Jharkhand High Court
Ajay Choubey vs Sushila Devi on 29 April, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
[2025:JHHC:12848 ]
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No. 698 of 2024
1. Ajay Choubey, son of Haldar Prasad Choubey,
aged about 55 years, resident of Near Sadhan Kutir,
Chouthai Kulhi, Jharia, P.O. & P.S. Jharia, District
Dhanbad.
2. Rahul Choubey, son of Haldar Prasad Choubey,
aged about 44 years, resident of 164 B, Nag Nagar
Village Susnilewa, P.S. Barwadda, Р.О.
Bharwardaha, District Dhanbad.
..... ... Petitioners
Versus
1. Sushila Devi, wife of Late Haldhar Prasad
Choubey, resident of Jharia Main Road, P.O. & P.S.
Jharia, District Dhanbad.
2. Binay Choubey, son of Haldar Prasad Choubey,
resident of Near Sadhan Kutir, Chouthai Kulhi,
Jharia, P.O. & P.S. Jharia, District Dhanbad.
..... ... Opposite Parties
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioners : Mr. Rohitashya Roy, Advocate.
: Mr. Tarun Kumar Mahto, Advocate
For the O.P. No. 1 : Mr. Shailesh Kumar Singh, Advocate
: Mr. Abhijeet Kumar Singh, Advocate.
: Mrs. Rashmi Lal, Advocate.
------
08/ 29.04.2025 Heard Mr. Rohitashya Roy, learned counsel appearing for
the petitioners and Mr. Shailesh Kumar Singh, learned counsel appearing for the O.P. No. 1.
2. Notice upon O.P. No. 2 has already been effected and the matter was earlier adjourned with a view to provide one more opportunity to the O.P. No. 2 on 25.03.2025, however, appearance on behalf of O.P. No. 2 has not been made and further it has been pointed out that the O.P. No. 2 is the proforma opposite party, as such, this petition is being heard in absence of O.P. No. 2.
-1-[2025:JHHC:12848 ]
3. This petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 28.06.2024, passed by the District Judge-VI, Dhanbad, in Original Suit (Probate) No. 02 of 2018, whereby learned court has been pleased to dismiss the petition dated 28.07.2022 filed by the petitioner under Section 45 of the Indian Evidence Act, 1872.
4. Mr. Rohitashya Roy, learned appearing for the petitioners submits that the O.P. No. 1 has instituted the proceeding for grant of probate with respect to the alleged Will dated 29.08.2012 executed by the deceased Haldhar Prasad Choubey. He submits that the O.P. No. 1 inter alia stated that the said Haldhar Prasad Choubey married with the opposite party no. 1 on 14.12.1991 after his first wife expired on 23.11.1989. The testator of the Will was a qualified advocate and he drafted the said Will in his own handwriting and executed the same on 29.08.2012 whereby the testator appointed the opposite party no. 1 as the executor of the Will, in view of that the O.P. No. 2 has stated that the Will is genuine and accordingly, prayed for grant of probate with respect to the said Will. He further submits that the proforma opposite party no. 2 appeared in the said probate proceeding and filed her show cause stating inter alia that the said Haldhar Prasad Choubey never executed any Will.
5. He then submits that during the pendency of the said probate case, the petitioners herein and the proforma opposite party no.
2 filed a petition under Section 45 of the Evidence Act read with Order XXVI Rule 10A of the Code of Civil Procedure for referring the documents for verifying the signature of Haldhar Prasad Choubey on the Will with an admitted document i.e. the passport of the deceased Haldhar Prasad Choubey, which has been marked as Exhibit-5. He then -2- [2025:JHHC:12848 ] submits that the learned court has rejected the same and decided looking into Exhibits-2 and 5 that the signature is same. He submits that although in the rejoinder, O.P. No. 1 has stated that she has got no objection, if the said signature is sent for verification to Government Forensic Lab. He submits that in view of that the learned court has ought to allow the said petition, however, it has been rejected.
