Andhra HC (Pre-Telangana)
Nallabothu Purnaiah vs Garre Mallikarjuna Rao (Died) By Lrs. ... on 19 July, 2002
Equivalent citations: 2003(1)ALD260, AIR 2003 ANDHRA PRADESH 201, (2003) 1 ANDHLD 260 (2003) 1 ICC 928, (2003) 1 ICC 928
JUDGMENT T. Ch. Surya Rao, J.
1. The unsuccessful plaintiff has preferred this appeal against the judgment and decree dated 9-11-1992 passed by the learned Principal Subordinate Judge, Narsaraopet in O.S. No. 117 of 1983. Respondents 1 to 3 are defendants in the suit, respondents 4 to 8 have been added as legal representatives of the first respondent, who since died, pending consideration of the suit.
2. A common judgment was passed in O.S.I 17 of 1983 and O.S.257 of 1984 by the learned Principal Subordinate Judge, Narsaraopet as the parties are same in both the suits. Evidence was recorded in O.S. 117 of 1983, and the same was read in evidence in the later suit. After considering the evidence, both oral and documentary, the Court below dismissed O.S.I 17 of 1983 and decreed O.S.257 of 1984. The appellant therefore is now assailing the Judgment and Decree O.S. No. 117 of 1983 alone.
3. The suit was filed for the relief of specific performance of the contract of sale dated 31-1-1981. It is the case of the plaintiff that late Garre Venkata Ramakotaiah, father of the first defendant leased out the plaint schedule mentioned lands to the plaintiff on 29-4-1980, for a period of 3 years, under a written lease deed dated 20-4-1980, and ever since, the same, the plaintiff has been in possession and enjoyment of the said property by paying maktha regularly to Sri Venkata Ramakotaiah and subsequently to defendants 1 to 3 who are the son, wife and married daughter of late Sri Venkata Ramakotaiah respectively. Late Ramakotaiah had to spend huge amounts for his ailment and he contemplated to sell the plaint schedule mentioned lands and the plaintiff agreed to purchase the same, as he had been in possession of the same as tenant, for a consideration of Rs. 30,000/-. On 31-1-1981 the plaintiff paid an amount of Rs. 28,000/- as an advance and the suit agreement of sale was executed on that day at Narsaraopet in the house of third defendant. It was agreed inter alia in the agreement to execute the sale deed after expiry of the lease period by 20-4-1983 and after receiving the balance sale consideration of Rs. 2000/-. But in the meanwhile, Venkata Rama Kotaiah died in the month of April, 1981 and defendants 1 to 3 succeeded to the estate of the deceased. The plaintiff got issued a notice to the defendants calling them upon to attend the registration office on 22-4-1983 and to execute the sale deed and to get it registered. The defendants having received the said notice failed to attend the Registrar's Office and started proclaiming in the village that they would disturb the possession of the plaintiff. The plaintiff was always ready and willing to perform his part of the contract.
4. The first defendant filed the written statement and died, thereafter, pendente life. The other defendants adopted the said statement. The case of the defendants as averred inter alia in the written statement was that both the lease and contract of sale set-up by the plaintiff were false and the documents were forged. The lease deed as well as the agreement to sell were never executed by late Ramakotaiah and the first defendant never attested the suit agreement of sale as claimed and the plaintiff never paid any Maktha either to late Ramakotaiah or to the first defendant after the demise of late Ramakotaiah. Because the first defendant sold some property to the plaintiff under a contract dated 30-4-1982 taking advantage of the consideration the plaintiff conveniently setup a false case. The plaint schedule property was joint family property and late Ramakotaiah and first defendant had half share in it. Late Ramakotaiah had no necessity to sell that property at any time and the plaintiff had no capacity to pay an amount of Rs. 28,000/- and purchase the property. The defendants had been getting the property cultivated and therefore, the suit was liable to be dismissed.
5. On the above pleadings, the following issues were framed at the time of the settlement of issues.
1. Whether the agreement dated 31-1-1981 is true?
2. Whether the plaintiff is entitled to specific performance of contract of sale dated 31-1-1981?
3. Whether the plaintiff has got capacity?
4. Whether the plaintiff is in possession of the plaint schedule property as on the date of suit?
5. Whether the plaintiff is entitled to injunction prayed for?
6. To what relief?
6. At the time of the trial, 6 witnesses were examined on the side of the plaintiff and documents Exs.A-1 to A-37 were got marked. Two witnesses were examined on the side of the defendants and documents Exs.B-1 to B-9 were got marked.
