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Himachal Pradesh High Court · body

2018 DIGILAW 1963 (HP)

Hem Chand v. Dharam Parkash

2018-11-13

SANDEEP SHARMA

body2018
JUDGMENT : SANDEEP SHARMA, J. 1. Being aggrieved and dissatisfied with order dated 17.8.2017 passed by the learned Civil Judge, Court No.4, Shimla, Himachal Pradesh, in Case No. 3-1 of 17/14, whereby an application having been filed by the petitioners-plaintiffs (hereinafter, ‘plaintiffs’) under S.73 of the Indian Evidence Act, (hereinafter, ‘Act’), praying therein for sending signatures of deceased Tulsi Ram, for comparison to the handwriting expert, came to be dismissed, plaintiffs have approached this court in the instant proceedings, filed under Article 227 of the Constitution of India, praying therein to allow their application and send signatures of Tulsi Ram for comparison to the handwriting expert. 2. Briefly stated, the facts of the case borne out from the record are that the plaintiffs filed a suit for declaration to the effect that they are the only legal heirs of Tulsi Ram with respect to property as entered in Khata No. 18/17, Khatauni No. 41/39, Khasra Nos. 12, 13, 25, 26, 145, 148, 150, 151, 152, 153, 154 and 155, Kita 12 and Khata No. 18/17, Khatauni No. 72/70, Khasra Nos. 1 and 48, Khatauni No. 73/72, Khasra Nos. 308, 309 and 311, Khata No. 74/71, Khasra Nos. 312 and 313, situated in Mauja Nehwat, Tehsil Suni, District Shimla, Himachal Pradesh, Khata No. 2 Min./2 Khatauni No. 10/5, Khasra No. 437, situate at Mauja Nehwat, Tehsil Suni, District Shimla, Khata No. 19/18, Khatauni No. 42/40, Khasra Nos. 138, 138/1, 139 and 140, Khatauni No. 43/11, Khasra No. 142, situated at Mauja Durgapur, Tehsil Suni, District Shimla, Himachal Pradesh (hereinafter, ‘suit land’) and the Will dated 6.10.2003, is illegal, wrong and void. 3. Respondents-defendants (hereinafter, ‘defendants’) by way of filing written statement, refuted the averments contained in the plaint. 4. During the pendency of the suit, plaintiffs filed an application under S. 73 of the Act, averring therein that the suit in question has been filed by the plaintiffs alleging therein that the deceased Tulsi Ram never executed any Will/document and same is a fabricated document. Plaintiffs further claimed that on the basis of fabricated document, right of the plaintiffs is being denied in the suit land. Plaintiffs further claimed that on the basis of fabricated document, right of the plaintiffs is being denied in the suit land. In the application, as referred to above, plaintiffs averred that late Tulsi Ram was having a bank account with UCO Bank, Durgapur, which he used to operate till his death and the original account opening form of the Bank has been placed on record by PW-5. It is further averred in the application that late Tulsi Ram and his brothers partitioned the land themselves in the presence of witnesses and writing to this effect has been executed on 23.6.2002 and document in question has been proved before the court by leading evidence by the plaintiffs and also the original documents have been placed on record. It is further averred in the application that in the aforesaid document, signatures of Tulsi Ram are different than the signatures on the Will. Plaintiffs further averred that the alleged Will is a forged document because true signatures of the testator late Tulsi Ram found on the aforesaid document are different from the signatures appearing on the bank account opening form and partition agreement dated 23.2.2006, therefore, signatures appearing on the Will are required to be compared with the signatures appearing on bank account opening form and partition agreement and expert opinion in this regard be called for. 5. Defendants contested the aforesaid application and contended that the plaintiffs can not be allowed to raise dispute with regard to signatures, being beyond the pleadings in the suit. They also submitted that the onus to prove that the Will in question is surrounded by suspicious circumstances, is upon the plaintiffs, which they have failed to discharge and as such, at this belated stage, prayer made in the application for sending signatures for comparison, can not be accepted. Apart from above, defendants also contended before the court below that the signatures proposed to be sent to the expert are not the admitted signatures of deceased Tulsi Ram, as such, for want of admitted signatures, comparison can not be carried out with the disputed signatures, hence, application be dismissed. 6. Learned trial Court, having taken note of the pleadings adduced on record by the respective parties, dismissed the application vide order dated 17.8.2017. In the aforesaid background, plaintiffs are before this court, in the instant proceedings. 7. 6. Learned trial Court, having taken note of the pleadings adduced on record by the respective parties, dismissed the application vide order dated 17.8.2017. In the aforesaid background, plaintiffs are before this court, in the instant proceedings. 