( 1 ) THIS is defendants' appeal from the judgment and decree dated 19th April, 1997, whereby the trial Court (18th Additional City Civil Judge, Bangalore), decreed plaintiffs claim for recovery of money in O. S. No. 2548 of 1986. The plaintiff-respondent filed the above suit against one Subbaiah for recovery of a sum of Rs. 1,09,600/-, with the allegation to the effect that B. S. Subbaiah borrowed a sum of Rs. 80,000/- on 15-3-1983 and 19-5-1983, from the plaintiff and agreed to repay the same with interest at 12% per annum. ( 2 ) ACCORDING to the plaintiff, the defendants had taken Rs. 50,000/- on March 15th, 1983 and Rs. 30,000/- on 19th May, 1983, and according to the plaintiff, B. S. Subbaiah, agreed to repay the loan as above. According to plaintiff, Sri B. S. Subbaiah had executed an stamped pronote receipt on May 10th, 1983. It may be mentioned here that due to some confusion, as appears in the plaint vide paragraph V, it was originally typed as 10th May, 1983, instead of 19th May, 1983. Anyhow this confusion appears more apparent and mistaken typing, as under Issue No. 4, the date is mentioned as 19-5-1983. According to the plaintiff, defendants did not repay the loan, and so plaintiff had to file the suit. According to the admitted position, Subbaiah died on 1-6-1983, leaving behind the defendants, that is his widow, viz. , appellant 1 and the three children as the heirs. The plaintiff further alleged that when the plaintiff approached the 1st defendant and issued notice to 1st defendant, the defendants refused to own any liability and so plaintiff had to file O. S. No. 10129 of 1984 and later on the same was withdrawn with permission to file the fresh suit. So the present suit had been filed on 19-4-1986. Plaintiff has claimed the decree for the above amount. ( 3 ) DEFENDANTS denied the plaintiffs claim. Defendants asserted that B. S. Subbaiah did neither take any loan from the plaintiff-respondent, nor did ever agree to pay any interest and nor did he execute any document or acknowledgement or receipt. The defendants asserted that plaintiff-respondent's claim was based on fabricated documents. The defendants also took the plea that there was no need for Subbaiah to borrow any money from the plaintiff and to repay the same with or without interest. The defendants asserted that plaintiff-respondent's claim was based on fabricated documents. The defendants also took the plea that there was no need for Subbaiah to borrow any money from the plaintiff and to repay the same with or without interest. Defendants-appellants further asserted that the suit is the result of a rivalry or ill-will which plaintiff-respondent did bear against defendants-appellants and subbaiah. The defendants-appellants further asserted that plaintiff had no cause of action and further asserted that the suit was time barred. It was also asserted that plaintiff-respondent had no right to file the suit. ( 4 ) ON the basis of the pleadings of the parties, Trial Court framed the following issues: (1) Whether Bhojaraja Rao had authority to file the suit? (2) Whether the suit is bad for non-joinder of Janardhan Rao? (3) Whether the deceased Sri B. Subbaiah borrowed a sum Rs. 50,000/- and Rs. 30,000/- from the plaintiff? (4) Whether B. Subbaiah has executed a pronote on 19-5-1983 in favour of the plaintiff? (5) To what decree, the plaintiff is entitled? (6) To what order or decree? ( 5 ) THE Trial Court decreed the plaintiffs suit after having held that plaintiff-firm being registered one and suit having been filed in the firm's name was maintainable and Bhojaraja Rao had authority to file the suit on behalf of the firm. It further held that presence of other parties were not necessary, as the suit was filed in the name of the registered firm. The Trial Court further held as under: "this Court is of the opinion that Subbaiah might have been in some financial distress and accordingly he has obtained the same not only once but on 2 occasions from the plaintiff. However, it is admitted that Subbaiah is not alive today and he would have been a best person to elaborate on this point. On the other hand, the plaintiff by way of oral as well as the documentary evidence has proved the loan obtained by Subbaiah and that Subbaiah executed Ex. P. 2, dated 19-5-1983, which is the receipt for the total amount of Rs. 80,000/-". ( 6 ) THE Court held that, in view of the above findings, plaintiff- respondent has been entitled to decree for the sum of Rs. 1,09,600/-, with interest at the rate of 12% per annum. P. 2, dated 19-5-1983, which is the receipt for the total amount of Rs. 80,000/-". ( 6 ) THE Court held that, in view of the above findings, plaintiff- respondent has been entitled to decree for the sum of Rs. 1,09,600/-, with interest at the rate of 12% per annum. ( 7 ) FEELING aggrieved from the judgment and decree of the Trial Court, the defendants have come up before this Court. ( 8 ) IT has been contended on behalf of the appellants by Sri Omkaresh, holding brief for Sri D. L. Jagadish, Counsel for