RFA No. 864/2015 (P. B. Jeevakumar v. Biju M. Johny) against the judgment and decree in O.S. No. 187/2006, Sub Court, Kottarakkara

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN THURSDAY, THE 01ST DAY OF AUGUST 2019 / 10TH SRAVANA, 1941 ## RFA.No.864 OF 2015 AGAINST THE JUDGMENT AND DECREE IN OS 187/2006 DATED 04-02-2015 OF SUB COURT,KOTTARAKKARA ## APPELLANT/DEFENDANT: P B JEEVAKUMAR, AGED 51 YEARS, S/O. BHANU PANICKER, PUSHPAMANGALATHU VEEDU, PUNALUR MURI, PUNALUR VILLAGE, PATHANAPURAM TALUK. BY ADVS. SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.S.NITHIN (ANCHAL) SRI.SABU GEORGE SRI.P.B.SUBRAMANYAN ## RESPONDENT/PLAINTIFF: BIJU M JOHNY AGED 46 YEARS S/O. JOHNY, RESHMA VILLA, CHEMMANTHOOR, PUNALUR MURI, PUNALUR VILLAGE, PATHANAPURAM TALUK - 691 001. BY ADV. SRI.P.K.BABU THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 01.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RFA No. 864/2015 -2- ## **JUDGMENT** Annie John,J. The appellant, who is the owner of the plaint schedule property, is the defendant in O.S. No. 187 of 2006 on the file of the Subordinate Court, Kottarakkara. The respondent is the plaintiff in the aforesaid suit, which was filed for specific performance of an agreement for sale and also for injunction. 2. The case of the respondent/plaintiff is that on 06.07.2005, the defendant executed an agreement for sale in favour of the plaintiff agreeing to sell the plaint schedule property for a total consideration of Rs.45,25,000/- and he received an amount of Rs.5,00,000/- as advance sale consideration. The period of agreement was one year from the date of agreement. Thereafter, the defendant received Rs.2,00,000/- on 19.07.2005 and Rs.11,00,000/- on 01.12.2005 out of the sale consideration and thus, a total amount of Rs.18,00,000/was received by him from the respondent/plaintiff. Thereafter, on 05.07.2006, when the plaintiff demanded to execute the sale deed after receiving the balance sale consideration, the appellant/defendant, for one reason or other, delayed the matter and he endorsed in the agreement that due to some technical problems, he could not execute the sale deed and extended the period of agreement till 05.11.2006. Thereafter also, the appellant/defendant delayed the matter for no reason and at last, he agreed to execute the sale deed on 27.10.2006 RFA No. 864/2015 -3- after receiving the balance sale consideration. But he was not prepared to receive the balance sale consideration or to execute the sale deed. When the Mediators intervened, the appellant/defendant told that he has some financial liabilities with respect to the plaint schedule property and he will execute the sale deed on 03.11.2006 after clearing the liability. Again, the appellant/defendant backed out and accordingly, the plaintiff was constrained to issue a lawyer notice on 04.11.2006 calling upon the appellant/defendant to execute the sale deed after receiving the balance sale consideration on 06.11.2006. With the intervention of the Mediators, the appellant/defendant again agreed to execute the sale deed on 04.11.2006. According to the respondent/plaintiff, he was always ready and willing to perform his part of the contract and to get the sale deed executed at his expense. But the appellant/defendant has not prepared the same. On 06.11.2006, even though the respondent/plaintiff was present in Punalur Sub Registrar's Office with balance sale consideration, the defendant did not turn up. Hence the suit was filed by the respondent/plaintiff. 3. The appellant/defendant filed a written statement contending that the suit is not maintainable either in law or on facts. He admitted that the plaint schedule property belonged to the defendant. But, he denied the execution of agreement for sale on 06.07.2005 between him and the respondent/plaintiff. According to him, he has not agreed RFA No. 864/2015 -4- to sell the same to the plaintiff or anybody else. He has also stated that he had a financial transaction with the father of the plaintiff named Johny. The said Johny was involved in money lending business and in the year 2005, the appellant borrowed Rs.2,00,000/- from Johny and as a security, he has given a signed blank paper of Rs.100 and two blank cheques leaves bearing Nos. 785404 and 785814 to Johny. Thereafter, the appellant/defendant continued to repay the loan and an amount of Rs.1,10,000/- towards interest and Rs.1,60,000/towards principal was repaid. Thereafter, there occurred a delay in paying the balance amount. The respondent/plaintiff told the appellant/defendant that a lawyer notice was issued without any reason and that he will not take any legal steps. So, the appellant did not care to send any reply to the lawyer notice. According to the appellant/defendant, the plaint schedule property is worth more than Rs.1,00,000,00/- and the intention of the respondent/plaintiff is to grab the property from him. The respondent/plaintiff has also filed a criminal case against the appellant. 