JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard S.K.Mishra, Advocate and Sri Shri Kant, Advocate for the respective parties. 2. These are two appeals arising out of a common judgment of IIIrd Additional District Judge, Fatehpur in Civil Revision No. 81 of 1997 and therefore, as agreed by learned counsel for the parties, have been heard together and are being decided by this common judgment. 3. The plaintiff Om Prakash instituted original suit No. 158 of 1974 vide plaint dated 8.4.1974 for specific performance of contract pursuant to agreement dated 21st January, 1970 for purchase of shop owned by Sri Baij Nath Singh, defendant-respondent for a total sum of Rs. 5,000/- whereagainst Rs. 3,000/- as earnest money was already paid. It was alleged that plaintiff had always been ready to perform his part of contract and the cause of action arose on 24th March, 1974 when defendant declined to execute sale-deed. 4. The suit was contested by defendant with averments that there could not have been any contract with the plaintiff, he being minor on 21.1.1970, and was incapable of enforcing such agreement; the defendant never agreed to sell his shop nor executed agreement dated 21.1.1970 nor received any money towards advance as alleged in the plaint. 5. The Trial Court framed following four issues: ^^1&Dk oknh fnukad 21&01&70 dks vko';drk ds vk/kkj ij fodz; dk djkj ;fn dksbZ fd;k x;k gks] djus ds fy, l{ke ugh Fkk\ 2& D;k izfroknh fookfnr nqdku dks :0 5000@&esa oknh dks fodz; djus ds laca/k esa dksbZ djkj fd;k Fkk rFkk fnukWad 21&1&70 dks mlus djkjukek fu"ikfnr fd;k \ 3& D;k dCtk oknh dk gS \ 4& oknh D;k fdlh vuqrks"k ds izkIr djkus dk vf/kdkjh gS \^^ “1. Whether plaintiff, being a minor as on 21.1.1970 was not competent to enter into any sale-deed, if executed ? 2. Whether defendant had entered into an agreement with plaintiff for sale of shop in dispute at the cost of Rs. 5,000/- and executed a deed on 21.1.1970. 3. Whether plaintiff has possession over it ? 4. Whether plaintiff is entitled to get any relief ?” (English Translation by the Court) 6. Both issues No. 1 and 2 were decided against plaintiff and issue No. 3 in respect to possession of shop in question thus was decided against him. The suit accordingly was dismissed by judgment and decree dated 4th March, 1977. 4. Whether plaintiff is entitled to get any relief ?” (English Translation by the Court) 6. Both issues No. 1 and 2 were decided against plaintiff and issue No. 3 in respect to possession of shop in question thus was decided against him. The suit accordingly was dismissed by judgment and decree dated 4th March, 1977. Aggrieved thereto, plaintiff preferred Civil Appeal No. 81 of 1977. The lower Appellate Court found that there was manifest error on the part of Trial Court in treating plaintiff minor though he had clearly given his age 25 years on the date of filing suit and further observed that if the age of plaintiff was not admitted to the defendant, he was to prove his claim and onus could not have been shifted to plaintiff. On the question of execution of agreement, he recorded a finding in favour of plaintiff but then considering discretionary remedy in the matter of specific performance, declined to decree the suit for specific performance of contract but directed refund of advance money to the plaintiff and in the circumstances, appeal of plaintiff was partly allowed and judgment of Trial Court was modified to the extent of refund of Rs. 3,000/- to the plaintiff Om Prakash. 7. The plaintiff and defendant both have filed present two appeals to the extent judgment of lower Appellate Court has gone against them. 8. Besides, defendant-respondent has also filed cross objection in appeal No. 2291 of 1978 of plaintiff-appellant. This Court formulated following question of law in appeal preferred by plaintiff-appellant: “Whether Court below has rightly refused the relief for specific performance of the contract?” 9. In the appeal preferred by defendant-appellant this Court formulated following substantial question of law: “Whether the Court below was justified in granting the relief for recovery of Rs. 3,000/- on the basis of evidence on which it has rejected the relief for specific performance of agreement.” 10. In the plaint, plaintiff has described himself mentioning his age as 25 years at the time of filing suit. The plaint is dated 8th April, 1974. In the description of respondent-defendant, age of defendant Baij Nath is mentioned as 60 years. In 1970, the plaintiff, therefore, would have been 20 or 21 years of age. In the plaint, plaintiff has described himself mentioning his age as 25 years at the time of filing suit. The plaint is dated 8th April, 1974. In the description of respondent-defendant, age of defendant Baij Nath is mentioned as 60 years. In 1970, the plaintiff, therefore, would have been 20 or 21 years of age. In the written statement, in para 12, the defendant disputed the age of plaintiff as 25 years and said that he is less than 21 years and at the time of alleged agreement, he was a minor. He also disputed execution of agreement dated 21.1.1970, receipt of Rs. 3000/- towards earnest money and also said that he never gave possession of shop in dispute to plaintiff but the possession is still with him. With respect to agreement dated 21.1.1970, he stated in para 15 of written statement that document is forged and fictitious having forged signature of defendant and he has never signed the same. 11. However, it has not been pleaded in the entire written statement that defendant