the appellants that the judgment and decree of the Trial Court suffers from error of law and error of fact. Learned Counsel contended that the finding of the Court below that there was a transaction of loan on two dates, that is on 15-3-1983 and 19-5-1983, whereunder the defendants-appellants received a sum of Rs. 80,000/- totally and executed Ex. P. 2 on 19-5-1983, is based on no evidence and the evidence of P. W. 2 does not establish the transaction nor has it established the execution of the receipt dated 19-5-1983, Ex. P, 2. Learned Counsel submitted that evidence of p. W. 1 is of the interested witness and it must not carry any weight. The alleged witness of the debt, learned Counsel contended does not prove the execution of Ex. P. 2 nor his evidence proves the passing of money from the plaintiff-respondent to defendants' father B. Subbaiah, who is also predecessor of present appellants. Learned Counsel for the appellants further contended that the Court below illegally refused the application of the defendants-appellants for examination of expert's evidence and the Court below thereafter acted illegally and against all norms of judicial fair play by acting as a witness and by itself taking the role of witness or attesting witness or expert's witness to compare the signatures. Learned Counsel for the appellants has contended that there has been no agreement between the plaintiff-respondent and defendants-appellants, nor there has been any transaction of loan nor defendants entered into agreement to pay any interest. He further submitted that the trial Court has not held that the defendants-appellants had agreed to pay any interest and without having recorded the finding on the point, Court below acted illegally in awarding interest at the rate of 12% per annum even for the period viz. He further submitted that the trial Court has not held that the defendants-appellants had agreed to pay any interest and without having recorded the finding on the point, Court below acted illegally in awarding interest at the rate of 12% per annum even for the period viz. , pendente tite and future without taking note of Section 34 of the Code of Civil Procedure. No other point has been urged by the appellants' Counsel. ( 9 ) ON behalf of the respondent, the plaintiff-respondent's Counsel contested the contentions raised by the learned Counsel for the appellants. Sri Chaitanya Hegde, learned Counsel for the respondent contended that P. W. 2, has proved the transaction of loan and apart from that, the documents produced by the plaintiff, that is, receipts' signatures. Their perusal reveals as found by the Court below that Ex. P. 2, contained the signatures of the person, who had signed the rent receipts, viz. , Exs. P. 7 to P. 74, and the Court below under Section 73 of the Evidence Act had compared those signatures and so, he did not find any difference in signatures. Learned Counsel further contended that the books of accounts exs. P. 3 and P. 4, which are day-book of the Income-tax return of the plaintiff-respondent clearly prove the transaction of loan. ( 10 ) THE plaintiffs suit is based on the documents, alleged to be receipt or pronote, that is Ex. P. 2. There is no doubt that B. Subbaiah had died before the filing of the suit in June 1983. The defendants have denied the signature of B. Subbaiah on Ex. P. 2, dated 19-5-1983 which is alleged to be the receipt-cum-pronote accepting the transaction. In a suit for recovery of money plaintiff has to prove his case and the transaction. Plaintiff has examined in addition to himself; p. W. 2, as a witness. P. W. 2, is a witness, who claims to have been carrying on business of supplying of coconut to the plaintiff-respondent. A perusal of the statement does not show that p. W. 2, has proved the particular signatures on Ex. P. 2, to he of B. Subbaiah. He has nowhere deposed that signatures on Ex, P. 2, which are in English are of B. Subbaiah and it is these signatures which have been made in Ms presence by B. Subbaiah. A perusal of the statement does not show that p. W. 2, has proved the particular signatures on Ex. P. 2, to he of B. Subbaiah. He has nowhere deposed that signatures on Ex, P. 2, which are in English are of B. Subbaiah and it is these signatures which have been made in Ms presence by B. Subbaiah. His evidence does not show he had any talk with P. W. 1 or the old man whom he refers as, with whom there was some conversation going on between P. W. 1 and that old man. He further states that, though we could see P. W. i and another sitting inside the office, he could not hear the conversation between them. P. W. 2 further says Raju told him (P. W. 2) that there was an agreement between P. W. 1 and the old man and to that agreement he put his signature. He further says: by agreement, I mean some talk between the P. W. 1 and the old man. He further deposed that 'i cannot read and write english. P. W. 1 and old man put their signatures on that agreement in my presence. I also put my signature on that agreement'. The witness