Orissa High Court
Laxmi Bai vs A. Chandravati on 18 May, 1994
Equivalent citations: AIR 1995 ORISSA 131, (1994) 2 CIVILCOURTC 442, (1994) 2 ORISSA LR 369, (1994) 3 CIVLJ 554
Author: G.B. Patnaik
Bench: G.B. Patnaik
JUDGMENT R.K. Patra, J.
1. Should the Court, if goaded, arrogate to itself the role of an expert and compare the disputed writings of a person with other writings which are admitted or proved to be his writings and solely relying on such personal comparison form its own opinion and arrive at a conclusion on the question of identification of hand writings this is the moot question that arises for our consideration in this Letters Patent Appeal.
2. Plaintiff is the appellant and the defendant is the respondent (for the sake of convenience, they may be referred to as plaintiff and defendant in this judgment). The parties are relations as will appear from the genealogical table set forth below:
______________________________________________________ | | | | V. Kanbeya V. Samba Murty V. Balakrishna A. B. Amudu | (P.W. 3) | | A. B. Amaji V. Kamaraju Rajana (Testatrix) (P. W. 4) | _________________________|___ | | Bhaskar Rao Laxmi Chandravati (plaintiff)
3. Plaintiff's case is that the testatrix Amaji was the daughter of V. Kanheya. The latter had a sister called Amudu who was the grandmother of the plaintiff (i.e. father's mother). The property mentioned in Schedule 'A' was purchased by Amudu and Amaji in the year 1940 and each of them had 8 annas interest in the said property. Schedule 'B' property exclusively belonged to Amaji. As Amaji had no children, she had lot of love and affection towards the plaintiff and her brother Bhaskar Rao (late husband of the defendant). She (Amaji) on 17-2-1957 executed the will in question in favour of the plaintiff and her "brother Bhaskar Rao in respect of her 8 annas interest of Schedule 'A' property and the entire interest of Schedule 'B' property. According to the terms of the will, the plaintiff and her brother Bhaskar Rao would get" the said properties after the death of Amaji. It was further mentioned in the will that if any of the legatees died without leaving any son or daughter surviving on the death of such legatee, the property would go to other legatee. Bhaskar Rao died on 19-9-1974 leaving without any issue behind him. It is the claim of the plaintiff that under the terms of the will her brother having died without any issue, she alone is entitled to the entire property covered under the will after Amaji who had died on 11-8-1957. After the death of Bhaslcar Rao the plaintiff wanted to record her name in respect of the properties but it could not be possible in absence of grant of letters of administration. In the premises stated above, she filed the application under Sections 276 and 278 of the Indian Succession Act, 1925 (in brief the Succession Act) for grant of letters of administration in her favour in respect of the will in question.
4. The defendant resisted the claim of the plaintiff contending inter alia that Amaji had not executed any will and the will in question is a forged and ante-dated document. It was further alleged that the signature purported in the wilt of Amaji was not her signature inasmuch as she was illiterate and had not known how to sign her name.
5. The suit had once ended in dismissal on the basis of a finding that the will is not genuine being not executed and duly attested. On appeal being filed by the plaintiff against it, this Court in First Appeal No. 241 of 1977 set aside the judgment and remitted the matter with a direction to the learned trial Judge to give opportunity to the plaintiff to get the disputed signature in the will examined by a handwriting expert with the admitted signature of Amaji in Ext. 2. After the matter went back to the trial court oh remand, the plaintiff got the signature compared by the handwriting expert who was examined as P.W. 5. On the basis of the evidence, the learned trial Judge came to hold that the wilt in question was duly executed and attested and in view of the admitted position that the husband of the defendant was one of the legatees died issueless, the plaintiff alone is entitled to the letters of administration and accordingly, allowed the application. Against the said judgment and decree, the defendant preferred First Appeal No. 381 of 1981 and a learned single Judge of this Court has reversed then holding that the will in question is not genuine. The correctness of the decision rendered in the aforesaid First Appeal No. 381 of 1981 is the subject-matter of challenge in this appeal.