is not owner of shop in dispute. The Trial Court did not frame any issue as to whether plaintiff was minor on 21.1.1970 or not. The issue No. 1 framed by it was totally different namely whether plaintiff was competent to enter into an agreement on 21.1.1970 on account of minority in age. In absence of any issue with respect to age of plaintiff, the Trial Court obviously could not have expected the plaintiff to adduce evidence to prove his age. The plaintiff’s age was disputed by defendant and onus, therefore, lie upon defendant to prove this fact, failing which, it is he who would have suffered and statement of fact of defendant would have to fail. 12. It is true that defendant is not supposed to possess any evidence with respect to age of plaintiff but then he was under an obligation to adduce reliable evidence so as to justify his stand of disputing the age of plaintiff, inasmuch as, statement of fact within the personal knowledge of plaintiff, if sought to be disputed by defendant, then it is the defendant who has to place credible evidence on record so as to justify an inference that any person of ordinary prudence could have made such a statement as made by defendant. The defendant ought to have disclosed material whereupon he could, bona fide, raise doubt over the age of plaintiff. 13. In the cross objection, defendant instead of referring to any reliable material stated that according to his own estimate, he mentioned about the age of the plaintiff. His opinion was of no value in the eyes of law, he being not an expert on the subject. The lower Appellate Court on this aspect has discussed the matter further observing that Principal of school in which plaintiff had studied was defendant’s own daughter’s son and that be so, it was quite convenient for him to collect credible evidence about the age of plaintiff but he did not make any such attempt. 14. Having said so, and recording a finding in favour of plaintiff-appellant about age that he was major on the date of agreement, since the defendant failed to substantiate his stand, lower Appellate Court has simply recorded a pure finding of fact discussing material on record in a very rational manner and therefore, he has rightly reversed findings of Trial Court. Issue No. 1 that plaintiff was not competent to enter into a contract on 21.1.1970 on account of his age has been decided in favour of plaintiff by holding that he was major and therefore, was competent to do so and I find no patent illegality therein. 15. Now, comes the question about execution of agreement dated 21.1.1970 which was denied in toto by defendant and issue No. 2, in this regard, was decided by Trial Court in favour of defendant. This Court finds that two hand writing experts submitted their opinion in respect to signature on exhibit 2 i.e. agreement dated 21.1.1970. Sri C.R. Hardless, PW-1 gave his opinion that signature is that of defendant. Another hand writing expert Pradeep Kumar Tripathi, DW-2, gave opinion otherwise. 16. When there are contradictory opinion of hand writing experts, it is always open to the Court concerned to form its opinion after careful consideration of expert’s opinion as also document concerned. Sri C.R. Hardless, PW-1 gave his opinion that signature is that of defendant. Another hand writing expert Pradeep Kumar Tripathi, DW-2, gave opinion otherwise. 16. When there are contradictory opinion of hand writing experts, it is always open to the Court concerned to form its opinion after careful consideration of expert’s opinion as also document concerned. It is not uncommon where two experts employed by different parties gave opinion, heavily influenced by the interest of the party concerned who approach them and it is matter of great concern also that these experts, instead of adhering to their professional expertise with absolute impartiality, unfortunately lean and get influenced and biased by interest of the party, who approach and seek their opinion. 17. The deformity in the functioning of experts is not new. Historically also the Courts have come across it and made their observation. It is not uncommon where Experts’ opinion used to get influenced by their closeness or otherwise relationship developed with the persons who receive their service. 18. However, and in any case evidence of an expert is only an opinion. Expert evidence is only a piece of evidence and external evidence. It has to be considered alongwith other pieces of evidence. Which would be the main evidence and which is the corroborative one depends upon the facts of each case. An expert’s opinion is admissible to furnish the Court a scientific opinion which is likely to be outside the experience and knowledge of a Judge. This kind of testimony, however, has been considered to be of very weak nature and expert is usually required to speak, not to facts, but to opinions. It is quite often surprising to see with what facility, and to what extent, their views would be made to correspond with the wishes and interests of the parties who call them. They do not, indeed, wilfully misrepresent what they think, but their judgment becomes so warped by regarding the subject in one point of view, that, when conscientiously deposed, they are incapable of expressing a candid opinion. 19. In Ramesh Chandra Agrawal v. Regency Hospital Ltd. and others, JT 2009 (12) SC 377, Apex Court considered the issue pertaining to expert opinion in a bit detail. 