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2025 Supreme(Online)(KER) 5944
HIGH COURT OF KERALA
K. Babu, J
JOSEPH STANLEY – Appellant
Versus
STEEVE XAVIER – Respondent
OP(C) 1945/2020
SRI.B.PRAMOD, SMT.NAMITHA JYOTHISH, SRI.JAGADEESH, SRI.V.RENJU(K/2317/1999), SRI.NIKHEL K GOPINATH(K/000352/2016)
The court ruled that signatures can be compared under Section 73 of the Indian Evidence Act, allowing expert testimony to establish authenticity, even if the signature is not admitted.
Headnote:(A) Indian Evidence Act, 1872 - Sections 45, 47, and 73 - Comparison of signatures - The court examined the applicability of Section 73 regarding the comparison of signatures in a dispute over an agreement for sale after the seller's death - The plaintiff sought to prove the signature of the deceased seller by comparing it with a previously executed agreement - The trial court dismissed the application on grounds that the signature was not admitted - The court found that the signature in question was relevant for expert opinion and that the witness sought to be examined was competent under Section 47 - The impugned order was set aside, allowing the plaintiff's application. (Paras 10-16)
(B) Expert Opinion - The court emphasized the significance of expert opinions in determining the identity of handwriting, as per Section 45 of the Evidence Act. (Paras 13-14)
Facts of the case:
The plaintiff executed an agreement for sale with the deceased seller, who had previously entered into a similar agreement with another party. After the seller's death, the plaintiff sought to recover the advance amount from the seller's legal representative. The trial court dismissed the plaintiff's application to summon a witness to compare signatures.
Findings of Court:
The court held that the trial court's dismissal was erroneous and that the witness's testimony was relevant for establishing the signature's authenticity.
Issues: The main issues were whether the signature could be compared under Section 73 and the competency of the witness to provide evidence regarding the signature.
Ratio Decidendi: The court ruled that the signature in question was relevant for expert opinion and that the witness was competent to testify, thus allowing the application to summon the witness.
Result: Original Petition allowed.
| Table of Content |
|---|
| 1. petitioner's argument on section 73 (Para 8) |
| 2. respondent's contention on witness (Para 9) |
| 3. trial court's dismissal reasoning (Para 10 , 12) |
| 4. relevance of signature for expert opinion (Para 11) |
| 5. significance of section 45 (Para 13 , 14 , 15) |
| 6. impugned order set aside (Para 16) |
JUDGMENT
The prayers in this Original Petition filed under Article 227 of the Constitution of India are as follows:-
(i)Pass an order setting aside the Ext.P7 order dated 25.08.2020 in Ext.P6 I.A.no.4355/2019 in O.S.No.567/2015 of the Munsiff’s Court, Alappuzha and allowing the prayer in the said I.A.;
(ii)Grant such other reliefs and this Hon’b le Court deems fit and proper in the facts and circumstances of the case.
2. The petitioner is the plaintiff in O.S.No.567/2015 on the file of the Principal Munsiff’s Court, Alappuzha.
3. The brief facts required for the adjudication of the matter are as follows:-
The plaintiff executed an agreement for sale in respect of an immovable property on 23.12.2013. One Sajith Xavier agreed to sell the immovable property to the plaintiff. Sri.Sajith Xavier died before the performance of the contract. The plaintiff, thereafter instituted the suit for realisation of the advance amount from the sole legal representative of Sri.Sajith Xavier (the defendant). Sri.Sajith Xavier had earlier, on 29.08.2013, entered into an agreement for sale in respect of the same property with one Sri.Harikumar. It was after the cancellation of that agreement (Ext.P4), Sajith Xavier executed the 2nd agreement in favour of the plaintiff.
4. In the suit, the defendant contended that the signature found in the agreement was not afÏxed by Sri.Sajith Xavier.
5. The plaintiff filed I.A.No.1698/2019 seeking to send the document for expert opinion. While that application was pending, the plaintiff filed I.A.No.4355/2019 requesting to summon one Sri.Harikumar in whose favour the first agreement was executed by Sajith Xavier. The attempt of the plaintiff was to prove that Sri.Sajith Xavier afÏxed his signatures in Ext.P4, and thereby he wanted to get the signature stated to have been afÏxed by Sajith Xavier in the second agreement compared with the signature in Ext.P4.
6. The Trial Court dismissed the application holding that the signature of Sri.Sajith Xavier in the first agreement has not been admitted.
7. I have heard the learned counsel for the petitioner and the learned counsel for the respondent.
8. The learned counsel for the petitioner submitted that the mandate of Section 73 of the Indian Evidence Act is that in order to ascertain whether a signature is that of the person by whom it purports to have been made, any signature admitted or proved to the satisfaction of that Court to have been made or put by that person may be compared with the one which is to be proved. The learned counsel has also taken me to Sections 45 and 47 of the Indian Evidence Act to contend that the question whether a certain document was written by one person, the opinion of the expert on the question whether the two documents were written by the same person or different person are relevant. The learned counsel further submitted that as per Section
47 of the Indian Evidence Act, a person said to be acquainted with the handwriting or signature of one person is a relevant witness to prove that a particular person afÏxed his signature in the document in dispute.
9. The learned counsel for the respondent submitted that the witness sought to be examined has not afÏxed his signature in Ext.P4, and therefore, he is not a competent witness to be examined.
10. The basis of the finding of the Trial Court is that the signature (stated to have been afÏxed by Sajith Xavier in Ext.P4) sought to be proved by the plaintiff is not admitted and therefore, the provisions of Section 73 cannot be made applicable. Section 73 of the Indian Evidence Act reads thus:-
“Section73 : Comparison of signature, writing or seal with others admitted or proved:-
In order to ascertain whether a s