4. The evidence in this case consists of the oral testimony of the respondent/plaintiff as PW1 and another witness as PW2. Exts. A1 to 10 were marked on the side of the respondent/plaintiff. The appellant/defendant was examined as DW1 and no documentary evidence was adduced on the side of the appellant/defendant. 5. The court below, as per judgment dated 04.02.2015 decreed RFA No. 864/2015 -5- the suit holding that the appellant/defendant failed to perform his part of contract though the respondent/plaintiff was ready and willing to perform his part of the contract and that it is a fit case for the court to exercise its discretion to grant a decree for specific performance of Ext.A1 agreement. Accordingly, the appellant was directed to execute a sale deed with respect to the plaint schedule property in favour of the respondent/plaintiff on his depositing the balance sale consideration as per Ext.P1 before court within 60 days from the date of judgment. 6. Sri. P. B. Krishnan, the learned counsel for the appellant, argued that the court below has not properly appreciated the evidence available in this case, and the court below ought to have found that the respondent/plaintiff instituted the suit with a fraudulent intention to cause wrongful harm to the appellant and that he never executed any agreement for sale as alleged by the respondent/plaintiff. The court below went wrong in taking an adverse inference against the appellant relying on the fact that the original of the title deeds were produced by the respondent/plaintiff himself. Accordingly, he prayed for setting aside the impugned judgment. 7. The suit was filed for a specific performance of the contract and after evaluating the entire evidence, the court below has granted a decree for specific performance by directing the respondent/plaintiff to deposit the balance sale consideration of Rs.27,25,000/- with stamp RFA No. 864/2015 -6- value and registration charges before the court below within 60 days from the date of decree and shall give notice of deposit to the defendant by registered post with A/D. Highly aggrieved by the judgement and decree of the court below, the appellant has approached this Court. 8. The appellant's counsel has vehemently argued before us by stating that the court below ought to have sent the disputed document for expert opinion to compare the disputed signatures along with the admitted signature of the appellant in the first page of Ext.A1. According to him, the suit property is 4 cents in Sy. No. 473/16A, 2 cents in Sy. No. 477/16B and 1 cent that has two shop rooms in a 3 storied building. The area of the room is 1700 sq. feet and includes half right over the stair case. The suit was filed on the strength of Ext.A1 dated 06.07.2005. In fact, it was seemed to have executed for a sale of suit property for Rs.45,25,000/-and the period was fixed for one year and Rs.5,00,000/- was paid as advance. There is a stipulation by the vendor to clear the encumbrance and measure the property. Ext.A1 was stated to be witnessed by PW2, Abdul Salam and Salim, the scribe. On the reverse side of Ext.A1 of the stamp paper, it was written that it was purchased by the appellant/defendant on 30.06.2005, and on 19.07.2005, the appellant/defendant received a further sum of Rs.2,00,000/-. On 21.12.2005, a further agreement was alleged to have executed by the appellant/defendant agreeing to RFA No. 864/2015 -7- comply with Ext.A1. Since dues are to be paid to the Bank, Rs.11,00,000/- was stated to be paid towards the balance sale consideration. On 05.07.2006, a second endorsement was alleged to be made on the reverse page 1 of Ext.A1. The appellant/defendant was stated to be pointing out some difficulties and time is extended for performance till 05.11.2006. According to the appellant's counsel, the appellant has denied that he has executed an agreement for sale. He denied receipt of Rs.5,00,000/-. He also denied receipt of further amounts. He has also argued that he had financial transactions with Johny, father of the plaintiff. In connection with that transaction, a signed stamp paper was given and the same was used to forge the agreement. 