19. In Ramesh Chandra Agrawal v. Regency Hospital Ltd. and others, JT 2009 (12) SC 377, Apex Court considered the issue pertaining to expert opinion in a bit detail. In para 11, the Court has said: “The law of evidence is designed to ensure that the Court considers only that evidence which will enable it to reach a reliable conclusion. The first and foremost requrement for an expert evidence to be admissible is that it is necessary to hear the expert evidence. The test is that the matter is outside the knowledge and experience of the lay person. ... The scientific question involved is assumed to be not with the Court’s knowledge. Thus cases where the science involved, is highly specialised and perhaps even esoteric, the central role of expert cannot be disputed. The other requirements for the admissibility of expert evidence are: i. that the expert must be within a recognised field of expertise ii. that the evidence must be based on reliable principles, and iii. That the expert must be qualified in that discipline.” 20. The Court has also said that in order to bring the evidence of a witness as that of an expert it has to be shown that he has made a special study on the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge on the subject. Referring to this Court’s decision in Mt. Titli v. Alfred Robert Jones, AIR 1934 All 273, the Court said that it is not the province of the expert to act as Judge or Jury. The real function of the expert is to put before the Court all the materials, together with reasons which induce to come to the conclusion, so that the Court, although not an expert, may form its own judgment by its own observation of those materials. Again in para 15 of the judgment in Ramesh Chandra Agrawal (Supra), the Court said: “An expert is not a witness of fact and his evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of these criteria to the facts proved by the evidence of the case. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of these criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration alongwith other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusions. (See Malay Kumar Ganguly v. Dr. Sukumar Mukherjee and others) Criminal Appeal Nos. 1191-1194 of 2005 alongwith Civil Appeal No. 1727 of 2007, decided on 7.8.2009.” 21. It also referred to an earlier decision in The State (Delhi Administration) v. Pali Ram, AIR 1979 SC 14 , where the Court said “No expert would claim today that he could be absolutely sure that his opinion was correct, expert depends to a great extent upon the materials as put before him and the nature of question put to him” and further in para 17 of the judgment in Ramesh Chandra Agrawal (supra) the Court said: “In the Article “Relevancy of Expert’s Opinion” it has been opined that the value of expert opinion rest on the facts on which it is based and his competency for forming a reliable opinion. The evidentiary value of the opinion of expert depends on the facts upon which it is based and also the validity of the process by which the conclusion is reached. Thus the idea that is proposed in its crux means that the importance of an opinion is decided on the basis of the credibility of the expert and the relevant facts supporting the opinion so that its accuracy can be cross checked. Therefore, the emphasis has been on the data on basis of which opinion is formed. The same is clear from following inference: Mere assertion without mentioning the data or basis is not evidence, even if it comes form expert. Where the experts give no real data in support of their opinion, the evidence even though admissible, may be excluded from consideration as affording no assistance in arriving at the correct value.” (emphasis added) 22. The same is clear from following inference: Mere assertion without mentioning the data or basis is not evidence, even if it comes form expert. Where the experts give no real data in support of their opinion, the evidence even though admissible, may be excluded from consideration as affording no assistance in arriving at the correct value.” (emphasis added) 22. Musheer Khan @ Badshah Khan and another v. State of Madhya Pradesh, AIR 2010 SC 762 , is a very recent judgment where the Court has said “under the Evidence Act the word ‘admissibility’ has very rarely been used. The emphasis is on relevant facts. In a way relevancy and admissibility have been virtually equated under the Indian Evidence Act.” Further referring to the opinion of finger print expert in that matter it says, that, it is well known that the evidence of finger print expert falls under the category of expert evidence under Section 45 but it is also clear that this evidence of finger print expert is not substantive evidence. Such evidence can only be used to corroborate some items of substantive evidence which are otherwise on record. 23. Lord Campbell in Tracy Perrage Case (1843) 10 CI & F 154 said that, being zealous partisans, their belief becomes synonymous with faith as defined by the Apostle, and it too often is but “the substance of things hoped for, the evidence of things not seen”. He also said that, skilled witnesses come with such a bias on their minds to support the cause in which they are embarked, that hardly any weight may be given to their evidence. 