further deposed in the course of cross-examination, 'i do not know what document to which Raju signed in the office of Bhojaraja Rao-P. W. 1. I did not see how much money was paid, it was Raju, who told me (P. W. 2 ). I did not see Bhojaraja rao paying money to old man'. He has deposed 'i do not know what was the document which I signed. I was told that they had entered into an agreement and therefore, I was required to sign. Contents of the documents were not read over to me'. This deposition of P. W. 2, clearly shows that P. W. 2 was not a witness to transaction and no money was paid to B. Subbaiah, the predecessor in interest of defendants-appellants by respondent plaintiff-B. Bhojaraja Rao. He makes vague statement that there was some agreement. He says that he was told by Raju how much money was paid. That would be only a hearsay evidence and as I have mentioned earlier that P. W. 2, has nowhere said that it is Ex. He makes vague statement that there was some agreement. He says that he was told by Raju how much money was paid. That would be only a hearsay evidence and as I have mentioned earlier that P. W. 2, has nowhere said that it is Ex. P. 2 document placed before him; that was executed and signed by B. Sub-baiah and the signatures on Ex. P. 2, are of B. Subbaiah. He has nowhere said that the signatures on Ex. P. 2, were made in his presence. Thus, looking to the evidence of p. W. 2, I find that P. W. 2's evidence does not establish any transaction of loan or agreement of taking loan and agreeing to repay nor does it prove execution of Ex. P. 2. P. W. 2's evidence is interested witness. No reliance can be placed on it. ( 11 ) THE burden was on the plaintiff to prove the transaction. He should have, when the defendant denied the transaction and signature of B. Subbaiah on the document Ex. P. 2, got the disputed signatures of B. Subbaiah which were said to be on Ex. P. 2, compared, examined and attested with the admitted signatures on documents Exs. P. 7 to P. 74. The plaintiff-respondent did not discharge this burden. The plaintiff-respondent did not apply for signatures being examined and compared by experts nor he got experts' commission issued. Defendants-appellants when moved the application for experts' evidence for being taken and disputed signatures being sent to experts for examination and comparison, the plaintiff-respondent opposed and got that application rejected, while that gives or creates a circumstantial evidence by the own conduct of the plaintiff that he was not sure that the signatures under Ex. P. 2, were the genuine signatures of B. Subbaiah. The Trial Court in its assessment tried to act as an expert and started comparing the signatures and then recorded findings. In my opinion the Trial Court was not justified to act as an expert and to record finding merely by the basis of its own eye examination by comparison of the signatures that are contained in Ex. P. 2, that is, disputed signatures and those admitted signatures contained in Exs. P. 7 to P. 74. No doubt Court has to arrive at a finding about signatures on Ex. P. 2, that is, disputed signatures and those admitted signatures contained in Exs. P. 7 to P. 74. No doubt Court has to arrive at a finding about signatures on Ex. P. 2, but it has to arrive at and record its finding as to: Whether disputed signatures are of the person, who is alleged to have executed the document, after having examined and considered the evidence produced by the parties. Even it has jurisdiction to call upon the party concerned to put his signature admittedly, before the Court or to place admitted signatures of the person concerned, who is alleged to have signed the disputed document for comparison under Section 73 of the evidence Act, but, comparison here means not comparison by Court itself, but, by experts,. e. , the person, who is an expert in the matter of the comparing the signatures and giving opinion and to further call for report of handwriting and finger expert. It is after the experts have submitted report and other evidence has been examined, by the parties then Court has to examine and appreciate the evidence including evidence furnished by and in the form of experts' report. No doubt if there is conflicting expert's evidence, the Court has to also apply its mind looking to the documents and has to accept either parties' evidence on that point, but without getting assistance of the expert's report and evidence, and of the evidence of the witness, who has alleged to have seen the executant to sign the documents, the Court itself ought not to have by itself played the role of an expert. ( 12 ) IT will be relevant to quote that Section 45 of the Evidence Act which provides and reads as under: "45. Opinions of experts.--When the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant fuels. Such persons are called experts". (emphasis supplied) section 47 is also material, relevant and it reads as under: "47. Such persons are called experts". (emphasis supplied) section 47 is also material, relevant and it reads as under: "47. Opinion as to handwriting, when relevant.