9. On the other hand, Sri. P.K. Babu, the learned counsel appearing for the respondent had alleged that Ext.A1 agreement was duly executed by the appellant on 06.07.2005 and the period of agreement was extended upto 5.11.2006. He has also pointed out that all the conditions were accepted and documents were also signed by the appellant. The respondents produced Exts.A1 and A2 documents to establish that the appellant has received the amount from the appellant. According to the respondent, he accepted Rs.2,00,000/- and extended the agreement upto 5.11.2006. Ext.A2 document was produced to prove the acceptance of Rs.11,00,000/- on 21.12.2005. According to the respondent, the suit was filed in the RFA No. 864/2015 -8- year 2006 before the Sub Court, Kottarakkara and the same was decreed two times in favour of the respondent as _ex parte_ . Finally, the appellant came before this Court and _ex parte_ order was set aside and the matter was remanded to the court below and finally the case was adjudicated on 04.02.2005 and passed the judgment granting a decree for specific performance of the agreement. 10. According to the respondent's counsel, the respondent has succeeded in proving that Exts.A1 and A2 documents are duly executed by the appellant and there is no necessity to send the document for expert opinion. Further the court has got ample power under Section 73 of the Evidence Act to compare and accept the evidence. Therefore, the respondent's counsel prays for dismissal of the appeal. 11. On the side of the respondent/plaintiff, he himself and another witness was examined as PWs 1 and 2. On the side of the appellant/defendant, he was examined as DW1. Exts.A1 to A10 were produced by the respondent/plaintiff. No documents were marked on the side of the appellant. 12. The main contention of the appellant was that he had only borrowed Rs.1,10,000/- from the respondent's father and at the time of borrowing the amount, some documents were entrusted with the father of the plaintiff and by using that document, sale agreement was created. According to him, Exts.A1 and A2 have no relevance. The RFA No. 864/2015 -9- appellant's counsel has argued that apart from the admission of the signature in the first page of Ext.A1, all other signatures on Ext.A1 do not belong to the appellant and the learned Sub Judge has erroneously compared the signature in Ext.A1 along with the admitted signature in the vakalath, written statement and Ext.A8 partition deed. The court below satisfied that all the signatures are one and the same and are identical to Ext.A1 document. According to the appellant's counsel, the findings entered by the learned Sub Judge without sending the document for expert opinion, cannot be accepted. He has also argued that except the signature on the first page of Ext.A1, he has not subscribed signatures on the documents produced by the respondent. The learned counsel for the appellant submitted that the evidence adduced by PW2 is not sufficient enough to prove the execution or attestation and there is no other evidence in this regard. The only course available to the respondent/plaintiff is to prove the signature of the appellant/defendant at various places in Exts.A1 and A2. No such effort was made and no steps was taken by the respondent/plaintiff to get an expert to make a comparison of the signature. He has also argued that there is a specific denial of the signature in all pages of Ext.A1 except the first page. The comparison of signature which was done by the court below under Section 73 of the Evidence Act ought to have been avoided and the matter should have left to an expert. In this connection, he has placed reliance on the decisions reported in RFA No. 864/2015 -10- _**Ajit Savant Majagvai v. State of Karnataka**_ [(1997) 7 SCC 110] and _**Aravindakshan Nair v. Essen Bankers**_ [2007 (3) KLT 718]. 13. In _Aravindakshan_ , it is held that eventhough there is no bar for Court to compare admitted signatures/writings with disputed signatures/writings and come to its own conclusion, it would be more prudent to require opinion of expert. When the Court itself entertained some doubt after observing the discrepancies in the signatures, the court should not have ventured to form an opinion merely because Section 73 of the Evidence Act enables the Court to compare the signatures. As a matter of extreme caution and judicial sobriety, the Court should not normally take upon itself the task of comparing the disputed signature with the admitted signature or handwriting and in the event of the slightest doubt, the Court should leave the matter to the wisdom of an expert. 