6. Shri B. H. Mohanty, learned Counsel for the plaintiff, contended that the learned single Judge went wrong in law in comparing by himself the disputed handwriting in the will with the specimen signature of the testatrix and relying entirely on such personal comparison held that the will is not genuine. According to the learned Counsel although it is permissible to a court to compare the disputed writing with the specimen writing of a person, it cannot base its conclusion solely on such personal comparison. In view of such submission, let us, therefore, first examine if the learned single Judge had adopted the procedure as contended by Shri Mohanty. This is how the learned Judge has in the impugned judgment observed:
"...... I have myself compared the signatures appearing in the alleged will with those contained in the specimen signature register, entry No. 36227 (Ext. 2). 1 notice some peculiar features; the first being that the ink used for making the alleged two signatures appearing in two pages in the will appears to be different. There is marked variance in the writings in the two signatures. While the signature on the first page is made with a thick nib, the one used for the signature in the second page of the will is thin as is evident from the letters of the signatures. The letters. 'AA', 'KA'. 'BO', 'E', 'NA' and 'MA' have been differently scribed in the signatures. This is a very suspicious circumstance. If the two signatures in the two pages of the will vary so substantially, their comparison with the entry in specimen register loses significance. It is surprising that the expert has not noticed these peculiar features. He also does not appear to have considered that there were two signatures in the will. Everywhere he appears to have referred to only one of the signatures which is a parent (or patent ?) from data No. 2. He has referred to the letters in the two sets. Indubitably there were three sets of handwritins, i.e., two sets in the will and one in specimen signature register. He does not appear to have compared the two signatures appearing in the will itself. The differences are apparent even to the naked eye....."
7. In Kessarbai v. Jethabhai Jivan. AIR 1928 PC 277, it has been held as follows (at p. 281):
"It is unsatisfactory and dangerous to stake a decision, in a case where there is a direct conflict of testimony between parlies as to general character of a signature, on the cor rect determination of the genuineness of the signature by mere comparison with the admitted signatures, especially without the aid in evidence of microscopic enlargments or any expert advice."
8. The following passage appearing in the judgment of the Supreme Court in the case of State (Delhi Administration) v. Pali Ram, AIR 1979 SC 14 is instructive on the point (at p.2l of AIR):
"Although there is no legal bar to the Judge using his own eyes to compare the disputed writing with the admitted writing even without the aid of the evidence of an handwriting expert, the Judge should, as a matter of prudence and caution, hesitate to base his finding with regard to the identity of a handwriting which forms the sheet-anchor of the prosecution case against a person accused of an offence, solely on comparison made by himself. It is, therefore, not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other; and the prudent course is to obtain the opinion and assistance of an expert."
9. We may state here that under Section 73 of the Evidence Act, a Court is competent to compare the disputed writings of a person with other writings which are admitted or proved to be his writings. Such comparison by the Court is with a view to appreciate properly the other evidence available on record on the question of writings. It would, however, be too hazardous for a Court to use his own eyes and merely on the basis of personal comparison decide a very vital issue j between the parties centering round the handwriting or signature of a person. In the case at hand, there is direct ocular evidence indicating that the testatrix signed in the will besides the evidence of the hand writing expert who has opined that the specimen signature and the disputed signature in the will are of the same person. We may note here that the learned Judge has not disbelieved or rejected the ocular testimony of the concerned witnesses with which we would presently deal with.
10. In the aforesaid legal backdrop, let us therefore examine the evidence on record. The trial Court framed issue No. 2 which is as follows:
"Is the will genuine? Was it duly executed and attested?"
Section 63 of the Succession Act lays down the following formalities required to be observed in execution and attestation of a will:
(a) A testator shall sign or shall affix his mark to the will or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator or the signature of the person signing for him shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will,
(c) The will shall be attested by two or more witnesses each of whom has seen the testator sign or affix his mark to the will or has seen some other person signing the will for the testator.
Section 68 of the Indian Evidence Act, 1872 forbids the using of a document which is required by law to be attested as evidence until at least one attesting witness has been called for the purpose of proving its execu-
tion if there be an attesting witness alive.