24. Miller J in Middllings P Co. v. Christian, 4 Dillon 448, said, “By own experienced both in the local Courts and in the Supreme Court of the United States is, that whenever the matter in contest involves an immense sum in value, and when the question turns mainly upon opinions of experts, there is no difficulty in introducing any amount of them on either side.” 25. This is what I find here also. Both sides have produced their own experts giving diametrically opposite opinion. It would be useful to quote from Sarkar’s Law of Evidence, 16th Edition, 2007 Vol. This is what I find here also. Both sides have produced their own experts giving diametrically opposite opinion. It would be useful to quote from Sarkar’s Law of Evidence, 16th Edition, 2007 Vol. 1, page 1052 : “The infirmity of expert evidence consists in this that it is mostly matters of opinion and is based on facts detailed by others or assumed facts or opinion against opinion and experts are selected by parties by ascertaining previously that they will give an opinion favourable to the party calling them. Expert evidence is however, of value in cases where the Courts have to deal with matters beyond the range of common knowledge and they could not get alongwithout it, eg in matters of scientific knowledge or when the facts have come within the personal observation of experts.” 26. The learned author on page 1053 (supra) also said, An expert is fallible like all other witnesses and the real value of his evidence consists in the logical inferences which he draws from what he has himself observed, not from what he merely surmises or has been told by others. Therefore in cross-examining him, it is advisable to get at the grounds on which he bases his opinion. There is special difficulty in dealing with the evidence of expert witnesses. Such evidence must always be received with caution; they are two often partisans-that is, they are reluctant to speak quite the whole truth, if the whole truth will tell against the party who had paid them to give evidence. At the same time such witnesses are in a position of advantage; for they have had that special training and experience which the judge and jury are without; and the absence of which renders necessary the presence of such witness. Expert witnesses are far too prone to take upon themselves the duty of deciding the questions in issue in the action, instead of confining themselves to stating fairly and clearly their real opinion on the matter. 27. In Gulzar Ali v. State of Himachal Pradesh, 1998 (2) SCC 192 , the Court observed that the observation of the High Court that there is a natural tendency on the part of an expert witness to support the view of the party who called him, could not be downgraded. 27. In Gulzar Ali v. State of Himachal Pradesh, 1998 (2) SCC 192 , the Court observed that the observation of the High Court that there is a natural tendency on the part of an expert witness to support the view of the party who called him, could not be downgraded. Many so-called experts have been shown to be remunerated witnesses making themselves available on hire to pledge their oath in favour of the party paying them. 28. In Hari Singh v. Lachmi, 59 IC 220, the Court observed that the evidence of skilled witness, howsoever eminent, as to what he thinks may, or may not have taken place under a particular combination of circumstances, howsoever confidently he may speak, is ordinarily a matter of mere opinion. Human judgment is fallible. Human knowledge is limited and imperfect. An expert witness howsoever impartial he may wish to be, is likely to be unconsciously prejudiced in favour of the side which calls him. The mere fact of opposition on the part of the other side is apt to create a spirit of partisanship and rivalry, so that an expert witness is unconsciously impelled to support the view taken by his own side. Besides it must be remembered that an expert is often called by one side simply and solely because it has been ascertained that he holds views favourable to its interests. 29. In Lalta Prasad v. Emperor, 5 IC 355, the Judicial Commissioner, Oudh observed : “Expert testimony derived from comparison of handwriting is no doubt very valuable as evidence corroborating the direct evidence if any upon the point, but it is only in rare cases that it can take its place.” 30. A Single Judge of this Court also expressed the same opinion in Saqlain Ahmad v. Emperor, AIR 1936 All 165, observing : “The value of the expert evidence depends largely on the cogency of the reasons on which it is based. In general it cannot be the basis of conviction unless it is corroborated by other evidence.” 31. Hon’ble Subba Rao (C.J.) (as His Lordship then was) in Guntaka Hussenaiah v. Busetti Yerraiah, AIR 1954 Andhra 39, said : “The expert’s evidence is only a piece of evidence. A Judge of fact will have to consider that evidence alongwith the other pieces of evidence. Hon’ble Subba Rao (C.J.) (as His Lordship then was) in Guntaka Hussenaiah v. Busetti Yerraiah, AIR 1954 Andhra 39, said : “The expert’s evidence is only a piece of evidence. A Judge of fact will have to consider that evidence alongwith the other pieces of evidence. Which is the main evidence and which is the corroborative one depends upon the facts of each case.” (emphasis added) 32. In Magan Bihari Lal v. State of Punjab, AIR 1977 SC 1091 , the Court held that it is now well-settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a Handwriting Expert. This type of evidence, being opinion evidence, is by its very nature, weak and infirm. 