7. On issues 1 and 2 under the impugned judgment, the Court below held that the suit agreement dated 31-1-1981 was not true and was forged and concocted document and therefore the plaintiff was not entitled for the relief of specific performance. On the issue No. 3 it was held that the plaintiff had no capacity to raise huge funds. On issue No. 4 it was held that the plaint mentioned property was not under possession and enjoyment of the plaintiff as claimed.
8. The learned Counsel appearing for the appellant contends that the capacity of the plaintiff to purchase cannot be doubted inasmuch as he agreed to purchase the lands covered under the second contract of sale from the defendants 1 to 3 and having also purchased some property from late Ramakotaiah under various registered sale deeds and discharged the debts of late Ramakotaiah obtained from Co-operative Agricultural Bank. The learned Counsel further contends that the evidence of P.Ws.1 to 4 would amply prove the execution of Ex.A-1 contract of sale.
9. Learned Counsel for the respondents on the other hand contends that the evidence of expert cannot be solely relied upon and de hors the same, there is no evidence in proof of Ex.A-1 contract of sale and therefore the suit has been rightly dismissed by the Court below.
10. The only point that arises for my determination in this appeal is whether late Ramakotaiah executed Ex.A-1 contract of sale dated 31-1-1981. In proof of the same, there has been oral evidence of P.Ws.1 to 6 and the contract of sale which has been marked as Ex.A-1. Ex.A-2 is another agreement of sale stated to have been executed by the defendants in respect of another land and the same has been the subject matter of the other suit O.S.257 of 1984. The execution whereof having not been in dispute as aforesaid, the suit O.S.257 of 1984 has been decreed for specific performance in favour of the appellant. Admittedly, the appellant agreed to purchase the property covered by Ex.A-2 for a consideration of Rs. 43,992/- and paid an amount of Rs. 30,000/- on the date of its execution as advance money. Having regard to the same, at the outset it is legitimate to consider that the plaintiff had the necessary wherewithal to purchase the property covered by Ex.A.1. That apart, the evidence of P.W.1 shows that late Ramakotaiah obtained loan by mortgaging the properties from Co-operative Agricultural Bank, Macherla and that the appellant discharged that loan by remitting the amounts under Ex.A-3 to Ex.A-17 challans and he was given Ex.A-18 the loan clearance certificate. P.W.1 in his evidence spoke about the landed property he possessed as on the date of Ex.A-1. This evidence shows that he got Ac.20-00 of land by then. Furthermore, it is in the evidence of P.W.1 that he purchased lands from late Ramakotaiah under Ex.A-2 Registered Sale Deed dated 16-5-1979 and under the original of Ex.A-22 registration extract of the sale deed. These documents would amply show the capacity of the appellant to purchase, which cannot be doubted.
11. As regards execution, the oral evidence on the point is that of P.W.1, the appellant himself. P.W.2 is one of the attestors to the document. P.W.3 is the scribe and P.W.4 is the expert. P.W.2 in his evidence, deposed that Ex.A-1 bore his signature. It is his evidence further that in his village one Pedda Hanumaiah and Chinna Hanumaiah were murdered and he did not know whether the plaintiff was an accused in the murder case. He stated on oath that he could not depose about the contents of Ex.A-1, for fear of serious consequences either way and therefore he did not want to say whether the contents in Ex.A-1 are true or false. Obviously, the witness appears to have been under threat and he has not inclined to depose freely and frankly without any fear or favour. The fact remains that Ex.A-1 does bear his signature as an attestor. Shorn of other imponderables, there has been an admission on his part that he never attested a false document.
12. P.W.3 having deposed that he scribed Ex.A-1 at the house of the son-in-law of the vendor and the vendor himself stated the contents of the documents and the consideration of an amount of Rs. 28,000/- was passed on that day under Ex.A-1, however stated that he could not give the name of the vendor or names of the persons who attested that document. From his evidence, it is obvious that he did not know the vendor earlier but he was definite while sitting on a cot, the vendor himself dictated the terms of the contract of sale and he is resident of Adigoppala Village and one of the attestors was his son. In the cross-examination, it was elicited that prior to Ex.A-1 he did not know Mallikarjuna Rao/defendant No. 1 and because the said defendant No. 1 signed in his presence on Ex.A-1, he knew that he was Mallikarjuna Rao, It is not known why this fact has been elicited in the cross examination, when the witness did not speak about the identity in the chief examination. Anyway it confirms that the first defendant Mallikarjuna Rao is one of the attestors of the document. De hors the identity of the deceased late Ramakotaiah the evidence of P.W.3 shows the due execution of the document by the author of Ex.A-1, due attestation of the same by defendant No. 1 and other attestors and passing of consideration of Rs. 28,000/- under Ex.A-1. There is nothing to discredit the testimony of this witness, inasmuch as except a bald suggestion made at the end of the cross examination nothing has been elicited, which shakes his credibility.