14. In _Ajit Savant Majagvai_ , it is held that the Court has power to compare the disputed signature with the admitted signature; but normally and particularly, in case of slightest doubt, the matter should be left to the wisdom of the expert. Section 73 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. RFA No. 864/2015 -11- 15. The appellant's counsel has strenuously argued that the respondent/plaintiff has not proved the execution of Exts.A1 and A2 and the endorsements on the reverse of Ext.A1 that the evidence of PW2, the alleged attestor, does not speak of attestation. He has also pointed out that even if it can be seen that the signature particularly in respect of endorsement on the reverse side of page 1 of Ext.A1 is not of the appellant. Further, he has argued that the comparison under Section 73 of the Evidence Act ought to have been avoided particularly since the entire decision in the case was based on the comparison made by the Court. The learned counsel for the respondent/plaintiff has argued that the learned Sub Judge has compared all the admitted signatures along with the disputed signatures and hold that all the signatures were subscribed by the appellant itself. He has also pointed out that the appellant has also given Ext.A8 title deeds of the property to the respondent as security for the due performance of the agreement. He has also pointed out that the original document is deposited with the Pathanapuram Rural Development Bank and after receipt of Rs.11,00,000/- from the respondent, the appellant received back the document and entrusted the same with the respondent and the same is substantiated as per Ext.A2 agreement. In paragraph 10 of the impugned judgment, it is observed that during the period of agreement, the original title deed of the property was entrusted with the respondent. RFA No. 864/2015 -12- 16. According to the learned counsel for the respondent/plaintiff, there is no necessity to remand the case to the court below since the entire evidence is against the appellant and the court below has taken the power to examine the admitted signature along with the disputed signature by invoking Section 73 of the Indian Evidence Act. So, there is no necessity for sending the document for expert opinion. Further as per Section 73 of the Evidence Act, the Court has got ample power to compare the signature along with the disputed signatures. The learned counsel for the respondent has placed reliance on the decision in _**State (Delhi Administration) v. Pali Ram**_ [AIR 1979 SC 14] in which it has held that the Court has power to direct the accused to give his specimen handwriting and the direction can be given to enable the same to be compared by handwriting expert. Section 73 of the Indian Evidence Act contemplates that for the satisfaction of the court, the admitted signature have to be compared with the other signature by the court itself and if the court is satisfied that the admitted signature and disputed signature is one and the same, then the requirements of Section 73 is complied. On the strength of Section 73 of Evidence Act, the learned counsel for the respondent has argued that the court can arrive at a conclusion that a particular document is executed by the same person. According to him, the court had compared the admitted signature on Ext.A1 with RFA No. 864/2015 -13- the disputed signatures on the basis of signatures on vakalath, written statement and other documents and came to the conclusion that the appellant had put the entire signature on Exts.A1 and A2 documents and the entire transaction has been proved. 17. Per contra, the learned counsel for the appellant has vehemently argued that when there is serious dispute regarding the signature, definitely the court cannot act under Section 73 of the Evidence Act and according to him, the admitted signature and the disputed signature ought to have sent for expert opinion and that will be the ultimate decision which help the court to pass a decree properly. 18. The learned counsel for the respondent has also submitted that this Court has, in a profusion of decisions, laid down the principle that the subjective satisfaction of the Court is sufficient to hold a view that the signature is one and the same and he has relied on the decision in _**Kumaran Nair v. Bhargavi**_ [2018 KHC 2003]. As per Sections 45 and 47 of the Evidence Act, the disputed signature can be proved by way of comparison by the court itself. It is also a mode of prove a document under the provisions of Sections 45 and 73 of the Evidence Act. Expert opinion is always not required, when the court itself is satisfied that the signature is one and the same and he has also relied on the decision in _**Abdul Sattar Shab v. Superintendent of Police**_ [1987 Crl.L.J 1670]. In _**Pali Ram** ,_ the Apex Court has, in RFA No. 864/2015 -14- paragraph 29, held that the subjective satisfaction under Section 73 is sufficient for comparison. Section 101 of the Evidence Act provides the burden of proof in a