6. Learned counsel further submits that if two disputed signatures are there, the learned court is bound to send the same to the Forensic Lab and to buttress his argument, he relied in the case of Thiruvengadam Pillai Versus Navaneethammal & Anr., reported in (2008) 4 SCC 530, wherein the Hon'ble Supreme Court in paras-10, 15 and 16 has held as under:-
"10. On the contentions urged, the following questions arise for consideration:
(i) Whether the agreement of sale executed on two stamp papers purchased on different dates and more than six months prior to date of execution is not valid?
(ii) Whether the first appellate court was justified in comparing the disputed thumb impression with the admitted thumb impression and recording a finding about the authenticity of the thumb impression, without the benefit of any opinion of an expert?
(iii) Whether the High Court erred in reversing the judgment of the first appellate court in second appeal?
Re: Question (ii)
15. Section 45 of the Evidence Act, 1872 relates to "opinion of experts". It provides inter alia that when the court has to form an opinion as to identity of handwriting or finger impressions, the opinion upon that -3- [2025:JHHC:12848 ] point of persons specially skilled in questions as to identity of handwriting or finger impressions are relevant facts. Section 73 provides that in order to ascertain whether a finger impression is that of the person by whom it purports to have been made, any finger impression admitted to have been made by that person, may be compared with the one which is to be proved. These provisions have been the subject-matter of several decisions of this Court.
15.1. In State v. Pali Ram [(1979) 2 SCC 158 : 1979 SCC (Cri) 389] this Court held that a court does not exceed its power under Section 73 if it compares the disputed writing with the admitted writing of the party so as to reach its own conclusion. But this Court cautioned: (SCC p. 168, para 30) "30. ... 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."
The caution was reiterated in O. Bharathan v. K. Sudhakaran [(1996) 2 SCC 704] .
-4-[2025:JHHC:12848 ] Again in Ajit Savant Majagvai v. State of Karnataka [(1997) 7 SCC 110 : 1997 SCC (Cri) 992] referring to Section 73 of the Evidence Act, this Court held: (SCC p. 122, paras 37-38) "37. ... The section does not specify by whom the comparison shall be made.
However, looking to the other provisions of the Act, it is clear that such comparison may either be made by a handwriting expert under Section 45 or by anyone familiar with the handwriting of the person concerned as provided by Section 47 or by the Court itself.
38. 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 the 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 power is clearly available under Section 73 of the Act."
15.2. In Murari Lal v. State of M.P. [(1980) 1 SCC 704 : 1980 SCC (Cri) 330] this Court indicated the circumstances in which the court may itself compare disputed and admitted writings thus: (SCC p. 712, para
12) "12. The argument that the court should not venture to compare writings itself, as it would thereby assume to itself the role of an expert is entirely without force. Section 73 of the Evidence Act expressly enables the court to compare disputed writings with admitted or proved writings to ascertain whether a -5- [2025:JHHC:12848 ] writing is that of the person by whom it purports to have been written. If it is hazardous to do so, as sometimes said, we are afraid it is one of the hazards to which judge and litigant must expose themselves whenever it becomes necessary. There may be cases where both sides call experts and two voices of science are heard. There may be cases where neither side calls an expert, being ill-able to afford him. In all such cases, it becomes the plain duty of the court to compare the writings and come to its own conclusion. The duty cannot be avoided by recourse to the statement that the court is no expert. Where there are expert opinions, they will aid the court. Where there is none, the court will have to seek guidance from some authoritative textbook and the court's own experience and knowledge. But discharge it must, its plain duty, with or without expert, with or without other evidence."
The decision in Murari Lal [(1997) 7 SCC 110 : 1997 SCC (Cri) 992] was followed in Lalit Popli v. Canara Bank [(2003) 3 SCC 583 : 2003 SCC (L&S) 353] .