13. P.W.4 is the expert, he worked as Assistant Director in the Forensic Science Laboratory, Hyderabad and also worked as Assistant Director in the Scientific Section of C.I.D., Hyderabad and retired voluntarily from the service. The Court below doubted his evidence on the premise that he was not a qualified expert. In fact, there is no academic course prescribed by any Alma Mater in the country, under which one is expected to obtain a degree or diploma for becoming an expert in the science of identification of hand writing and signatures. The evidence of this witness shows that, he compared the two disputed signatures (Q-l and Q-2) which are purported to be that of late Ramakotaiah and late Mallikarjuna Rao, with that of the signatures in S1 and S2, the admitted signatures, and gave his opinion that they are identical. In the cross-examination of this witness, it has been elicited about the natural variations in the disputed and admitted signatures of late Ramakotaiah and late Mallikarjuna Rao. Having regard to the said answers given by the expert about the natural variations and having regard to the fact that the expert has no qualifications the Court below eschewed the evidence of P.W.4 totally from consideration. In the circumstances, I am afraid, I cannot concur with the said finding given by the Court below. Admittedly, P.W.4 worked as Government expert for quite a long time. Had he not been a qualified expert, he would not have been appointed as an Expert by the Government and his services would not have been availed either by the Scientific Section of the C.I.D. or in the Forensic Science Laboratory of the State at Hyderabad. One becomes an expert in the field of identification of handwriting and signatures by training and experience and constant observations. It is not a developed science, where there can be a regular course or training to be undergone in any institute and given the degree or diploma in regard thereto. The reasoning given by the Court below, in the circumstances, is absurd and fallacious. The evidence of P.W.4 coupled with the reasons given by him in support of his opinion, which amply bear out his testimony, under the circumstances, cannot be doubted.
14. Apart from the direct evidence sought to be adduced in this case in proof of Ex.A-1, the plaintiff/appellant also seeks to examine P.Ws.5 and 6. P.W.5 is the mortgagee, of late Rama Kotaiah and late Mallikarjuna Rao, the latter having mortgaged the house property in favour of P.W.5 and obtained a loan. That house property was later sold away in discharge of the mortgage debt. The evidence of P.W.5 proves the transaction under Ex.A-20. There is nothing to discredit the testimony of this witness. Similarly, the evidence of P.W.6/photographer who has taken the photos of Ex.A-1 and the specimen signatures on Ex.A-20 and A-32, almost remained un-controverted and there is nothing to disbelieve his testimony.
15. One of the reasons given by the trial Court in eschewing from consideration, the evidence of P.W.4 was that expert failed to compare the signatures appearing on the original of Ex.A-1. The fact that the evidence of P.W.6 remained uncontroverted, squarely proves the taking of the photos of the signatures found on Exs.A-1, A-20 and A-32. Even if the originals are to be sent to an expert, the procedure to be followed by the expert undoubtedly is to take photos of the disputed signatures on the questioned document and to magnify it to such number of times as is convenient for the purpose of comparison. Yet times where the original disputed documents cannot be parted with by the Court, the same procedure is got to be followed. In that view of the matter, the reasons given by the trial Court appears to be not sound. Apart from the direct evidence on which the plaintiff sought to rely upon, the Court below proceeded on some inherent circumstances emanating from the record, ultimately to come to a conclusion that Ex. A-1 was not a genuine document. One of the strong circumstances upon which the Court below placed reliance was that there has been no reference whatsoever about Ex.A-1 in Ex.A-2 agreement, the execution whereof is an admitted fact. The other circumstance on which the Court below placed strong reliance was that the appellant as a tenant when intended to purchase the property under Ex.A-2, he ought to have demanded for execution of sale deed for the land covered by Ex.A-1 agreement first and there has been no need for him to wait for a period of two years after the demise of late Ramakotaiah.