11. P. W. 2 is the plaintiff. She stated that Amaji had no issue on account of which she and her brother were looked after by Amaji who executed the will in their favour on 17-2-1957. At that time Amaji was aged about 50/60 years. P.W. 2 vividly described the manner in which the will was written and executed. She stated that she was present when the will was written and executed. A Moharir called Narayan Rout scribed the will. At the time of the execution of the will, her ("P.W. 2) father, grandmother, two of her uncles, namely. Samba Murty (P.W. 3) and Krishna Murty were also present. According to the witness, Amaji said that she would possess the property during her lifetime and after her death, Bhaskar and plaintiff should possess and after death of Bhaskar and plaintiff, their children should possess and in case the plaintiff did not have children and Bhaskar had children, then they should possess and in case Bhaskar had no children and the plaintiff had children, then plaintiffs children should possess. The scribe Narayan Rout read over and explained the contents to Amaji. The latter after stating that the contents were correct signed it. At the time Amaji was signing, Krishna Murty, Samba Murty, plaintiffs father and grandmother were present. She testified that after Amaji signed. Samba Murty (P.W. 3). Krishna Murty and her father signed the document. P.W. 2 emphatically stated in her evidence that Amaji was not illiterate and she could write Telegu and sign in that language. She was subjected to thorough cross-examination but nothing was brought out to discredit the aforesaid evidence. P. W. .3 is V. Samba Murty who was plaintiffs grandmother's brother. He is one of the attesting witnesses. P. W.3 deposed that Amaji was expressing her desire to execute a will in favour of the plaintiff and her brother prior to the execution of the will in question. She corroborated P.W. 2 by saying that the document was written on instruction of Amaji. After the writing was over, the same was read over and explained to her by the Moharir Narayan Rout. Amaji after saying that it was alright, signed it. After she signed, Krishna Murty and thereafter he (P.W. 3) signed in it. This witness was closely cross-examined but nothing was brought out to reject his evidence. It is relevant to note here that although P.W. 2 in categorical terms proved the execution of the will, the same instead of being marked as an exhibit, was marked 'Y' for identification. She has proved Amaji's signatures in the said document which was marked as 'Ext. 3 and Ext. 3/a. She has also proved her father's signature in it as Exts. 3. b and 3/c. She has identified Exts. 3, d and 3, e to be the signatures of Krishna Murty and exhibits 3, f and 3/g to be the signatures of Samba Murty (P.W. 3) in the said document. It was perhaps a confusing statement made by P.W. 3 which led the trial Court to mark the document as 'W' for identification. It is evident from the statement of P.W. 3 that initially he made a mistaken statement as to the identity of the document, but subsequently he corrected himself and stated about the execution of the will in question. The non-marking of the will as an exhibit would not affect the case in any manner as the execution and its attestation have been proved. The other witness to speak about the execution of the will is P.W. 4. He candidly stated that he was not present at the time of execution of the will but according to him Amaji had expressed a desire to will the property away in favour of the plaintiff and her brother. He stated "I was not present when it was executed but that day in the evening she brought the will to my house and got it read by the Moharir". He also deposed that Amaji expressed before him that she executed the will in question. The witness has also stated that Amaji could write Telugu.
12. There is no evidence adduced by the defendant contrary to the aforesaid evidence adduced by the plaintiff to prove the execution of the will by Amaji and its attestation by P.W. 3, Krishna Murty and father of the plaintiff. The defendant has not chosen to examine herself in the proceeding to substantiate her allegation. It is in the evidence that Amaji was not illiterate as deposed by P.Ws. 2 and 4. In her evidence plaintiff (P.W. 2) stated that Amaji was depositing money in the Savings Bank Account of the post office. P.W. 1 is the postal Inspector attached to the Cuttack G.P.O. and on being summoned he produced the specimen signature book in respect of Savings Bank Account No. 36227 standing in the name of Amaji. He produced the pass book of the said Account No. 36227 issued by the Cuttack G.P.O. which was marked as Ext. I. The witness stated that the specimen signature book was made in the regular course of business in 1927. The relevant entry of the said account number was marked as Ext. 2 by the witness. P.W. 2 has identified Amaji's signature in Ext. 2 which was marked as Exl. 2/A. The handwriting expert P.W. 5 has made comparison of the signature Ext. 2 appearing in the postal specimen signature book with the signature of Amaji in the will. After examination of the movement of the strokes forming the letters and on the basis of the cumulative result of the examination made, the handwriting expert opined that the specimen signature in Ext. 2 and the disputed signature in the will are of the same person. The handwriting expert also stated that he noticed some variation in the signatures but he explained the same by stating that the habitual space and individual expansion of letters have remained almost the same and within natural variation although they were written within a space of 30 years. It would be profitable to quote relevant portion of his evidence in this regard :
"The following dates convincingly prove:--
(a) The features of age old writing and bad writing materials like paper, pen and ink had left their own effects or impressions in the signatures on the will.
(b)The writer has retained the habitual lateral expanstion of the following letters in between the two sets. The first, third, fourth, fifth, eighth, ninth and the last letter. When one compares the signature inter se in the will the following lateral expansion with regard to their shape and sizes are found similar i.e. in the Ist letter the shape and size are similar in all, the 2nd letter is found similar in the will, the 3rd letter is similar in height, the 4th and the 5th letters to touch each other maintaining their sameness in sizes. The 5th letter in the will shows more numbers of the pen halts, due to age old writing. The 6th letter in the will shows more number of pen halts and is affected due to bad writing letters in the will. In the 6th letters in the will, the line quality is more affected in the will when compared to 1st page of the will. The 7th letter "Na" varies in its shape and formation in both the sets.
