Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.78187819 OF 2009
Chennadi Jalapathi Reddy .....Appellant
Versus
Baddam Pratapa Reddy (Dead)
Thr Lrs. & Anr. .....Respondents
J U D G M E N T
MOHAN M. SHANTANAGOUDAR, J.
These appeals are directed against the impugned judgment
dated 12.06.2008 passed by the High Court of Andhra Pradesh at
Hyderabad in Appeal Suit No. 1404 of 2004 and CrossObjection
(SR) No. 50168 of 2004.
2. By the impugned judgment, the High Court has reversed
the judgment of the Trial Court dated 05.12.2003 passed by the
rd
III Additional District Judge at Karimnagar in O.S. No. 91 of
1996, in which the Trial Court had decreed the suit.
3. A suit for specific performance was filed by the plaintiff,
Signature Not Verified
Digitally signed by
SATISH KUMAR YADAV
Date: 2019.08.27
17:34:32 IST
Reason:
Chennadi Jalapathi Reddy (the appellant herein) in respect of the
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agreement of sale dated 20.04.1993 pertaining to House No.
15266 (new) situated at Kaman Road, Karimnagar. It is his case
that the first defendant in the suit, Baddam Pratapa Reddy (the
first respondent herein, now deceased) agreed to sell the suit
schedule house in his favour; that he was always ready and
willing to perform his part of the contract; and though he had
sufficient money to get the sale deed registered and had brought
the availability of money to the notice of the first defendant, the
latter did not execute the sale deed in his favour. The first
defendant and his brother, Baddam Ram Reddy, sold their
respective shares in the suit house in favour of the second
defendant, Neethi Satyanarayana (the second respondent herein)
after execution of the agreement of sale in favour of the plaintiff.
The suit was initially filed against the first defendant. The second
defendant was impleaded subsequently. It is relevant to note here
that the plaintiff purchased half of the suit property from the
second defendant after the impugned judgment was passed by
the High Court.
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The defendants in their written statement denied the case of
the plaintiff, specifically alleging that the agreement of sale is
forged.
On evaluation of the material on record, the Trial Court
decreed the suit. Vide the impugned judgment, the High Court
dismissed the suit and disposed of the appeal and cross
objections arising out of the judgment of the Trial Court. Hence,
the instant appeals have been preferred before this Court.
4. During the trial, the agreement of sale Ext. A1 was sent for
obtaining expert opinion on the genuineness of the signature of
the first defendant thereon. DW2 is the expert who examined it
and his report is at Ext. B2. He opined that the admitted
signatures of the first defendant and the disputed signature do
not tally, thereby meaning that it is forged. The Trial Court
considered this expert opinion, but preferred not to rely on it,
inasmuch as it ruled that the expert opinion was not
corroborated by any reliable evidence. It also held that the
evidence of the attesting witnesses (PWs 2 and 3) is cogent and
reliable, and there is no reason why their evidence should be
disbelieved to give way to the expert opinion.
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Per contra, the High Court solely relied upon the expert
opinion and dismissed the suit by concluding that the signature
of the first defendant on the agreement of sale Ext. A1 is forged.
5. From the discussion of the High Court in arriving at this
conclusion, we find that it has not assigned any valid reason for
disbelieving the attesting witnesses PWs 2 and 3. In fact, with
respect to their evidence, the High Court made certain
observations which are against the evidence on record. Similarly,
with respect to PW1, the High Court observed that he had not
deposed as to the presence of the third attestor, Krishna Murthy,
at the time of execution of the agreement of sale. However, it is
clear from the evidence of PW1 that he has specifically deposed
about the presence of Krishna Murthy at that time. It was also
wrongly observed by the High Court that PWs 1 and 2 are silent
as to the time and place of the execution of the agreement.
However, in his examinationinchief, PW2 has clarified that the
first defendant executed this agreement at the suit schedule
house, at a time when he was residing there and the plaintiff was
residing in the western side of the house, etc. From the
aforementioned facts, it is clear that the High Court disbelieved
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the evidence of the plaintiff (PW1) and the attestors (PWs 2 and 3)
on mere assumptions and wrong reasons.