33. The caution, the Court must exercise while considering opinion rendered by an expert is expressed in Murarilal v. State of M.P., AIR 1980 SC 531 , where the Court held: “But, the hazard in accepting the opinion of any expert, handwriting expert or any other kind of expert, is not because experts, in general, are unreliable witnesses-the quality of credibility or incredibility being one which an expert shares with all other witnesses-, but because all human judgment is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion. The more developed and the more perfect a science, the less the chance of an incorrect opinion and the converse if the science is less developed and imperfect. The science of identification of finger-prints has attained near perfection and the risk of an incorrect opinion is practically non-existent. On the other hand, the science of identification of handwriting is not nearly so perfect and the risk is, therefore, higher. An expert deposes and not decides. His duty is to furnish the judge with the necessary scientific criteria for testing the accuracy of his conclusion, so as to enable the judge to form his own independent judgment by the application of these criteria to the facts proved in evidence’.” (Para 4) “Reasons for the opinion must be carefully probed and examined. ... In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of an handwriting expert may be accepted. ...” (Para 11) 34. ... In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of an handwriting expert may be accepted. ...” (Para 11) 34. In State v. Kanhu Charan Barik, 1983 Cr LJ 133, a Division Bench of Orissa High Court held : “Evidence of experts after all is opinion evidence. The opinion is to be supported by reasons. The Court has to evaluate the same like any other evidence. The reasons in support of the opinion, if convincing, make the opinion acceptable. There is no place for ipse dixit of the expert. It is for the Court to judge whether the opinion has been correctly reached on the data available and for the reasons stated.” (emphasis added) 35. In Forest Range Officer and others v. P. Mohammed Ali and others, AIR 1994 SC 120 , it was observed : “The expert opinion is only an opinion evidence on either side and does not aid us in interpretation.” 36. It would be prudent to quote the following passage from Taylor’s Law of Evidence, page 1344, para 1877 about the admissibility of evidence of experts : “Still as experts usually come with a bias on their minds to support the cause in which they are embarked, little weight will in general be attached to the evidence which they give, unless it be obviously based on sensible reasoning.” 37. In Mt. Titli v. Alfred Robert Jones, AIR 1934 All 273, it was observed: “The opinion of an expert by itself may be relevant but would carry little weight with a Court unless it is supported by a clear statement of what he noticed and on what he based his opinion. The expert should, if he expects his opinion to be accepted, put before the Court all the materials which induced him to come to his conclusion, so that the Court, although not expert, may form its own judgment on those materials. ... The mere mention that certain kind of tests knows as Binet and Simon tests were applied and certain results were obtained, might be relevant as piece of evidence but would not be conclusive.” (emphasis added) 38. ... The mere mention that certain kind of tests knows as Binet and Simon tests were applied and certain results were obtained, might be relevant as piece of evidence but would not be conclusive.” (emphasis added) 38. In Palaniswamy Vaiyapuri v. State, AIR 1968 Bom 127 , a Division Bench of Bombay High Court in para 11 of the judgment said : “The opinion of an expert must be supported by reasons and it is the reasons and not ipse dixit which is of importance in assessing the merit of the opinion.” 39. In Sita Nath Basak v. Mohini Mohan Singh, AIR 1924 Cal. 595, a Division Bench of Calcutta High Court observed that in the matter of infringement of copyright, the Court should be reluctant to sit as an expert to decide the question of infringement of copyright and the proper course, in ordinary circumstances, is to get the opinion of experts. This was explained in Government of West Bengal v. Nitya Gopal Basak and others, 1985 Cri LJ 202, by a learned Single Judge of Calcutta High Court that the above view was expressed primarily on the ground that the Court would have to take great pains and would have to waste its valuable time to ascertain how far the piracy extended and it was desirable therefore to seek opinion of expert to compare the works and to ascertain the details to avoid excessive expenditure of time and labour. It was also pointed out that such a course was also necessary as the Court might not be conversant with the alphabets of the book. 40. In the context of opinion of Handwriting Expert, in Fakhruddin (supra), the Court held that the opinion of Handwriting Expert though is relevant in view of Section 45 of the Evidence Act, but that too is not conclusive. Reliance was placed on earlier decisions in Ram Chandra v. State of Uttar Pradesh, AIR 1957 SC 381 (at page 388) and Ishwari Prasad Misra v. Mohammad Isa, AIR 1963 SC 1728 , where it was observed that expert evidence as to handwriting is an opinion evidence and it can rarely, if ever, take the place of substantive evidence. It cannot be conclusive because it is after all opinion evidence. It cannot be conclusive because it is after all opinion evidence. In para 11 of the judgment in Fakhruddin (supra), the Apex Court further observed, 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. 