particular case. According to him, PWs 1 and 2 have given evidence to establish that Exts.A1 and A2 documents were duly executed by the appellant. Therefore, the burden of proof has been discharged by the respondent and then the burden is on the appellant/defendant to disprove the same. He has also argued that the appellant has not taken any steps to discharge his liability. Section 91 of the Evidence Act provides that the validity of contract reduced to the form of a document and that no evidence shall be given in proof of terms of such contract. Section 92 of the Evidence Act provides that no oral evidence is possible for the exclusion of terms of contract written between the parties. Since Exts.A1 and A2 are written evidence, there is no necessity to prove the same by giving oral evidence. In _**The State of Gujarat v. Vijaya Chandra Chhota Lal Pathi**_ AIR 1967 SC 778, the Apex Court in paragraph 10 has held that comparison of signature made by court is sufficient and expert opinion is not required. In _**Kumaran Nair**_ , it is held in paragraph 6 that the oral as well as the documentary evidence established the readiness and willingness of the plaintiff and specific performance has been ordered. According to the learned counsel, the appellant had taken undue advantage by way of retaining Rs.18,00,000/- from 2005 onwards for more than 14 years and the principle laid down in RFA No. 864/2015 -15- _**Laxman Tatyaba Kankate and another v. Taramati Harishchandra Dhatrak**_ [2010 (7) SCC 717] is applicable in this case. (para 22, 23 & 24). In _**Rameshwar Prasad (dead) by LRs v. Basanti Lal**_ [2008(5) SCC 676, the Apex Court has held that as per Section 16(c) of Specific Relief Act, the averment of readiness and willingness can be gathered from the plaint and suit can be decreed. In the instant case, there is a specific averment in the plaint regarding the readiness and willingness of the respondent/plaintiff. At the fag end, the learned counsel for the respondent has argued that the suit was decreed ex parte twice and the ex parte order was set aside by the court below. But, again the suit was decreed ex parte and then the appellant had produced medical certificate to establish that he was hospitalised on the date of trial. But it was dismissed by the court below. Thereafter, the appellant has again approached this Court and obtained an order of remand. The conduct of the appellant is only to drag the entire proceedings pending before court. According to the learned counsel for the respondent, whatever the court below has done by adopting Section 73 of the Indian Evidence Act, it is sufficient to establish that an agreement alleged to have executed by the appellant in favour of the respondent is genuine. 19. Per contra, the learned counsel for the appellant has argued that except the signature on the front page of Ext.A1, all other signatures were forged one and that the appellant has not subscribed RFA No. 864/2015 -16- his signature in any of the papers and the respondent has manipulated the entire signatures. So, it is highly required that the disputed signature shall be sent for expert opinion along with the admitted signature. 20. The learned counsel for the appellant has relied on the decisions in _**Velayudhan v. Velayudhan**_ (2001 (1) KLT 392), _**Ajit Savant Majagvai v. State of Karnataka**_ [(1997) 7 SCC 110 and _**Aravindakshan Nair v. Essen Bankers**_ [2007 (3) KLT 718] 21. In _**Velayudhan**_ ,it is held that mere putting of signature does not amount to admission of the execution of the document and in the case of denial of execution and consideration, eventhough the signature is admitted, the burden of proof is on the plaintiff. Thus, the signature is an acknowledgment that the person signing has agreed to the terms of the document. This can be achieved only if a person signs after the document is prepared and the terms are known to the person signing. ## 22. In _**Ramalakhan Singh v. Gog Singh**_ [AIR 1931 Patna 219], it is held that the onus cannot be discharged merely proving the identity of the thumb impression. It must be further proved that the thumb impression was given on the document after it had been written out and completed. The fact that the defendant's thumb impression appears on the paper is a strong piece of evidence in favour of the plaintiff and in the majority of the cases, very slight evidence would be RFA No. 864/2015 -17- necessary to prove that the thumb impression was given on the document after it had been written out and completed. **23.