7. I have heard the learned counsel for the parties and gone through the record carefully. 8. Careful perusal of the material available on record reveals that the plaintiffs filed suit for declaration that they are legal heirs of late Tulsi Ram and the Will alleged to have been executed by their predecessor-in-interest Tulsi Ram is illegal, wrong and void. Since plaintiffs termed the Will in question alleged to have been executed by deceased Tulsi Ram to be forged one, definitely the onus to prove the same is upon them, as has been rightly observed by the learned Court below in the impugned order. 9. By now, it is well settled that for carrying out comparison of disputed signatures, there has to be admitted signatures on record. Under S.73 of the Act, court, of its own, can compare signatures/handwriting and can form its own opinion, whereas, under Ss. 45 and 47 of the Act, court can take opinion of handwriting expert. Irrespective of opinion of handwriting expert, court can also compare admitted signatures with the disputed one and arrive at an independent conclusion. S.73 authorises a court to compare disputed signatures with the admitted signatures and arrive at its own conclusion regarding genuineness of the signatures, but proof of identification of handwriting/signatures can be; (a) by means of direct evidence; (b) by means of familiar evidence; (c) by means of comparison by court; (d) by admission of the parties; (e) by means of scientific means of comparison by an expert; and lastly (f) by means of circumstantial evidence. 10. 10. In the case at hand, plaintiffs by way of application under S.73 prayed that the signatures of deceased Tulsi Ram appearing on the bank account opening form of UCO Bank, Durgapur and partition agreement dated 23.6.2002 be sent to the expert for comparison with his signatures on the disputed Will executed on 26.10.2003, but careful perusal of the provisions contained under S.73 of the Act, clearly suggests that court, with a view to ascertain whether signatures /writing or seal is that of the person, by whom it is purported to have been written or made, may get it compared with the admitted or proved signatures of that person. S. 73 of the Act is reproduced herein below: “73. Comparison of signature, writing or seal with others admitted or proved. –– In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose. The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.” 11. In the case at hand, there is no dispute that the person, whose signatures are sought to be compared, is no more alive and as such court has/had no occasion to obtain his specimen signatures as provided under S.73 of the Act. Another option available to the court under S.73 is to fall back upon the proved/admitted signatures of the person, whose signatures are sought to be compared. In the case at hand, as per plaintiffs, admitted signatures are available upon the document i.e. bank account opening form and private partition dated 23.6.2002. Record reveals that the document i.e. private partition has been strongly disputed by the defendants and said document is not an admitted document inter se parties, rather, it emerges from the record that during the course of evidence, its exhibition has been strongly objected by the defendants. Record reveals that the document i.e. private partition has been strongly disputed by the defendants and said document is not an admitted document inter se parties, rather, it emerges from the record that during the course of evidence, its exhibition has been strongly objected by the defendants. True it is that the defendants have not disputed factum with regard to deceased Tulsi Ram having bank account in UCO Bank, Durgapur but the question which needs to be determined in the instant proceedings is, whether the signatures of Tulsi Ram on the said form can be said to be admitted signatures in terms of S.73 or not? 12. PW-5, Manager of UCO Bank, though in his statement admitted that the deceased Tulsi Ram had opened the bank account on 11.9.1989, but it is not in dispute that the Will in question was allegedly executed in the year 2003 i.e. after fourteen years of opening the bank account. PW-5 also stated before the court below that he did not see the deceased Tulsi Ram signing the aforesaid form at the relevant time i.e. 11.9.1989, meaning thereby that PW-5 is not a witness to the execution of said account opening form. 13. This court, further finds from the reading of plaint having been filed by the plaintiffs that they nowhere pleaded that the Will in question does not bear true signatures of deceased Tulsi Ram, rather plaintiffs have simply stated that the document/Will as alleged to have been executed is a false document and same is fabricated one. 14. Having carefully gone through the contents of application filed under S. 73 preferred by the plaintiffs, vis-à-vis reasoning assigned by the learned Court below, while rejecting the same, this court is not persuaded to agree with the