Examination of disputed handwriting by Court.

Abdul Hadi, J.

1. This Second appeal arises out of O.S.No. 157 of 1977 on the file of the District Munsifs Court, Sattur, filed by the plaintiff-appellant for specific performance of the sale agreement Ex.A-1, dated 15-12-1974 for selling the suit property belonging to the defendant, to the plaintiff for Rs. 700. Out of the above said sum of Rs. 700, Rs. 400 had already been paid as advance. The trial court decreed the suit, but on appeal by the defendant, the 1st appellate court reversed the judgment and decree of the trial court and dismissed the suit; Hence, the second appeal by the plaintiff.

2. The defence to the suit is that the defendant did not sign Ex.A-1 and there was no agreement between the parties for selling the properties. The plaintiff, apart from examining himself as P.W.1, examined the two attestors P.Ws.2 and 4 and the scribe of the document P.W.3, who is no doubt the father of the plaintiff. The defendant examined herself as D.W.1. There was no other witness on her side. TO the suit notice Ex.A-2, dated 25-7-1977, there was only a belated reply Ex.B-1, dated 19-9-1977.

2. Since the signature of the defendant in Ex.A-1 is disputed the trial court compared it with the signature of the defendant in her vakalat and the written statement and came to the conclusion that it is hers only and, in the light of other evidence also, decreed the suit. But, the lower appellate court reversed the judgment and decree of the trial court. One of the grounds on which the reversal was made is that the trial court cannot by itself compare the signature in Ex.A-1 with that in the written statement and vakalat of the defendant and come to the conclusion it has reached. In its opinion, the trial court is not an expert to compare the signatures. It is on this point the substantial question of law was framed as follows:

Whether the lower appellate court is right in holding that the trial court not being an expert, committed an error in comparing the defendant's admitted signature in the written statement with that of the signature in Ex. A-1, in view of the specific provisions contained in Section 73 of the Indian Evidence Act ?

3. But on the point, there can be no two opinion. It is not essential that the handwriting expert must be examined to prove or disapprove a writing. The Court is competent to compare the disputed writing with the writing admitted or proved to be that of the person concerned. Of course, the Court may get the writing compared by an expert and examine him if it thinks fit to do so. But it is not bound to do so. (Vide State of Gujarat v. Vinaya Chandra 1967 M.L.J. (Crl) 442 : (1967) 1 S.C.J. 821 : 1967 Crl. LJ.668 A.I.R. 1967 S.C.778 Section 73 of the Evidence Act does not specifically state by whom the comparison should be made. However, the second paragraph of the Section, dealing with the related subject, expressly provides by way of contrast that in that particular connection the court may make the comparison. The comparison can be made either by witness acquainted with the hand-writing or by expert witnesses skilled in deciphering hand-writing, or without the intervention of any witnesses at all, by jury themselves, or in the event of there being no jury, by the court, (Vide Woodroffe & Amir Ali's Law of Evidence, 14th Edition Volume II, Page 1678). In the present case, apart from the comparison by the Court, P.Ws.2 and 4, who attested the signature of the defendant, have also deposed that it is only her signature. No doubt, the defendant, when she gave evidence as D.W.1, denied her own signature signed in the vakalat as well as in the written statement. She is only an illiterate lady and the appellate court also finds that out of fear she has denied so.

4. The other ground, on which the appellate Court allowed the appeal is that there was some enmity between the plaintiff's father and the defendant prior to the execution of Ex.A-1 and that hence there was no "sufficient evidence beyond any doubt" to prov