(c) Equal number of pen lefts in each corresponding letter are noticed common except in the 5th letter in Ext. 2, where number of pen halts are more, due to the formation of second to loop to write before the finishing stroke.
(d) Predominating finger movement, irregular alignments and equal distribution of ink due to unsteady hand or pressure, are noticed common to both.
(e) Shadings are noticed in the downward strokes due to heavy pressure in all.
(f)The signatures in Exts. 3 and 3/a reveal no sign of forgery or simulation."
13. The defendant although was given opportunity to rebut the evidence of handwriting expert P.W. 5, she did not avail of it by examining some other experts. We have examined the disputed signature in the will and the postal specimen signature Ext. 5/6. We do not know the Telegu language in which Amaji had signed. To our naked eyes, we did not notice any dissimilarity as was found by the learned single Judge. In any case it is not unusual to find that the difference in writing of one and the same person even after a short interval of time. It all depends upon many extraneous circumstances like pen, ink, paper the pressure of his hand, the general condition in which he writes. We had a glance at the document not for the purpose of forming any independent opinion on the disputed signature with the proved signature of Amaji. We looked at the handwriting simply to appreciate other evidence available on record with regard to the signing of the document by Amaji. On the basis of the evidence of P.Ws. 2, 3 and 4 coupled with the opinion of the handwriting expert we have no hesitation to hold that Amaji executed the will in question which had been duly attested.
14. It was contended on behalf of the defendant that the plaintiff approached the Court for letters of administration after 20 years and it is a circumstance which should be taken to doubt the genuineness of the will. The plaintiff has explained that even after the death of Amaji, she and her brother Bhaskar Rao continued to possess the properties be-quacthed under the will and lived in the houses referred to in the will and in fact the properties have been mutated in the name of her brother Bhaskar Rao who died on 19-9-1974 without leavying any son or daughter. Because of the fact that as per the terms of the will the entire properties are to go to her following the death of Bhaskar Rao, she wanted to get herself recorded in respect of the schedule properties with the settlement authorities who declined to record the name of the plaintiff in absence of Letters of Administration. This has necessitated her to approach the Court. Mere delay which has been explained, in our view, is not fatal to the plaintiff.
15. There is one aspect which stands glaring against the defendant and in favour of the plaintiff with regard to the execution of the will by Amaji. As it would appear from the genealogical table, P.W. 3 (one of the attesting witnesses to the will) and P.W. 4 (who has stated about the intention of the testatrix before and after the execution of the will) are preferential heirs to the estate of Amaji and the property; would have gone to them and to-no other but for the will. In the circumstances they would not have spoken against their own interest had the execution of the will was not a true incident. The suspicious circumstances pleaded against the execution of the will by the defendant are of thus no significance.
16. It was contended by Shri P. K. Misra, learned Counsel for the defendant, that even if due execution of the will is established, the plaintiff cannot get exclusive right over the entire disputed property. He argued that in view of Sections 95 and 124 of the Succession Act, the defendant's Husband Bhaskar Rao had succeeded to half share in the property and on his death the same would devolve on the defendant. In this connection reliance was placed on the judgment of Norendra Nath Sirdar v. Kamala Besini Devi (1895)23 .
Ind App 18 (PC) and the judgment of the Supreme Court in Smt. Talkushwari Devi v. Ram Bikat Prasad Singh, AIR 1972 SC 639. This point was taken by the defendant in her objection filed to the application for Letters of Administration nor argued earlier and was for the first time urged in this appeal before us. We are afraid, this contention of the defendant claiming title in respect of the half of the properties covered under the will cannot be enterained in this appeal which arises out of the proceedings for grant of Letters of Administration. In Ishwardeo Narain Singh v. Smt. Kamta Devi, AIR 1954 SC 280 the Supreme Court observed that the Court of Probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court. The Supreme Court in Mrs. Hem Nalini Judah v. Mrs. Isolyne Sarojbashini Bose, AIR 1962 SC 1471 has clearly held that questions of title are not decided in the proeeedings for the grant of probate or letters of administration arid whatever therefore might have happened in these proceedings would not establish the title. In Jagojoti Bose v. Bararuchi Bose, AIR 1970 Orissa 29, Chief Justice G. K. Misra has observed that probate or letters of administration are not concerned with title to the property but are only concerned with the due execution of the will.
17. In view of our finding that the will has been duly executed and attested, the application made by the plaintiff for grant of letters of administration has to succeed.
18. In the result, the judgment of the learned single Judge is hereby set aside. The application by the plaintiff for grant of letters of administration succeeds. The A.H.O. is allowed. There shall be no order as to costs.
G.B. Patnaik, J.
19. I agree.