution of the agreement to sell as collateral security to enforce the promise. Such transactions are not uncommon, particularly in view of section 164 of the U.P. Zamindari Abolition and Land Reforms Act which deems even a mortgage with possession of Bhumidhari land to be a sale. An agriculturist in need of money is often placed in great difficulty. He has to borrow to satisfy his needs. The creditor is not prepared to advance without adequate security. The only security which the needy agriculturist can offer is his agricultural land, but if he does so the transaction is deemed to be a sale. He does not want to part with the land at any cost for that is his only source of livelihood. An agreement to sell by way of a collateral security is in such a situation a satisfactory answer, provided the creditor does not become dishonest and does not refuse to cancel the agreement when the loan is repaid. 35. Although it was not the case pleaded by the first defendant, but faced with a dishonest creditor he was probably advised that his only defence lay in denying every thing in face of the agreement. The signatures of the first defendant on the agreement appear to be genuine. The contents of the agreement and its terms appear to be got up and false in the light of the plaintiff's own evidence as brought out by the trial court. It may even be that the signatures of the first defendant were obtained on blank sheets of stamp paper. Such a practice is not only not uncommon but is quite common in our country. A needy debtor has no option but to trust the creditor who helps at the time of his need. Even this plea was not taken. It may even be that the signatures of the first defendant were obtained on blank sheets of stamp paper. Such a practice is not only not uncommon but is quite common in our country. A needy debtor has no option but to trust the creditor who helps at the time of his need. Even this plea was not taken. The plea was that the agreement was forged. Although the genuineness of signatures was denied, but the first defendant's plea that the agreement to sell was forged cannot be said to be inconsistent with the fact that his signatures were obtained on the two blank sheets of stamp paper which were later on made into an agreement to sell. The object of the creditor may not have been wholly dishonest in the present case for even while doing so the terms of the agreement required him pay Rs. 5,125 more in addition to the sum of Rs. 2000 already said to have been paid on 17th August, 1966. Even so a man cannot be compelled to sell his land if he does not intend to. The terms of the agreement do not show that he had any need to sell the land. The plaintiff's evidence also does not show that there was any genuine agreement to sell in his favour. 36. Under all these circumstances I had come to the conclusion that although the signatures of the first defendant on the agreement dated 17th August, 1966 appear to be genuine and although the sum of Rs. 2000 was most probably advanced to him that day by the plaintiff there was in fact and in substance no agreement to sell the land on his part. The transaction was in fact and in substance a transaction of loan and the agreement dated 27th Augusts 1966 was executed by way of collateral security. 37. Since 1 had not heard argument on this aspect of the case, the case was listed for further hearing and the counsel for the parties were apprised of the situation, Mr. Rajendra Kumar appearing for the defendantrespondent urged that the agreement having been found to be a false document, there should be no decree against the defendant and even if the court were inclined to decree refund of Rs. 2000, said to have been advanced, it cannot do so inasmuch as there is no prayer' for that relief. Rajendra Kumar appearing for the defendantrespondent urged that the agreement having been found to be a false document, there should be no decree against the defendant and even if the court were inclined to decree refund of Rs. 2000, said to have been advanced, it cannot do so inasmuch as there is no prayer' for that relief. Needless to repeat that it was the specific case of the defendant respondent that the agreement was a forgery and no money was in fact advanced to him. However, in view of the findings arrived at by me, learned Counsel urged that in any case the suit could not be decreed for refund of the amount of Rs. 2000 unless the plaint was amended Mr. G.P. Bhargava, learned counsel for the appellant thereupon contended that it was not necessary in law to amend the plaint, Even so by way of precaution, time was taken to make an application for amendment of the plaint, Two applications have been filed today; one in English and the other in Hindi praying for amendment of the plaint by adducing a relief for refund of Rs, 2000 with pendente lite and future interest at four annas percent per mensem in the alternative. The English application does not give any grounds or reasons for seeking the amendment and is not signed and verified by the plaintiffappellantapplicant. The Hindi application on the other hand is verified by but not signed by the appellantapplicant. It is to be regretted that Mr. S.K. Singh who has signed the application should not have even known the procedure of making an application for amendment of the plaint. Nevertheless the applications cannot be allowed as they ars not in proper form. 38. Faced with the situation Mr. G.P. Bhargava relied on a decision of a learned Single Judge of this Court in Mdhd. Yunus v. Mahd. Yusuf (1982 Allahabad Civil Journal, 330) where it was held that the relief for refund of the advance consideration is smaller as compared to the relief of specific performance and should be allowed although no such specific prayer was made in the plaint, and the refund of the advance with pendente lite and future interest at 6 percent per annum was in fact allowed. Mr. Mr. Bhargava also referred to a decision of the Supreme Court in Firm Sriniwas Ram Kumar v. Mahabir Prasad and others ( AIR 1951 SC 177 ) wherein a suit for specific performance of a contract, in part performance of which the plaintiff alleged to have paid the defendant some money, the defendant denied the contract and pleaded that the money was taken by him as a loan. The Supreme Court held that the court can pass a decree for recovery of the loan in favour of the plaintiff on his failure to prove the contract even though the plaintiff had failed to plead and claim relief on this alternative basis. 39. Having given the matter my anxious consideration, and technicalities apart, I think it is a fit case in which the plaintiff should have a decree for recovery of Rs. 2000 with pendente lite and future interest at 3 percent per annum from 17th August, 1966 to the date of recovery. In view, however, of the fact that both the parties appear to have set up a false case and not to have come out with the truth, they must be left to bear their own respective costs throughout. 40. In the result the appeal succeeds and is allowed. The judgment and decree under appeal are set aside. Instead the plaintiff's suit is decreed for recovery of Rs. 2000 only with pendente lite and future interest at 3 percent per annum. The parties shall bear their own respective costs throughout. (Appeal allowed)