6. In any case, to satisfy our conscience, we have gone through
the evidence of PWs 1, 2, and 3. As rightly observed by the Trial
Court, there is no reason to disbelieve these witnesses, whose
evidence is consistent, cogent, and reliable. Though they were
subjected to lengthy crossexamination, nothing noteworthy has
been brought out from their deposition to discard their evidence.
Thus, the evidence of PWs 1, 2, and 3 fully supports the case of
the plaintiff and in our considered opinion, the High Court was
not justified in rejecting their evidence.
7. As mentioned supra, the High Court mainly relied upon the
opinion evidence of DW2, the handwriting expert, who opined
that the signature of the first defendant on the agreement of sale
Ext. A1 did not tally with his admitted signatures.
8. By now, it is wellsettled that the Court must be cautious
while evaluating expert evidence, which is a weak type of
evidence and not substantive in nature. It is also settled that it
may not be safe to solely rely upon such evidence, and the Court
may seek independent and reliable corroboration in the facts of a
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given case. Generally, mere expert evidence as to a fact is not
regarded as conclusive proof of it. In this respect, reference may
be made to a long line of precedents that includes
Ram Chandra
and Ram Bharosey v. State of Uttar Pradesh , AIR 1957 SC
381, Shashi Kumar Banerjee v. Subodh Kumar Banerjee , AIR
1964 SC 529, , (1977) 2
Magan Bihari Lal v. State of Punjab
SCC 210, and S. Gopal Reddy v. State of Andhra Pradesh ,
(1996) 4 SCC 596.
We may particularly refer to the decision of the Constitution
Bench of this Court in (supra), where it
Shashi Kumar Banerjee
was observed that the evidence of a handwriting expert can rarely
be given precedence over substantive evidence. In the said case,
the Court chose to disregard the testimony of the handwriting
expert as to the disputed signature of the testator of a Will,
finding such evidence to be inconclusive. The Court instead relied
on the clear testimony of the two attesting witnesses as well as
the circumstances surrounding the execution of the Will.
9. On the other hand, in Murari Lal v. State of Madhya
, (1980) 1 SCC 704, this Court emphasised that reliance
Pradesh
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on expert testimony cannot be precluded merely because it is not
corroborated by independent evidence, though the Court must
still approach such evidence with caution and determine its
creditworthiness after considering all other relevant evidence.
After examining the decisions referred to supra, the Court was of
the opinion that these decisions merely laid down a rule of
caution, and there is no legal rule that mandates corroboration of
the opinion evidence of a handwriting expert. At the same time,
the Court noted that Section 46 of the Indian Evidence Act, 1872
( hereinafter “the Evidence Act”) expressly makes opinion evidence
open to challenge on facts.
In Alamgir v. State (NCT, Delhi) , (2003) 1 SCC 21, without
referring to Section 46 of the Evidence Act, this Court reiterated
the observations in (supra) and stressed that the
Murari Lal
Court must exercise due care and caution while determining the
creditworthiness of expert evidence.
10. In our considered opinion, the decisions in Murari Lal
(supra) and (supra) strengthen the proposition that it is
Alamgir
the duty of the Court to approach opinion evidence cautiously
while determining its reliability and that the Court may seek
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independent corroboration of such evidence as a general rule of
prudence. Clearly, these observations in Murari Lal (supra) and
(supra) do not go against the proposition stated in
Alamgir
Shashi Kumar Banerjee (supra) that the evidence of a
handwriting expert should rarely be given precedence over
substantive evidence.
11. In light of these principles, it is necessary to evaluate the
correctness of the findings of the High Court as to the
genuineness of the signature of the first defendant on Ext. A1.
12. As mentioned earlier, Ext. A1 is the agreement of sale
entered into by the plaintiff and the first defendant. Ext. A2 is
the receipt evidencing the payment of earnest money of Rs.