--When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact. Explanation.--A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him". No doubt evidence of expert is not conclusive by itself but is evidence of a material fact to be established to assist the Court to arrive at a finding. Court cannot take upon itself ordinarily a job or role of an expert. When I so observe I find support for the view from the decisions of the privy Council in the case of Kessarbai v Jethabai Jivan, their Lordships observed as under: "the learned Chief Justice in the meanwhile in the Appellate Court discovered a conclusive fact in the endorsements upon the cheque for Rs. 20,000/-, said to have been handed over to keshavlal against the alleged promissory note. On comparing the endorsements with the admitted signatures of Keshavlal, the Chief Justice felt no doubt endorsements were genuine, after having referred to these facts the Court observes; but their Lordships are unable to come to same conclusion as the members of Appellate Court. They would have thought it unsatisfactory and dangerous in any event to stake a decision in such a case as this on the correct determination of the genuineness of a signature by mere comparison with admitted signatures, especially without the aid in evidence of microscopic enlargements or any advise". (emphasis supplied) Thus, their Lordships of the Privy Council had held such a method of comparison of admitted signatures with the disputed signatures without expert's evidence, and opinion, and microscopic examination, to be unsatisfactory and dangerous task and condemned like that. (emphasis supplied) Thus, their Lordships of the Privy Council had held such a method of comparison of admitted signatures with the disputed signatures without expert's evidence, and opinion, and microscopic examination, to be unsatisfactory and dangerous task and condemned like that. ( 13 ) THE Allahabad High Court also expressed the same view in the case of Bhagwan Din v Gouri shankar and Another, Hon'ble Radhir Singh, J. , as he then lays down as under: "learned Judge then compared the disputed signatures with some other admitted signatures of the defendant and came to the conclusion that the two signatures were made by the defendant. He then believed the plaintiff's evidence and decreed the claim. The procedure adopted by the learned Judge cannot be said to be good. It is no doubt open to a Court to express its own opinion about the identity or otherwise of a disputed handwriting or thumb impression but it would not be safe to base a conclusion entirely on such a comparison. It was because of this conclusion of his based on his own comparison that he believed the plaintiff's evidence. The onus of proving that the document had been duly executed by the defendant evidently upon the plaintiff and the plaintiff ought to have led satisfactory evidence to prove that the signatures were made by the defendant. It was no part of the duty of the defendant to call an expert to support his contention. It was obviously the duty of the plaintiff in the first instance to satisfy the Court that the signatures had been affixed by the defendant. It has been observed in two cases of this Court, viz. , Darshan Singh v Parbhu Singh and Azmat Ullah Khan and Another v M. Shiam Lal and another , that it is not desirable that a Judge should take upon himself the task of comparing the signatures in order to find out whether the disputed signatures agree with the other admitted signatures and the proper course is to obtain the opinion of an expert". (emphasis supplied) In that case also the Trial Judge based his finding of his own comparison of disputed signatures with the admitted one and the Allahabad High Court set aside that judgment on that ground. (emphasis supplied) In that case also the Trial Judge based his finding of his own comparison of disputed signatures with the admitted one and the Allahabad High Court set aside that judgment on that ground. The allahabad High Court also followed its earlier decisions, namely, the decision given and the said principle laid down in the cases of Darshan Singh, supra and Azmat Ullah Khan, supra. ( 14 ) THE Full Bench of the Calcutta High Court in Sourendra Mohan Basu v Saroj Ranjan Sarkar, followed with approval the two decisions of the Allahabad High Court, namely, Darshan Singh's case, supra and the decision of the Privy Council referred above and held, that, it is an unsafe way to rely entirely on the personal comparison made by the Judge of admitted and the disputed signatures. ( 15 ) ON the subject of Judge's competence to compare the signature and when it can compare, the view has been expressed in the case of Fakhruddin v State of Madhya Pradesh, as under; the material observations in this regard as are contained in paragraphs 10 and 11 read as under.