16. While there is no doubt that court can compare the disputed handwriting /signature/ finger impression with the admitted handwriting / signature / finger impression, such comparison by court without the assistance of any expert, has always been considered to be hazardous and risky. When it is said that there is no bar to a court to compare the disputed finger impression with the admitted finger impression, it goes without saying that it can record an opinion or finding on such -6- [2025:JHHC:12848 ] comparison, only after an analysis of the characteristics of the admitted finger impression and after verifying whether the same characteristics are found in the disputed finger impression. The comparison of the two thumb impressions cannot be casual or by a mere glance. Further, a finding in the judgment that there appeared to be no marked differences between the admitted thumb impression and disputed thumb impression, without anything more, cannot be accepted as a valid finding that the disputed signature is of the person who has put the admitted thumb impression. Where the court finds that the disputed finger impression and admitted thumb impression are clear and where the court is in a position to identify the characteristics of fingerprints, the court may record a finding on comparison, even in the absence of an expert's opinion. But where the disputed thumb impression is smudgy, vague or very light, the court should not hazard a guess by a casual perusal."
7. Relying on the above judgment, he submits that the learned court has wrongly passed the said order and the ratio laid down by the Hon'ble Supreme Court in the above case is in favour of the petitioners, as such, the impugned order may kindly be set aside.
8. Per contra, Mr. Shailesh Kumar Singh, learned counsel appearing for the O.P. No. 1 has opposed the prayer and submits that the learned court has rightly passed the said order. He submits that the signature in question is not in dispute and Exhibit-5 is the Passport and Exhibit-2 is the signature in the Will itself. He further submits that the intention of O.P. No. 1 is very clear, in view of her rejoinder filed -7- [2025:JHHC:12848 ] before the learned court disclosing everything, which suggests that the genuineness of the signature is there. On these grounds, he submits that the learned court has rightly passed the order.
9. It is an admitted position that the Original Suit (Probate) No. 02 of 2018 was instituted for probate of the Will, which was instituted by the O.P. No. 1, in which, the petitioners herein and proforma O.P. No. 2 have appeared and during the pendency of the said probate case, a petition has been filed for comparing of the signature of the Will of Haldhar Prasad Choubey, wherein the learned court has found that the signature on Exhibits-2 and 5 are similar, in view of that he has not sent the same to the expert.
10. Admittedly on the passport, the signature is scanned and the Will is of later on period and in view of that the Will by way of mechanical process does not show the accuracy on the ground of signature, defected photocopy, which is found to be passport herein as Exhibit-5 and there is every possibility of change of signature due to passage of time and there is every possibility to sign on the document in disguise so as to obtain a favourable opinion from handwriting expert.
What is required as per law is that any authentic contemporaneous document containing signature of the parties to be reflected along with disputed signature for comparison. Coming to the facts of the present case, no contemporaneous signature or document has been produced before the learned court, for such exercise and further the learned court is competent to look into and find out the signature whether it is similar or not, that has been done by the learned court and even it is allowed, it is not going to help to the trial Court in effectively adjudicating the lis more particularly in the light of the admitted legal position that expert's opinion evidence as to handwriting or signatures can rarely, if ever, take -8- [2025:JHHC:12848 ] the place of substantive evidence.
11. Section 45 of the Evidence Act enable the Court to obtain the opinion of an expert on various aspects, including the one relating to the comparison of disputed signatures. Further an expert would be in a position to render his opinion, only when the original of the document containing the disputed signature is forwarded to him. Further, there can be effective comparison and verification of the signatures, if only another document containing the undisputed signatures of the contemporary period are made available to the expert. These analysis would become possible only vis-a-vis an original signature: and the signature mark: on a xerox copy of a document can never constitute the basis.
12. In light of the above, the court finds that in absence of any contemporaneous signature, the learned court has rightly passed the order. As such, this petition is dismissed.
13. However, the observation made therein of genuineness of the Will, will not prejudice the case of either of the partiers, as in the Will, the genuineness of the Will is one of the issue, which can be decided only by way of evidence to be led by both the sides and in view of the above, the finding recorded in the impugned order will not prejudice the case of either of the parties and further it is open for the parties to prove their case before the learned court in accordance with law.
(Sanjay Kumar Dwivedi, J.) Amitesh/-
[A.F.R.] -9-