** In _**Ajit Savant Majagvai**_ , it is held that in the case of comparison of disputed signature with admitted signature, the court has power to compare the disputed signature with the admitted signature. But, normally and particularly, in case of slightest doubt, the matter should be left to the wisdom of expert. In that case, the Supreme Court itself compared the signatures, found no dissimilarity and convinced that they were of the accused. Section 73 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 under Section 47 or by the Court itself. 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 no power to compare the disputed signature with the admitted signature as this power is clearly available under Section 73 of the Act. _24_ _**.**_ In _**Aravindakshan Nair** ,_ it is held that eventhough there is no bar for court to compare the admitted signatures/writings with RFA No. 864/2015 -18- disputed signatures/writings and come to its own conclusion, it would be more prudent to require opinion of expert. 25. On the basis of the decisions cited above, the learned counsel for the appellant has stuck on the fact that the court has got ample power to compare the admitted signatures along with the disputed signature by invoking Section 73 of the Indian Evidence Act, 1865. But, if there is dissimilarity in the signature, the court has to apply its mind and send it for an expert to compare the admitted signature along with the disputed signature. He has also argued that the court is fully competent under Section 73 of the Evidence Act to make an order directing the person who disputes the signature and compare with the admitted signature available before the court and if the court finds it necessary in the interest of justice to send the specimen of disputed handwriting together with the disputed handwriting to an expert to have advantage of his opinion and assistance. 26. The learned counsel for the respondent has vehemently opposed the contentions of the appellant's counsel to send the disputed document for the expert opinion. According to him, when the plaintiff succeeds in proving Exts.A1 and A2 agreement and bill executed by the appellant, that will be sufficient enough to discharge his burden. In order to support his case, he has relied on the decisions in _**Rangammal v. Kuppuswami and another**_ [AIR 2011 SC 2344] RFA No. 864/2015 -19- ## and _**Fakhruddin v. The State of M.P**_ [AIR 1967 SC 1326]. 27. In _**Rangammal**_ , it is held that when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Thus, the Evidence Act has clearly laid down that the burden of proving fact always lies upon the person who asserts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of the other party. 28. In _**Fakhruddin**_ , it is held that the writing may be proved to be in the handwriting of a particular individual by the evidence of a person familiar with the handwriting of that individual or by the testimony of an Expert competent to the comparison of hand writings on a scientific basis. A third method is comparison by the Court with the writing made in the presence of the Court or admitted or proved to by the writing of the person. A third method is comparison by the court with the writing made in the presence of the Court or admitted or proved to by the writing of the person. Both under Sections 45 and 47 of the Evidence Act 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 RFA No. 864/2015 -20- upon and the court may accept the fact proved only when it has satisfied itself on its observation that it is safe to accept the opinion whether of the expert or other witness. 29. Now the main question to be considered is whether the expert opinion regarding the assessment of the disputed signature along with the admitted signature is highly required for establishing the case of the respondent. It is true that the suit is based on Ext.A1 document dated 06.07.2005. The alleged agreement for the sale of the property is for Rs.45,25,000/-. The period was fixed for one year. It is the case of the respondent that he has paid Rs.5,00,000/- in advance. PW2 is the Scribe, who has witnessed the execution of Ext.A1 document. In fact, Ext.A1 stamp paper was purchased by the appellant on 30.06.2005 and that on 19.07.2005, the appellant has received a further sum of Rs.2,00,000/-. As per Ext.A2, it is turned out that on 21.12.2005, another agreement was alleged to have executed by the appellant agreeing to comply with Ext.A1 document, in which it is stated that Rs.11,00,000/- was paid towards sale consideration. Second endorsement was made on the reverse side of page 1 of Ext.A1 on 05.07.2006 and the time was extended for performance till 05.11.2006. The appellant denied the execution of agreement for sale and the receipt of Rs.5,00,000/-. The main contention raised by him is that there was a financial transaction between the respondent and the father of the plaintiff namely Johny. RFA No. 864/2015 -21- In connection with that a signed stamp paper was given and they have purposefully created some forged documents and it was used against the appellant. In fact, the appellant has denied execution of Exts.A1 and A2 and also the endorsement on the reverse side of the said document. 