61,200/ in pursuance of this agreement of sale. The receipt
bears the signature of the first defendant on the revenue stamps
affixed thereon. Curiously, Ext. A2 was not sent for obtaining
expert opinion. At the same time, no reliable material was
brought on record that the first defendant has not received the
amount under Ext. A2. In the absence of any challenge to the
first defendant’s signature on Ext. A2, and in the absence of any
reliable material produced by the first defendant to deny the
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receipt of such earnest money, the High Court, in our considered
opinion, should have relied upon this receipt. In fact, we find that
the High Court has not considered Ext. A2 in its entire
judgment. As a matter of fact, Ext. A1 and Ext. A2 go hand in
hand, and Ext. A2 should not have been ignored by the High
Court.
Moreover, merely because the plaintiff’s signature was not
present on the agreement of sale, this would not ipso facto nullify
the agreement altogether. This is because the agreement was
signed by the first defendant and clearly reveals that he had
agreed to sell the property to the plaintiff for a due consideration
of Rs. 1,20,000/. This agreement was followed by Ext. A2,
which shows the payment and receipt of the earnest money. In
addition to the signature of the first defendant, this receipt bears
the signature of the plaintiff on revenue stamps. As mentioned
earlier, Ext. A1 and Ext. A2 are part of the same transaction.
Thus, the contention that absence of the plaintiff’s signature on
Ext. A1 nullifies the agreement altogether, cannot be accepted.
In addition to this, the evidence of DW3 (the brother of the
first defendant) belies the allegation of the first defendant that
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the signature found on Ext. A1 is forged. DW3 specifically
admitted during his crossexamination that he could identify the
signature of the first defendant, who is his elder brother. He has
further admitted that Ext. A1 and Ext. B1 bears the signature
of the first defendant. It may be noted here that a partition had
taken place between the first defendant and DW3 in the year
1980, and such partition was effected through Ext. B1, an
unregistered partition deed. Crucially, the first defendant has
also admitted his signature on Ext. B1 in his crossexamination.
Thus, it is clear that such admitted signature and the disputed
signature of the first defendant have been identified by his
brother as those of the first defendant himself.
13. Undoubtedly, the opinion of a handwriting expert is a
relevant fact under Section 45 of the Evidence Act. Under Section
47 of the Evidence Act, the opinion of any person acquainted with
the handwriting of the person by whom it is supposed to be
written or signed is also a relevant fact.
Per the explanation to Section 47 of the Evidence Act, a
person is said to be acquainted with the handwriting of another
person when he has seen that person write, or when he has
10
received documents purported to be written by that person in
answer to documents written by himself or under his authority
and addressed to that person, or when, in the ordinary course of
business, documents purporting to be written by that person
have been habitually submitted to him.
14. A reading of Section 47 of the Evidence Act makes it clear
that this provision is concerned with the relevance of the opinion
of a person who is acquainted with the handwriting of another
person. The Explanation to this Section goes on to enumerate the
circumstances in which a person may be said to have such
acquaintance.
In the matter at hand, DW3, in his crossexamination, has
identified the disputed signature of the first defendant (his elder
brother) on Ext. A1. He also stated that the suit schedule house
was constructed when he was 25 years old; a partition was
effected in 1980, after which he and the first defendant occupied
their respective shares in the house; and that he finally sold his
share in 1996 (when he was aged about 58 years). This goes on
to show that DW3 lived and resided with the first defendant in
the same house for over three decades. Moreover, as mentioned
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earlier, DW3 identified the first defendant’s signature on Ext. B
1 (the partition deed), which has been admitted by the first
defendant himself. In light of this, and given that DW3 came in
to support the case of his brother, the first defendant before the
Court, it can be inferred that their relations were cordial even
after partition and that DW3 would have seen the latter write on
multiple occasions in normal course of family affair. Thus, it is
clear that, he was acquainted with the handwriting of the first
defendant in terms of the Explanation to Section 47 of the
Evidence Act. This makes his opinion as to the disputed
handwriting a relevant fact under Section 47.