41. In re B. Venkata Row, (1913) 36 Mad 159, a passage from Dr. Lawson’s work on the “Law of Expert and Opinion Evidence” was quoted, which reads : “The evidence of the genuineness of the signature based upon the comparison of handwriting and of the opinion of experts is entitled to proper consideration and weight. It must be confessed however that it is of the lowest order of evidence or of the most unsatisfactory character. We believe that in this opinion experienced laymen unite with the members of the legal profession. Of all kinds of evidence admitted in a Court this is the most unsatisfactory. It is so weak and decrepit as scarcely to deserve a place in our system of jurisprudence.” (emphasis added) 42. This was followed in Indar Datt v. Emperor, AIR 1931 Lah 408. A Similar observation was made by Division Bench of this Court in Srikant v. King Emperor, (1905) 2 ALJ 444 and Kali Charan Mukerji v. Emperor, (1909) 9 Cr.L.J. 498. 43. In Sudhindra Nath v. The King, AIR (39) 1952 Cal. 422, it was observed : “We are now left with the evidence of identification by the hand-writing Expert. With regard to this class of evidence, it is a rule of law that it is extremely unsafe to base a conviction upon the opinion of hand-writing experts. Without substantial corroboration; because it is well known that a comparison of hand-writing as a mode of proof is always hazardous & inconclusive, unless it is corroborated by other evidence.” (emphasis added) 44. Without substantial corroboration; because it is well known that a comparison of hand-writing as a mode of proof is always hazardous & inconclusive, unless it is corroborated by other evidence.” (emphasis added) 44. In Perumal Mudaliar v. South Indian Railway Company Ltd., AIR 1937 Mad 407 , the manner of recording opinion of expert was considered and a Single Judge (Hon’ble Beasley, C.J.) said : “The evidence of experts must be given in the ordinary way. Subject to certain exceptions-those exceptions being amongst others, the certificates of the Imperial Serologist touching the matter of bloodstains and of the Chemical Examiner, which are made admissible in evidence by themselves-it is quite obvious that the opinion of an expert must be given orally and that a report merely or certificate by him cannot possible be evidence. Unless he goes into the witness box and gives oral evidence, there can be no cross-examination of the expert at all.” (emphasis added) 45. In Haji Mohammad Ekramul Haq v. The State of West Bengal, AIR 1959 SC 488 , the Court held that an opinion of expert unsupported by any reason is not to be relied on. 46. In The Forest Range Officer and others v. P. Mohammed Ali and others, AIR 1994 SC 120 , the Court said: “The expert opinion is only an opinion evidence on either side and does not aid us in interpretation.” (para 8) 47. Who an expert witness would be, has been considered in State of Himachal Pradesh v. Jai Lal and others, AIR 1999 SC 3318 and it says: “An expert witness, is one who has made the subject upon which he speaks a matter of particular study, practice; or observations; and the must have a special knowledge of the subject.” (para 13) “Therefore, in order to bring the evidence of a witness as that of an expert it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject.” (para 17) “18. An expert is not a witness of fact. His evidence is really of an advisory character. An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration alongwith the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and materials furnished which form the basis of his conclusions.” “19. The report submitted by an expert does not go in evidence automatically. He is to be examined as a witness in Court and has to face cross-examination.” (emphasis added) 48. In Murari Lal v. State of Madhya Pradesh, 1980 SCC (Cri) 330, it was held that the Court itself can compare writings since it is so enabled vide Section 73 of the Evidence Act. The Expert’s opinion only act as an aid to the Court and not binding on it. In absence of reliable Expert’s opinion or no opinion, the Court can seek guidance from authoritative text books, own experience and knowledge. 49. To the same effect is the decision in Lalit Popli v. Canara Bank and others, (2003) 3 SCC 583 . 50. It is in these facts and circumstances, lower Appellate Court has looked into certain factors: i. Length/expertise of two experts who submitted their opinion. ii. Number of points referred to by two experts to form their opinion. 51. The Court found that PW-1 was working as hand writing expert independently since 1947 while DW-2 after having worked for about three years and five months with another hand writing expert Sri Alexander, and has commenced his independent working for the last about one year. PW-1 based his opinion on 8 points which basically centred around formation and size of words. Besides above, lower Appellate Court considered and compared himself signatures of defendant on the records of Court not only in the suit in question but in some other original suits also, record whereof was available for perusal of lower Appellate Court. PW-1 based his opinion on 8 points which basically centred around formation and size of words. Besides above, lower Appellate Court considered and compared himself signatures of defendant on the records of Court not only in the suit in question but in some other original suits also, record whereof was available for perusal of lower Appellate Court. Thereafter, in the light of the evidence of PW-3 and 4, the Court summed up that earnest money was also given by plaintiff to the defendant on the same date and there was no discrepancy in the evidence of aforesaid two witnesses. Issue No. 2, in the above facts and circumstances and on the basis of sheer assessment of evidence on record has been decided in favour of the plaintiff-appellant, and I find no legal or otherwise flaw or fault in the judgment of lower Appellate Court. 