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2005 DIGILAW 621 (PNJ)

Rupinder Singh v. Sajjan Singh Alias Balbir Singh

2005-05-19

M.M.KUMAR

body2005
Judgment M.M.Kumar, J. 1. This is defendants appeal filed under Section 100 of the Code of Civil Procedure, 1908 challenging concurrent findings of facts recorded by both the Courts below holding that defendant-appellant No. 1 Rupinder Singh had entered into an agreement to sell the suit land for Rs. 91,000/- and had received Rs. 20,000/- in cash on 20.1.1994. It has further been found that the sale-deed was to be executed by 1.3.1994. 2. The plaintiff-respondent had filed a suit initially for permanent injunction restraining the defendant-appellant from alienating the suit land to any other person. When the defendant-appellant No. 1 alienated the suit property to defendant-respondent No. 2 and the cause of action for claiming specific performance had also arisen after 1.3.1004 then the plaintiff respondent got amended his suit and converted the same for specific performance of the contract. The plaintiff-respondent has been found to be ready and willing to perform his part of the contract. As a consequence of the afore-mentioned finding the suit of the plaintiff-respondent has been decreed and the sale-deed Ex.D-16 dated 15.2.1994 executed by the defendant appellant No. 1 in favour of defendant-appellant No. 2 who is his real sister has been found to be illegal as it is found to be hit by the principle of lis pendence because the same was executed during the pendency of the civil suit. Accordingly, the defendant-appellant No. 1 has been directed to execute the sale-deed of the suit land in favour of the plaintiff-respondent after receiving the balance sale consideration of Rs. 77,000/-. Usual directions for execution of the sale-deed through the Court has also been given. The agreement to sell Ex.PW2/A has been found to be duly signed by the defendant-appellant No. 1 and the plea of fabrication raised by him has not been accepted. The report of the expert with regard to the signatures of defendant-appellant No. 1 has been rejected. It is pertinent to mention that the expert Arvind Sood in his report has concluded that it was a case of copying forgery. The views of the appellate Court with regard to report of handwriting expert read as under: "... The report of the expert with regard to the signatures of defendant-appellant No. 1 has been rejected. It is pertinent to mention that the expert Arvind Sood in his report has concluded that it was a case of copying forgery. The views of the appellate Court with regard to report of handwriting expert read as under: "... After perusal of the whole report given by the hand-writing expert, though there is specific opinion of the expert that it is case of copying forgery, but while facing the cross-examination this witness has failed to explain that how forger who is copying the standard signatures must not try to follow the write the words as per the outlets of the standard signatures. Moreover, it is relevant to mention here that from the documents on the record like Ex.P-5 dated 16.4.1992, which is admittedly executed by the defendant No. 1 in favour of the plaintiff bears the signatures of defendant No. 1 Rupinder Singh. Similarly, the power of attorney Ex.D-1 which is alleged to be executed by the defendant Rupinder Singh in favour of Jasmail Kaur after filing the suit also bears the signatures of defendant-Rupinder Singh. The statements of Rupinder Singh dated 14,9.1998, 8.10.3998 and 17.11.1998 are also bearing the signatures of defendant Rupinder Singh. A perusal of these signatures clearly shows that the said Rupinder Singh is in the habit of putting different signatures on different occasions. Rather it is relevant to mention here that when the different documents were put to the defendant No. 2 who is the real sister of defendant No. 1 Rupinder Singh, she failed to identify the signatures of Rupinder Singh even on the statements as well as on different documents. Meaning thereby that even the family member of Rupinder Singh was not in a position to identify the signatures of Rupinder Singh on different documents. Rather the signatures of Rupinder Singh on his statements clearly prove that while putting his signatures on his statements he was more vigilant and he did not put his signatures as he usually used to do so... in the present case it is the specific opinion of the hand-writing and finger print expert Sh. Rather the signatures of Rupinder Singh on his statements clearly prove that while putting his signatures on his statements he was more vigilant and he did not put his signatures as he usually used to do so... in the present case it is the specific opinion of the hand-writing and finger print expert Sh. Arvind Sood that he has compared the questioned signatures Ql to Q4 with the standard signatures since it were available to him and he did not obtain the other specimen signatures of Rupinder Singh nor he ever applied to the Court. The standard signatures of defendant No. 1 Rupinder Singh which he has himself admitted on the sale-deed Ex.P-5 and also on the power of attorney Ex.D-1 and on the statements made by Rupinder Singh in the Court also did not tally with the standard signatures on the basis of which the handwriting expert gave the report Ex.D-3. Moreover, it is settled law that the Courts are not supposed to follow and bound by similar opinion as of the expert, but the Courts have to form its independent opinion after considering the opinion of the expert and other corroborative and circumstantial evidence on the record. In the present case the circumstantial evidence does not favour to the defendant No. 1. The documents which have been on record and the execution of which has been admitted by the defendant No. 1 in favour of the plaintiff and in favour of the defendant No. 2 also speaks about the habit of defendant No. 1 putting different signatures on different occassions on different