16. It may be mentioned at the outset that the transactions in Ex.A-1 and A-2 are distinct and separate, both the documents are contracts of sale and not contracts of debt. I can understand, if they are contracts of debt, there must have been a reference of the previous contract of debt inter alia in the latter contract of debt. When the transaction under Ex.A-1 and A-2 are distinct and separate, in ordinary course, any prudent man could not expect any reference of the former contract of sale in the latter contract having not been germane to refer inter alia in the contract, to complete the same. Coming to the other stand, as to why before the execution of A.2 contract of sale, the sale deed has not been obtained pursuant to Ex.A-1, the Court below had totally lost sight of the condition recited therein that the sale deed was to be executed only after the expiry of the lease period. Therefore, a condition for the performance of the contract has been setforth in the document itself. If it is a fact that the plaintiff was in possession of the land covered by Ex.A-1 as a tenant, his failure to obtain the sale deed before Ex.A-2, in a way also probablises, the condition set forth in Ex.A-1 that the vendor agreed to execute the sale deed after the expiry of the lease period. It is therefore, necessary to consider whether the plaintiff was put in possession of the land covered by Ex.A-1 as a Lessee prior to the transaction as decided in Ex.A1.
17. It is no doubt true that no evidence has been let in, in proof of the lease and in proof of the payment of maktha as claimed by the plaintiff. The entire cross-examination made to this witness, has not shaken the testimony of P.W.1 given on oath about the lease. As against this, there is oral evidence of D.Ws.1 and 2, who are the defendants 2 and 3 in the suit and the widow and daughter respectively of late Ramakotaiah. D.W.1 in her evidence stated that she could not identify the signature of her husband. Her evidence further shows that she could sign only but could not read and write. Even the evidence of D.W.2 is to the same effect. The oral evidence of D.W.1 and D.W.2 frail, and is not definite, since they were not able to deny assertively the execution of Ex. A. 1 by late Ramakotiah and attestation by late Mallikarjuna Rao, specifically. The consequence thereof cannot be without any significance.
18. Apropos the appreciation of evidence of PW4-the handwriting expert, it is expedient to consider the law on the point in the first instance before making an endeavuor to appreciate the same.
19. In Shashi Kumar v. Subodh Kumar, , a Constitution Bench of the Apex Court held thus:
"Besides it is necessary to observe that expert's opinion as to handwriting is an opinion evidence and it can rarely, if ever, take the place of substantive evidence. Before acting on such evidence it is useful to see the evidence corroborated either by clear direct evidence or by circumstantial evidence."
Of course, in the circumstances of that case where there has been direct evidence of the attesting witnesses, the Apex Court was of the view that the evidence of the expert was not conclusive and could not falsify the evidence of the attesting witnesses.
20. In State of Gujarat v. Vinaya Chandra Chhota Lal Pathi, AIR 1967 SC 778, it was held thus:
"a Court is competent to compare disputed writings of a person with others which are admitted or proved to be his writings. It may not be safe for a Court to record a finding about a person's writing in certain document merely on the basis of comparison, but a Court can itself compare the writings in order to appreciate properly the other evidence produced before it in that regard. The opinion of handwriting expert is also relevant in view of Section 45 of the Evidence Act but that too is not conclusive. It has also been held that the sole evidence of a handwriting expert is not normally sufficient for recording a definite finding about the writing being of a certain person or not." (emphasis is mine).
21. In Fakhruddin v. State of Madhya Pradesh, AIR 1967 SC 1326, the Apex Court held thus:
"Both under Section 45 and Section 47 the evidence is an opinion, in the former by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experience. In either case the Court must satisfy itself by such means as are open that the opinion may be acted upon. One such means open to the Court is to apply its own observation to the admitted or proved writings and to compare them with the disputed one, not to become an handwriting expert but to verify the premises of the expert in the one case and to appraise the value of the opinion in the other case. This comparison depends on an analysis of the characteristics in the admitted or proved writings and the findings of the same characteristics in large measure in the disputed writing. In this way the opinion of the deponent whether expert or other is subjected to scrutiny and although relevant to start with becomes probative. Where an expert's opinion is given, the Court must see for itself and with the assistance of the expert come to its own conclusion whether it can safely be held that the two writings are by the same person. This is not to say that the Court must play the role of an expert but to say that the Court may accept the fact proved only when it has satisfied itself on its own observation that it is safe to accept the opinion whether of the expert or other witnesses." (emphasis is mine).
The Apex Court sent for the writings and compared them to satisfy itself about the accuracy of the expert's observations. In the process, it was of the view that the numerous idiosyncrasies in one are faithfully reproduced in the other and leave no manner of doubt as to the authorship of the applications. The Apex Court relied upon the former two judgments besides the judgments in Ram Chandra v. State of Uttar Pradesh, , and in Ishwari Prasad Misra v. Mohammad Isa, .