52. Learned counsel appearing for defendant-appellant could not point out any illegally or otherwise infirmity therein or an approach on the part of lower Appellate Court which is legally impermissible. 53. However, in order to deny relief of specific performance of contract, the lower Appellate Court has mainly referred to three aspects: i. It is discretionary relief; ii. Possession of shop not given to plaintiff though mentioned in agreement dated 31.1.1970; and iii. There were a dispute between plaintiff-appellant in respect to possession of shop led to the proceedings under Sections 145 Cr.P.C. wherein sub divisional magistrate found plaintiff being in possession of disputed shop. 54. The question would be, whether lower Appellant Court was justified in declining relief of specific performance for the above reasons. 55. This Court despite repeated query could not find any answer from defendant-appellant as to how factum that possession of shop in dispute was not handed over to the plaintiff even though mentioned in the agreement would justify denial of execution of sale-deed by enforcing agreement to sell dated 21.1.1970. There is so such requirement in law as a condition precedent before granting relief of specific performance of the contract. Therefore, the mere factum that possession of shop in dispute continued with defendant-appellant, in my view, would make no difference. There is so such requirement in law as a condition precedent before granting relief of specific performance of the contract. Therefore, the mere factum that possession of shop in dispute continued with defendant-appellant, in my view, would make no difference. So far as entitlement of plaintiff-appellant for enforcement of agreement to sell is concerned, in the matter of immoveable property, unless parties have mutual faith and confidence, question of handing over of possession will arise on payment of entire consideration to the vendor and prior thereto ordinarily possession is not handed over unless parties among themselves decide otherwise and proceed accordingly. 56. Section 53A of Transfer of Property Act, 1882 (hereinafter referred to as “Act 1882”) though sought to be referred to by learned counsel for the defendant-appellant but I do not find anything therein to take a view in his favour. 57. Section 53A of Act, 1882 reads as under: “Part performance.—Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty : and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof. 58. 58. In order to take shelter behind the above provision, one has to satisfy the following conditions as are evident from bare reading of Section 53A of Act, 1882: (i) The contract should have been in writing, signed by or on behalf of transferor. (ii) The transferee should have got possession of immovable property covered by contract as a part-performance of the contract. (iii) If the transferee is already in possession and he continues in possession in part-performance of the contract, he further should have done some act in furtherance of the contract. (iv) The transferee has either performed his part of contract or is willing to perform his part of the contract. 59. It has been held repeatedly that all the postulates of Section 53A are sine qua none and a party cannot derive benefit by fulfilling only one or more conditions. It must have to satisfy all the conditions altogether. In taking the above view I am fortified by Apex Court’s decisions in FGP Limited v. Saleh Hooseini Doctor and another, (2009) 10 SCC 223 (Paras, 24, 25, 26, 27, 28, 29 and 30), Nanjegowda and another v. Gangamma and others, (2011) 13 SCC 232 (paras 9 to 12 and Shrimant Shamrao Suryavanshi and another v. Prahlad Bhairoba Suryavanshi (D) by Lrs. and others, JT 2002(2) SC 24. 60. In para 17 of the judgment in Shrimant Shamrao Suryavanshi and another (supra) the Court, after noticing various conditions applicable in Section 53A, has said: “We are, therefore, on the opinion that if the conditions enumerated above are complied with, the law of limitation does not come in the way of a defendant taking plea under Section 53-A of the Act to protect his possession of the suit property even though a suit for specific performance of a contract is barred by limitation.” 61. Section 53-A of Act, 1882, in my view contemplates a different situation and has no application in the case in hand. Section 53-A of Act, 1882, in my view contemplates a different situation and has no application in the case in hand. It contemplates a situation and recognise certain rights in a given contingency namely, though a contract, in law, is required to be registered but not registered or instrument of transfer exist, but transfer is not completed in the manner prescribed therefor by the law for the time being enforce, and, if these two conditions exist, what a transferor or transferee can enforce in law or not when there is a part performance of contract is a situation dealt with by Section 53-A. But for the purpose of specific performance of contract, I do not find any relationship there with Section 53A of Act, 1882. 