30. Sri. P.B. Krishnan, the learned counsel for the appellant has submitted that the appellant had admitted the signature on the first page of Ext.A1, and that PW2, the alleged attesting witness does not speak of attestation of Exts.A1 and A2. He has placed reliance on the decision in _**Velayudhan v Velayudhan**_ [2001(1) KLT 392]. The burden to prove the execution of Exts.A1 and A2 is on the plaintiff, notwithstanding the admission of signature on the front page of Ext.A1. He has strenuously argued that the evidence of PW2 is not sufficient to prove the execution or attestation, that there is no other evidence in this regard, and that the only course available to the respondent is to prove the signature of the appellant at various places in Exts.A1 and A2. He has not taken any steps to get an expert to make a comparison of the signatures. He has also contended that the comparison of signatures by the Court under Section 73 of the Evidence Act ought to have been avoided and the matter should have left to an expert. In this connection, he placed reliance on **Bharathan v. Sudhakaran** [1996(1) KLT 466 (SC) HN], _**Ajith Savant Majagavi v. State of karnataka**_ [1997(7) SCC 110] and _**Aravindakshan Nair**_ RFA No. 864/2015 -22- _**v. Essen Bakers**_ [2007(3) KLT 718 para 7]. Placing reliance on _**Rafeeq v Abdul Bari**_ [2018(2) KLT 651], he has argued that even if one endorsement of the alleged payment is not proved, the suit has to fail. For the aforesaid reasons, the appellant prays for allowing the appeal on the following grounds: 1. the execution of Exts.A1 and A2 and the endorsements on the reverse side of Ext.A1 are not proved. 2. The evidence of PW2, the alleged attestor, does not speak of attestation. 3. The burden of respondent/plaintiff to prove execution is not discharged. 4. To the naked eye, it is evident that the signatures particularly in respect of the endorsement on the reverse side of page 1 of Ext.A1 is not of the appellant. 5. The comparison under Section 73 of the Evidence Act ought to have been avoided as the entire decision in the case rests on this comparison made by the Court. The main attack on the part of the appellant's counsel is that the comparison made by the court below by invoking the provisions of Section 73 of the Indian Evidence Act is not correct and that the court below ought to have sent the same for comparison by handwriting expert. On the other hand, the respondent's contention is that there is no necessity to send the signatures for comparison by the handwriting RFA No. 864/2015 -23- expert and the court has got ample power to compare the signatures as per Section 73 of the Indian Evidence Act. Anyhow, the only dispute is with regard to the genuineness of the signatures and the endorsement made on Exts.A1 and A2 document. Since there is serious dispute regarding the signatures, we find that it is just and proper to compare the admitted signatures on the front page of Ext.A1 along with the disputed signatures and other admitted signature in the vakalath, written statement, deposition, partition deed etc. by a handwriting expert. In the result, we set aside the impugned judgment and the case is remanded to the court below for fresh consideration after sending the disputed signatures with the admitted signatures to a handwriting expert. The respondent shall take steps to send the signatures for expert opinion within one month from the date of receipt of a copy of this judgment. If the respondent fails to take steps as directed within one month, the appellant is at liberty to take steps for getting opinion of the handwriting expert. The report of the Handwriting Expert shall be filed within one month thereafter and the court below shall dispose of the matter within three months of receipt of the expert opinion. ## sd/ **- K. HARILAL, JUDGE.** sd/- **ANNIE JOHN, JUDGE.** _Rv_ RFA No. 864/2015 -24- ## **APPENDIX** ## PETITIONER'S ANNEXURES: ANNEXURE A2: TRUE COPY OF THE INTERIM ORDER DATED 01.09.2016 IN IA NO. 2088/2016 IN RFA NO. 864/2015. ANNEXURE A3: TRUE COPY OF THE PHOTOGRAPH SHOWING THE ROOM TO RENTED OUT SN FABRICS AND RUNNING THE BUSINESS. ANNEXURE A4: TRUE COPY OF THE PHOTOGRAPH WHICH WAS TAKEN ON 16.08.2016 SHOWING THE NATURE OF CLOSING OF THE ROOM. ## RESPONDENTS' EXHIBITS: NIL /True Copy/ PS to Judge. rv