22. In Magan Bihari Lal v. State of Punjab, , it was held thus;
"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. It is unsafe to base a conviction solely on expert opinion without substantial corroboration. This type of evidence, being opinion evidence, is by its very nature, weak and infirm and cannot of itself farm the basis for a conviction."
All the judgments referred to supra except the judgment in State of Gujarat v. Vinaya Chandra Chhota Lal Pathi (supra) have been relied upon.
23. In State (Delhi Administration) v. Pali Ram, , the Apex Court held thus:
"Construed in the light of the English Law on the subject, which is the legislative source of this provision, it is clear that such comparison may be made by a handwriting expert (Section 45) or by one familiar with the handwriting of the person concerned (Section 47) or by the Court (Section 73). The two paragraphs of the section are not mutually exclusive. They are complementary to each other. Section 73 is therefore to be read as a whole in the light of Section 45.
In addition to Section 73, there are two other provisions resting on the same principle, namely Section 165, Evidence Act and Section 540, Cr.P.C. 1898, which between them invest the Court with a wide discretion to call and examine any one as a witness, if it is bona fide of the opinion that his examination is necessary for a just decision of the case.
The matter can be viewed from another angle, also. 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 any 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." (emphasis is mine).
24. In Murarilal v. State of Madhya Pradesh, AIR 1980 SC 531, the Apex Court in deviation to its earlier judgment in Pali Ram's case (supra) held thus:
"There is no rule of law, nor any rule of prudence which has crystallised into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of a handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight." (emphasis is mine).
It is obvious, therefore, the quality of the opinion given by the expert is material.
25. In State of Maharashtra v. Sukhdeo Singh, , it was held thus:
"A handwriting expert is a competent witness whose opinion evidence is recognised as relevant under the provisions of the Evidence Act and has not been equated to the class of evidence of an accomplice. It would, therefore, not be fair to approach the opinion evidence with suspicion but the correct approach would be to weigh the reasons on which it is based. The quality of his opinion would depend on the soundness of the reasons on which it is founded. But the Court cannot afford to overlook the fact that the science of identification of handwriting is an imperfect and frail one as compared to the science of identification of finger-prints; Courts have, therefore, been wary in placing implicit reliance on such opinion evidence and have looked for corroboration but that is not to say that it is a rule of prudence of general application regardless of the circumstances of the case and the quality of expert evidence. No hard and fast rule can be laid down in this behalf but the Court has to decide in each case on its own merits what weight it should attach to the opinion of the expert." (emphasis is mine).
26. In S. Gopal Reddy v. State of Andhra Pradesh, , placing reliance upon the judgment in Magan Bihari Lal's case (supra) it was held that the evidence of an expert is a rather weak type of evidence and the Courts do not generally consider it as offering 'conclusive' proof and, therefore, safe to rely upon the same without seeking independent and reliable corroboration.
27. In O. Bharatan v. K. Sudhakaran and Anr., , it was held in para 18 thus:
"On the peculiar facts of this case, the learned Judge erred in taking upon himself the task of comparing the disputed signatures on the counterfoils without the aid of an expert or the evidence of persons conversant with the disputed signatures. Therefore, the approach made by the learned Judge is not in conformity with the spirit of Section 73 of the Evidence Act. Though the rulings of this Court in State (Delhi Administration) v. Pali Ram, and Fakhruddin v. State of Madhya Pradesh, AIR 1967 SC 1326 were brought to his notice, the learned Judge proceeded to compare the disputed signatures by himself and decided the issue." (emphasis is mine).
While doing so, the Apex Court placed reliance upon its earlier two judgments in Pali Ram's case and Fakhruddin's case. In para 20, the Apex Court observed further thus:
"The learned Judge in our view was not right either in brushing aside the principles laid down by this Court in (Pali Ram's case) on the ground that it was not a criminal case or taking upon himself hazardous task of adjudicating upon the genuineness and authenticity of the signatures in question even without the assistance of a skilled and trained person whose services would have been easily availed of. Annulling the verdict of popular will is as much a serious matter of grave concern to the society as enforcement of laws pertaining to criminal offences, if not more. Though it is the province of the expert to act as Judge or Jury after a scientific comparison of the disputed signatures with admitted signatures, the caution administered by this Court is to the course adopted in such situations could not have been ignored arising out of the decision to the ultimately rendered."