62. Now, so far as last reason assigned by lower Appellate Court for declining relief of specific performance of contract is that, it is discretionary. As a proposition of law, it cannot be doubted but this discretion does not mean whimsical and arbitrary discretion. Section 10 of Specific Relief Act 1963 (hereinafter referred to as Act, 1963") provides cases where, in discretion of Court, specific performance of any contract may be enforced. The two such cases are : “(a) when there exists no standard for ascertaining the actual damage caused by the non-performance of the act agreed to be done; or (b) when the act agreed to be done is such that compensation in money for its non-performance would not afford adequate relief.” 63. The explanation then talks of presumption which the Court has to draw unless and until contrary is proved and it says as under: “Explanation.—Unless and until the contrary is proved, the Court shall presume- (i) that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money; and (ii) that the breach of a contract to transfer movable property can be so relieved except in the following cases : (a) where the property is not an ordinary article of commerce, or is of special value or interest to the plaintiff, or consists of goods which are not easily obtainable in the market; (b) where the property is held by the defendant as the agent or trustee of the plaintiff.” 64. It has been held that once plaintiff seeking enforcement of contract is able to show his readiness and willingness, mere delay or laches would not justify refusal of specific performance of contract. In Ajit Prasad Jain v. N.K. Widhani and others, AIR 1990 Del 42 , the Court said, grant of relief of specific performance is a rule and refusal an exception on valid and cogent grounds shown. This Court in Mt. Gaindo Devi v. Shanti Swarup and others, AIR 1937 All 161, said that jurisdiction to decree specific performance is discretionary, but it must be understood that discretion of Court is not to be arbitrarily exercised but has to be guided by judicial principle. 65. In Hari Krishna Agarwala v. K.C. Gupta, AIR 1949 All 440, a Division Bench said that, mere hardship to the defendant will not affect discretion of the Court in enforcing specific performance of contract. 66. In 1990 (2) AWC 770, this Court took the view that delay by itself would neither amount to waiver nor abandonment nor acquiescence. The facts and circumstances justifying grant or refusal of enforcement of contract and no thumb rule can be pen down but the thing establish in law is that such discretion cannot be arbitrary or whimsical. 67. The Apex Court also considered question about relief of specific performance being discretionary in S.V.R.Mudaliar (Dead) by Lrs. and others v. Rajabu F. Buhari (Mrs) (Dead) by Lrs. and others, JT 1995 (3) SC 614 and observed, if granting of specific performance would make it “inequitable”, the Court may not grant the relief. The discretion is not arbitrary but it must be sound and guided by judicial principles. One of the grounds, that with the passage of time hike in prices of immoveable property would justify denial of enforcement of specific performance of contract, was negated by Apex Court affirming a decision of Madras High Court in S.V.Sankaralinga Nadar v. P.T.S. Ratnaswami Nadar, AIR 1952 Mad 389 and another decision of Andhra Pradesh High Court in Mir Abdul Hakeem Khan v. Abdul Mannan Khadri, AIR 1972 AP 178 , and, the Court said: “...We are in agreement with this view because of the normal trend of rise in prices of properties situate especially in metropolitan city like Madras, where the property in question is situate. If merely because the prices have risen during the pendency of litigation, we were to deny the relief of specific performance if otherwise due, this relief could hardly be granted in any case, because by the time the litigation comes to an end sufficiently long period is likely to elapse in most of the cases. This factor, therefore, should not normally weigh against the suitor in exercise of discretion by a Court in a case of the present nature.” 68. The two reasons assigned by lower Appellate Court to justify discretion exercised against plaintiff-appellant having not found to be correct, in my view, the impugned appellate judgment, to the extent it has denied enforcement of specific performance of contract, has not acted in accordance with law and the impugned appellate judgment, therefore, in this regard cannot sustain. 69. Looking to the discussion made above, substantial question of law framed in defendant’s appeal is thus returned against him. 70. Looking to the discussions, made above, substantial question of law framed in plaintiff’s appeal i.e. Second Appeal No. 2291 of 1978 is answered in his favour and it is held that Court below has erred in law in refusing relief for specific performance of contract. As a natural corollary, question of law framed in defendant’s appeal i.e. Second Appeal No. 2706 of 1979 is returned in favour of plaintiff holding that since declining to enforce specific performance of agreement itself is not correct, question of legality or not with respect to directions for payment of Rs. 3,000/- would not arise. 71. In the result, plaintiff’s appeal No. 2291 of 1978 is allowed. The defendant’s appeal No. 2706 of 1979 as also the cross objection filed are dismissed. The judgment of lower Appellate Court in so far as it has declined to grant relief of specific performance of contract to the plaintiff-appellant is set aside. The matter is remanded to the lower Appellate Court to consider this issue afresh in the light of the observations made above and in accordance with law and pass appropriate order accordingly, but expeditiously. 72. The cost made easy. ——————