At this juncture, it would be apposite to observe that the
weight to be accorded to such an opinion depends on the extent
of familiarity shown by the witness with the disputed
handwriting. This, in turn, depends on the frequency with which
the witness has had occasion to notice and observe the
handwriting, his own power of observation, and how recent such
observations were. In light of the facts discussed above, which go
on to show the familiarity of DW3 with the handwriting of the
first defendant, we conclude that the testimony of DW3 may
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safely be relied upon, and must be accorded similar, if not
greater, weight than the expert evidence adduced by the
defendants to advance their case. This conclusion is further
strengthened by the fact that the first defendant neither
challenged DW3’s admission nor his acquaintance with the
disputed handwriting, although it was open for him to do so by
way of reexamination.
15. The admission by DW3 is further supported by the cogent
and consistent testimony of the plaintiff (PW1) and attesting
witnesses (PWs 2 and 3), and the fact that the first defendant has
not denied his signature on Ext. A2 (the receipt of payment of
earnest money). Having regard to the totality of the facts and
circumstances, we conclude that the disputed signature of the
first defendant on Ext. A1 is genuine. Moreover, keeping in mind
the principle that expert evidence should not be given precedence
over substantive evidence, in our considered opinion, the High
Court was not justified in giving precedence to the opinion of the
expert (DW2) and solely relying upon his testimony to set aside
the judgment and decree of the Trial Court.
13
In any case, to satisfy our conscience, we have examined
the admitted and disputed signatures ourselves, and find that
the signatures are virtually the same. However, in this case, it is
unnecessary for us to rely on our own comparison in light of the
material on record, as discussed above. We hasten to emphasize
that we have not been prejudiced by our own comparison in
appreciating the evidence and reaching our conclusion.
16. There is another reason why we are not inclined to place
reliance on the opinion of the expert DW2. From a perusal of his
report Ext. B2, it is evident that barring the signature on a
written statement in a prior suit, all other admitted signatures of
the first defendant are of a period subsequent to the filing of the
plaint (i.e. on the vakalatnama and the written statement filed in
this suit itself). These admitted signatures taken subsequent to
the filing of the suit could not have been used as a valid basis of
comparison, and their use for this purpose casts serious doubt
on the reliability of the entire report Ext. B2. Thus, the report
was liable to be discarded on this ground alone, and was wrongly
relied upon by the High Court.
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17. Moreover, the High Court has wrongly observed that the
plaintiff has not produced any evidence to prove that he
demanded the performance of sale after the execution of the
agreement of sale. The filing of a suit for specific performance of
an agreement of sale is governed by Section 16(c) of the Specific
Relief Act, 1963, read with Article 54 of the Schedule of the
Limitation Act, 1963. In addition to this, Forms 47 and 48 of
Appendix A of the Code of Civil Procedure, 1908 prescribe the
format of the plaint for such a suit. Thus, a plaint which seeks
the relief of specific performance of an agreement/contract must
comply with all these requirements. In the matter at hand, the
plaintiff has specifically averred in his plaint that he was ready
and willing to perform his part of the contract under the
agreement of sale dated 20.04.1993. It was also specifically
stated that the plaintiff had been demanding that the first
defendant receive the balance consideration of Rs. 58,800/ and
execute a regular registered sale deed at his cost, but the first
defendant had been avoiding the specific performance of the
agreement of sale. In light of this, in our considered opinion, all
the formalities which are to be pleaded and proved by the plaintiff
for getting a decree of specific performance have been fulfilled.
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Moreover, there cannot be any proof of oral demand. Be that as
it may, we are satisfied from the evidence that the plaintiff had
sufficient money to pay the balance consideration to the first
defendant and was ready and willing to perform his part of the
contract.
18. In view of the aforementioned reasons, the impugned
judgment of the High Court is liable to be set aside. Accordingly,
the judgment and decree passed by the Trial Court stands
restored. The appeals are allowed accordingly.
..........................................J.
(N.V. Ramana)
...........................................J.
(Mohan M. Shantanagoudar)
...........................................J.
(Ajay Rastogi)
New Delhi;
August 27, 2019.
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