It is obvious, therefore, that strict proof is not the criterion and depending upon the facts of the case and the serious consequences that would result in view of the judgment of the Court, the Court has to consider the desirability of obtaining the opinion from an Expert though not the expert opinion which itself is not decisive, the other evidence either direct or circumstantial shall go in aid of the decision of the Court when it chooses to invoke the provisions of Section 73 of the Evidence Act.
28. In Ajit Savant Majagavi v. State of Karnataka, , the Apex Court held thus:
"As a matter of extreme caution and judicial sobriety, the Court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature or handwriting and in the event of slightest doubt, leave the matter to the wisdom of experts. But this does not mean that the Court has not the power to compare the disputed signature with the admitted signature as this is clearly available under Section 73."
Again the Supreme Court placed reliance upon its earlier judgment in Pali Ram's case.
29. The law can thus be summarized that the proof of identification of handwriting or the signature, as the case may be, may be (1) by means of direct evidence; (2) by means of familiar evidence; (3) by means of comparison by the Court itself; (4) by the admission of parties; (5) by means of scientific comparison by an expert; and (6) by means of circumstantial evidence. By direct evidence means by examining the persons who are said to have been present at the time of writing of the disputed handwriting or signatures and by familiar evidence means by examining the persons who are conversant with the handwriting and signatures of the executant.
30. If the mode of proof is by means of an expert evidence, it all depends upon the quality of opinion given by the expert by assigning cogent and convincing reasons in support of his opinion. If the quality of the opinion given by the expert is impeccable, having been supported by cogent and good reasons, there is no need to seek for any corroboration. If for any reason, the quality of the opinion is weak, it shall not be the sole basis for arriving at the conclusion unless it is corroborated by other means. The evidence of the expert being opinion evidence, cannot falsify the convincing direct evidence. In either case the relative quality of the evidence that tilts the scales. Although, there has been no legal bar to the Judge using his own eyes to compare the disputed writings with the admitted writings; as a matter of prudence, extreme caution, and judicial sobriety, the Court should not normally take upon itself the responsibility of comparing the disputed signatures with that of the admitted signatures or handwritings and hesitate to base its findings with regard to the identity of the handwritings solely on such comparison made by itself. The power under Section 73 of the Evidence Act can be exercised by the Court ordinarily in normal course to test the veracity of the opinion given by the Expert or the other evidence adduced on the point by any one of the six modes enumerated above.
31. In this case, there is the direct evidence of P.W.1, who is said to have been present at the time of execution of Ex.A-1. Although P.W.2 did not speak about the execution of Ex.A-1 by late Ramakotaiah by appending his signature, he did speak about attestation of the document. He has expressed his inability to speak as discussed hereinabove. Though evidence of P.W.3 falls short of direct proof of late Ramakotaiah appending signature, in all other respects, it is proved that the execution of the document purportedly by the vendor under the said document. His evidence further proves the attestation of the said document by first defendant late Mallikarjuna Rao, In my considered view, the testimony of P.Ws 2 and 3 was circumstantial in nature, which lends support to the testimony of P.W.1, the direct evidence on the point. This evidence, both direct and circumstantial goes in support of the evidence of the expert P.W.4. Merely because the expert did speak about natural variations in between the disputed and admitted signatures, which are bound to occur in any case, it cannot be said that expert has not given the correct opinion. The opinion of P.W.4 is well supported by the cogent reasons given by him in my considered opinion, therefore, it shall receive its due consideration. For the foregoing reasons, the finding given by the Court below that Ex.A-1 is forged document cannot be accepted. As discussed by me above, there is nothing to doubt the capacity of P.W.1 to pay the consideration. The two strong improbabilities on which the Court below places reliance, viz., the non reference of Ex.A-1 inter alia in Ex.A-2 transaction and not obtaining the registered instrument pursuant to Ex.A-1 before Ex.A-2 transaction are no improbabilities at all as discussed by me hereinabove. It is a clear case, where by direct and circumstantial evidence and by the evidence of expert, Ex,-A-1 has been proved. When once the document is held to be genuine, there can be no other legal impediment for granting the relief of specific performance in favour of the plaintiff/appellant. No latches or inequity can be attributed to P.W.1, which ultimately disentitle him of the relief of specific performance. For the foregoing reasons, the judgment and decree now being impugned in this appeal, cannot be sustained.
32. In the result, the appeal is allowed and the impugned judgment and decree passed by the learned Principal Subordinate Judge, Narsaraopet, in O.S. No. 117 of 1983 are hereby set aside and the suit is decreed in favour of the plaintiff/appellant as prayed for. In the circumstances, there shall be no orders as to costs.