documents. Moreover, the defendant No. 1 has failed to explain when he used to put his signatures in English and Punjabi and what were the circumstances which compelled him to put his signatures on sale-deed Ex.D-18 in Hindi which was executed on 15.2.1994 in favour of his own sister defendant No. 2 Mohinder Kaur. His putting on signatures in Hindi on the sale deed Ex.D-18 in favour of the defendant No. 2 itself speaks the truth that he was not even willing to execute the sale-deed in favour of the plaintiff and even during the pendency of the suit he executed the sale-deed in favour of his sister defendant No. 2 Mohinder Kaur." 3. His putting on signatures in Hindi on the sale deed Ex.D-18 in favour of the defendant No. 2 itself speaks the truth that he was not even willing to execute the sale-deed in favour of the plaintiff and even during the pendency of the suit he executed the sale-deed in favour of his sister defendant No. 2 Mohinder Kaur." 3. Shri R.C. Setia, learned senior Counsel has argued that the expert report could not be discarded merely on the ground that standard signatures of defendant-appellant No. 1 were not available when demanded by him. According to the learned Counsel the signature on the agreement to sell dated 20.1.1994 are not authentic and the opinion given by the expert should not have been accepted. 4. Having heard the learned Counsel I am of the considered view that no interference in the findings recorded by the two Courts would be warranted. There are categorical findings that defendant-appellant No. 1 has executed agreement to sell dated 20.1.194 and the sale-deed was required to be executed on or before 1.3.1994. It has further been proved that defendant-appellant No. 1 received a sum of Rs. 20,000/- as earnest money as against the total consideration of Rs. 91,000/- settled between the parties. In his effort to defeat the right of the plaintiff-respondent, defendant-appellant had executed sale-deed on 15.2.1994 after the institution of the suit in favor of his real sister which has been set aside on the plea of principle of lis pendence contemplated by Section 52 of the Transfer of Property Act, 1882. These are pure findings of facts which would not warrant interference of this Court in exercise of jurisdiction under Section 100 of the Code. No question of law infact has been raised. 5. The only argument with regard to rejection of the report of expert raised by the counsel for the defendant-appellant would not require any detailed consideration because on fact it has been proved that defendant-appellant No. 1 is in the habit of signing differently in different language on different occasions. It has been shown that defendant No. 2 who is sister of defendant-appellant No. 1 herself was not able to identify and recognise the signatures of her brother. The Courts below have referred to power of attorney Ex. It has been shown that defendant No. 2 who is sister of defendant-appellant No. 1 herself was not able to identify and recognise the signatures of her brother. The Courts below have referred to power of attorney Ex. D-l which is allegedly executed by defendant-appellant No. 1 in favour of Jasmail Kaur after the filing of the suit which bears his signatures. His statements dated 14.9.1998, 8.10.1998 and 17.11.1998 highlight the fact that defendant-appellant is in the habit of putting different signatures on different occasions. On these documents the real sister of defendant-appellant No. 1 failed to identify the signatures of her brother. It is in this context that the question of rejection of expert report has been examined. The question of signatures of defendant-appellant is a question of fact and the same cannot be gone into at the stage of second appeal. Moreover, the opinion of the handwriting expert is not the only method of proving handwriting of a person nor it is conclusive. The Court is clothed with the power to form an opinion in respect of hand-writing either on the basis of the opinion of expert or by the comparison by the Court itself. In this regard reference may be made to the view taken by the Supreme Court in the case of Fakrudin v. State of M.P., A.I.R. 1967 S.C. 1326, The view becomes explicit from paras 10 and 11 of the judgment in which reference has been made to Sections 44, 47 and 73 of the Indian Evidence Act, 1872 and the same reads as under: "Evidence of the identify (identity ?) of handwriting receives treatment in three sections of the Indian Evidence Act. They are Sections 45, 47 and 73. Handwriting may be proved on admission in whose presence he wrote. This is direct evidence and if it is available the evidence of any other kind is rendered unnecessary. The Evidence Act also makes relevant the opinion of handwriting expert (Section 45) or of one 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 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. 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 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. 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 characteristic 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 experts 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 on its own observation that it is safe to accept the opinion whether of the expert or other witnesses." From the perusal of the aforementioned principles it is evident that the opinion of the ex-pert is always subject to the satisfaction of the Court. It is not always safe to accept the I opinion. It is not always safe to accept the I opinion. In the present case numerous doubts have been raised with regard to the habit of defendant-appellant No. 1 as he has been signing differently on different occasions and different languages. The rejection of the expert report in that context cannot be held to be unwarranted. Therefore, there is no substance in the plea raised by the learned Counsel and the same is rejected No other argument has been raised. For the reasons stated above, this appeal fails and the same is dismissed.