contention of Mr. Romesh Verma, Advocate that the learned Court below erred in concluding that since there is no admitted signatures of deceased Tulsi Ram, prayer made for comparison of the signatures can not be allowed. Signatures, if any, on the bank account opening form, which was opened on 11.9.1989, can not be said to be admitted signatures of deceased Tulsi Ram, especially when there is none to state that he saw Tulsi Ram signing the form at the time of opening bank account. Signatures, if any, on the bank account opening form, which was opened on 11.9.1989, can not be said to be admitted signatures of deceased Tulsi Ram, especially when there is none to state that he saw Tulsi Ram signing the form at the time of opening bank account. Private partition dated 23.6.2002 has been strongly disputed by the defendants, as has been taken note herein above, as such, no fruitful purpose would be served in case signatures, if any, of the deceased Tulsi Ram on private partition are ordered to be compared with the so called admitted signatures of Tulsi Ram on bank account opening form. By now, it is well settled that one disputed document can not be used for comparison of signatures with another disputed signatures, rather comparison of disputed signatures would be only useful when it is done with admitted signatures, but in the instant case, neither the admitted signatures of deceased person are available nor person whose signatures are sought to be compared is available for giving specimen signatures. 15. Another argument advanced by Mr. Verma, that the bank account opening form is a public document and signatures on the same can not be denied, rather, same are deemed to be admitted, also deserves outright rejection in the given facts and circumstances of the case. 16. No doubt, the bank account opening form is a public document and bank concerned is the custodian of the same, but still, the question remains that who would prove that it was the deceased, who had signed the form on 11.9.1989, at the time of opening the account. PW-5, Manager of the Bank concerned though, in his statement recorded before court below, admitted that the bank account of Tulsi Ram was opened on 11.9.1989, but he categorically stated that he did not see deceased /testator signing aforesaid form on the relevant date, meaning thereby that he is not a witness to the execution of the account form, whereas S. 73 specifically speaks about proved/admitted signatures of the person, who is purported to have written/made the same. PW-5, being Manager of the Bank definitely can not deny the factum with regard to opening of account by deceased on 11.9.1989, being custodian of record, which is definitely a public document, but since he had no occasion to see Tulsi Ram putting his signatures on the form, he can not be said to be a witness to the execution of the account opening form. 17. Reliance placed by Mr. Romesh Verma, learned counsel representing the plaintiffs on the judgment passed by the Hon'ble Supreme Court in Umesh Chandra v. State of Rajasthan, AIR 1982 SC 1057 , is wholly misplaced because the facts of the present case are totally different to the facts, which were before the Hon'ble Apex Court in Umesh Chandra(supra), in which Hon'ble Apex Court has held that as per S.35 of the Indian Evidence Act, there is no legal requirement that a public or other official document should be kept only by a public officer, rather all that is required is that it should be regularly kept/maintained in discharge of official duties. In the aforesaid judgment, Hon'ble Apex Court, in the given facts and circumstances of that case, further observed that it could not be said that the admission form as well as school register, both of which were, according to evidence, maintained in due course of business, were not admissible in evidence because they were not kept or maintained by any public officer. Under S.35, all that is necessary is that the document should be maintained regularly by a person whose duty it is to maintain the document and there is no legal requirement that the document should be maintained by a public officer only. Therefore, those documents would be admissible under S.35 and Ss. 73 and 74 would be irrelevant. Relevant paras of aforesaid judgment are reproduced herein below: “10. The first document wherein the age of the appellant was clearly entered is Ext. D-1 which is the admission form under which he was admitted to class III in St. Teressa's Primary School, Ajmer. In the admission form, the date of birth of the appellant has been show a as 22.6.1957. The form is signed by Sister Stella who was the Headmistress. D-1 which is the admission form under which he was admitted to class III in St. Teressa's Primary School, Ajmer. In the admission form, the date of birth of the appellant has been show a as 22.6.1957. The form is signed by Sister Stella who was the Headmistress. The form also contains the seal of the school, DW, Ratilal Mehta, who proved the admission form, has