-- "the Evidence Act also makes relevant the opinion of a handwriting expert (Section 45) or of one who is familiar with the writing of a person who is said to have written a particular writing. Thus, besides direct evidence which is of course the best method of proof, the law makes relevant two other modes. A writing may be proved to be in the handwriting of a particular individual by the evidence of a person familiar with the handwriting of that individual or by the testimony of an expert competent to the comparison of handwritings on a scientific basis. A third method (Section 73) is comparison by the Court with a writing made in the presence of the Court or admitted or proved to be the writing of the person. 11. Both under Section 45 and Section 47 the evidence is an opinion, in the former by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experience. In either case the Court must satisfy itself by such means as are open that the opinion may be acted upon. 11. Both under Section 45 and Section 47 the evidence is an opinion, in the former by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experience. In either case the Court must satisfy itself by such means as are open that the opinion may be acted upon. One such means open to the Court is to apply its own observation to the admitted or proved writings and to compare them with the disputed one, not to become an 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. This comparison depends on an analysis of the characteristics in the admitted or proved writings and the finding of the same characteristics in large measure in the disputed writing. In this way the opinion of the deponent whether expert or other is subjected to scrutiny and although relevant to start with becomes probative. 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 by the same person. This is not to say that the Court must play the role of an expert but to say that the Court may accept the fact proved only when it has satisfied itself on its own observation that it is safe to accept the opinion whether of the expert or other witness". The Court has specified in which situation Court may compare, but in this case, it has not been laid down that without obtaining evidence of expert, Court can itself take the role of expert. ( 16 ) IN the latter decision in the case of State (Delhi Administration) v Pall Ram, their Lordships dealing with the subject in paragraphs 24 and 25, have laid down as under: "a sample writing taken by the Court under the second paragraph of Section 73, is, in substance and reality, the same thing as "admitted writing" within the purview of the first paragraph of section 73, also. The first paragraph of the section, as already seen, provides for comparison of signature, writing, etc. 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 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 or by the Court. The two paragraphs of the section are not 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 enable 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". (emphasis supplied) ( 17 ) 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 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. It would, therefore, not be fair to approach the opinion 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 comparison with the disputed signatures with admitted signature with the assistance of the expert's evidence and not on simply its own comparison. ( 18 ) LEARNED Counsel for the respondent made reference to a decision of this Court in the case of maria Piedade D'souza v M. Naray-anaswamy and Another. The case is of not much help to the respondent. In the case it has been laid down that: Where experts differ, ultimately the Court has to form its opinion on the basis of the entire evidence and Court would be competent to compare the signature and writing under Section 73 of the Evidence Act. The case is of not much help to the respondent. In the case it has been laid down that: Where experts differ, ultimately the Court has to form its opinion on the basis of the entire evidence and Court would be competent to compare the signature and writing under Section 73 of the Evidence Act. ( 19 ) IT cannot be denied when there are conflicting evidences including that of the experts, it is the job of the Court to come to a conclusion on question of disputed signature on basis of evidence on record including that of expert's evidence, but, the Court has not to act as an expert by comparing the two signatures admitted and disputed and to record its findings, on its own view without taking or getting assistance of any expert's evidence or other material evidence under Section 47. Here in the present case, Court has acted contrary to the above principles of law. It has also not been shown that accounts referred were regularly kept, so, were inadmissible. Thus considered, in my opinion, the finding of the Court below on the merits of the case and merit of the transaction is erroneous and the judgment and decree of the Trial Court deserves to be set aside. The appeal is allowed with costs. The decree passed by the Trial Court is hereby set aside.