clearly stated that the form was maintained in the ordinary course of business and was signed only by the parents. The evidence of Ratilal Mehta (DW 1) is corroborated by the evidence of Sister Stella (DW 3) herself who has also endorsed the fact of the date of birth having been mentioned in the admission form and has also clearly stated on oath that the forms were maintained in regular course and that they were signed by her. She has also stated that at the time when the appellant was first admitted she was the headmistress of St. Teressa Primary School, Ajmer. The High Court seems to have rejected this document by adopting a very peculiar process of reasoning which apart from being unintelligible is also legally erroneous. The High Court seems to think that the admission forms as also the School's register (Ext. D-3) both of which were, according to the evidence, maintained in due course of business, were not admissible in evidence because they were not kept or made by any public officer. Under s. 35 of the Evidence Act, all that is necessary is that the document should be maintained regularly by a person whose duty it is to maintain the document and there is no legal requirement that the document should be maintained by a public officer only. The High Court seems to have confused the provisions of sections 35, 73 and 74 of the Evidence Act in interpreting the documents which were admissible not as public documents or documents maintained by public servants under sections 34, 73 or 74 but which were admissible under s. 35 of the Evidence Act which may be extracted as follows: "35. Relevancy of entry in public record made in performance of duty. Relevancy of entry in public record made in performance of duty. An entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such books, register or record is kept, is itself a relevant fact." (Emphasis ours) 11. A perusal of the provisions of s. 35 would clearly reveal that there is no legal requirement that the public or other official book should be kept only by a public officer but all that is required is that it should be regularly kept in discharge of her official duty. This fact has been clearly proved by two independent witnesses, viz., DW 1, Ratilal Mehta and DW 3, Sister Stella. The question does not present any difficulty or complexity as in our opinion the section which would assist in this behalf is s. 35 of the Evidence Act which provides for relevancy of entry in the public record. In this connection we may refer to a decision of this Court in Mohd. Ikram Hussain v. State of U.P., where Hidayatullah, J. speaking for the Court, observed as under: “In the present case Kaniz Fatima was stated to be under the age of 18. There were two certified copies from school register which show that on June 20, 1960, she was under 17 years of age. There was also the affidavit of the father (here evidence on oath) stating the date of her birth and the statement of Kaniz Fatima to the police with regard to her own age. These amounted to evidence under the Indian Evidence Act and the entries in the school registers were made ante litem motam.” 18. In the case before Hon'ble Apex Court, question was with regard to admissibility of admission form as well as school register, maintained in due course of business by the School, in evidence and Hon'ble Apex Court held that the admission form as well as school register maintained in due course of business by a person, whose duty it is to maintain the document, would be admissible under S.35 and Ss. 73 and 74 would be irrelevant. 73 and 74 would be irrelevant. But, in the case at hand, question is not with regard to admissibility of the bank account opening form of Tulsi Ram, rather question is whether his signatures on the said account opening form, which was opened on 11.9.1989, can be said to be admitted signatures in terms of S.73, especially when there is none to certify or state that he saw Tulsi Ram putting his signatures on the said form. 19. Mr. Romesh Verma, learned counsel representing the plaintiffs also placed reliance upon following judgments:- 1. Ajit Savant Manjagavi v. State of Karnataka AIR 1997 SC 3255 2. G. Someshwar Rao v. Samineni Nageshwar Rao (2009) 14 SCC 677 3. State (Delhi Admn.) v. Pali Ram AIR 1979 SC 14 Mr. Romesh Verma, Advocate, while relying upon above judgments, tried to demonstrate that the court has ample power to send the disputed signatures to the expert for having his opinion for proper adjudication of the case, however, since there is no dispute with regard to power of the court under S.73 of the Act to send the disputed signatures for comparison with the admitted signatures to the expert, this court sees no reason to discuss the aforesaid judgments. 20. In view of the detailed discussion made herein above, there is no merit in the present petition, which is accordingly dismissed alongwith all pending applications. Record of court below, if received, be sent back forthwith. Interim directions, if any, are vacated.