# Chandrawati v. Faisal Khan & Ors

- **Citation:** Second Appeal No. 460 of 1996
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-04
- **Case number:** Second Appeal No. 460 of 1996
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandrawati-v-faisal-khan-ors-46339
- **Pages:** 12

## Headnote

A. Civil Law- Indian Succession Act, 1925 -
Section 213 (1) and (2) - Will - Need of
probate to claim under it - Exception in favour
of Muslim and Christian - Relevance - SubSection (2) is a proviso to sub-Section (1) and
clearly excepts wills made by Mohmandans
and Indian Christians from the teeth of the
mandatory
requirement
about
obtaining
probate of a will by a legatee, before he claims
under it - Even if for a moment it were to be
considered that there was some doubt about
the constitutionality of this provision on
ground that it excepts members of two
particular religious communities, there is no
basis to infer that kind of a discrimination -
This is so because the view of the law
regarding the requirement of a compulsory
probate, as interpreted by the Supreme Court
and this Court, would show that there is no
requirement, even for a Hindu, Buddhist, Sikh
or Jain, or for that matter, anyone to obtain
probate of a will in Uttar Pradesh. (Para 15)
B.Evidence Law- Indian Evidence Act, 1872 -
Section 73 - Comparison of the signature - Court's
power - None of the parties produced any expert in
support of their plea - The Court was competent to
go into the question by doing a comparison going by
the clear legislative edict to that effect, carried in
Section 73. (Para 21 and 24)
Appeal dismissed (E-1)
Cases relied on :-

## Text

_Characters 0–39,985 of 41,134. This is a partial read: ask again with offset=39985 for what follows._

1424 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 107 C.P.C. the appellate court has
got jurisdiction to exercise all such powers
which is vested in the Courts of original
jurisdiction. Virtually, the appeal is in
continuation of suit.

32. In view of the aforesaid
discussion this court is of the considered
opinion that the suit could not have been
decided without considering, appreciating
and recording any finding on the basis of
evidence adduced before it merely on the
ground of delay in lodging the FIR.
Accordingly, the substantial question of
law nos.5 and (a) are decided in favour of
the appellant / plaintiff and against the
respondent / defendants. Therefore the
judgment and decree passed in Regular Suit
and the Civil Appeal are not tenable in the
eyes of law and liable to be set-aside with
direction to decide the Regular Suit No.64
of 1999 (Sahab Deen Vs. Keshav Prasad
and Others) afresh after considering the
evidence adduced before it in accordance
with law.

33. So far as the application for
impleadment of the appellant / plaintiff is
concerned, the provisions of Section 52 of
the Transfer of Property Act would be
applicable on the subsequent sale deeds.
However and since the second appeal is
being decided considering the substantial
question of laws and being remanded for
fresh disposal, the application stands
disposed of with liberty to the appellant /
plaintiff
to
implead
the
subsequent
purchasers before the trial court, if so
advised.

34. The Hon'ble Apex Court in the
case of Arjan Singh Vs. Punit Ahluwalia
and Others; (2008) 8 SCC 348 has held
that
execution
of
sale
deed
during
pendency of the suit would be hit by the
doctrine of lis pendens as adumbrated
under Section 52 of the Transfer of
Property Act and would not come in the
Court's way in passing a decree in favour of
the appellant. Its validity or otherwise
would not be necessary to be considered as
the appellant is not bound thereby.

35. The second appeal is, accordingly,
allowed. The judgment and decree dated
27.01.2017 passed in Regular Civil Appeal
No.27 of 2014 by the learned Additional
District Judge / Special Judge (A.P.) CBI,
Lucknow and judgment and decree dated
18.10.2002 passed in Regular Suit No.64 of
1999 (Sahab Deen Vs. Keshav Prasad and
Others) passed by learned Civil Judge,
(J.D.) Hawali, Lucknow are hereby setaside. The matter is remanded to the trial
court to decide the Regular Suit No.64 of
1999 (Sahab Deen Vs. Keshav Prasad and
Others) afresh expeditiously and preferably
within six months from the date of receipt
of record. No orders as to costs.

36. The lower court record, alongwith
a copy of this order, shall be remitted to the
trial Court within two weeks from today.
----------

(2020)03-05ILR A1424
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.02.2020

BEFORE

THE HON'BLE J.J. MUNIR, J.

Second Appeal No. 460 of 1996

Chandrawati ...Appellant
Versus
Faisal Khan & Ors. ...Respondents

Counsel for the Appellant:
Sri T. Varma, No Name, Sri J.S. Pandey
3-5 All. Chandrawati Vs. Faisal Khan & Ors.
1425
Counsel for the Respondents:
Sri M. Islam, Sri Syed Ahmed Faizan

A. Civil Law- Indian Succession Act, 1925 -
Section 213 (1) and (2) - Will - Need of
probate to claim under it - Exception in favour
of Muslim and Christian - Relevance - SubSection (2) is a proviso to sub-Section (1) and
clearly excepts wills made by Mohmandans
and Indian Christians from the teeth of the
mandatory
requirement
about
obtaining
probate of a will by a legatee, before he claims
under it - Even if for a moment it were to be
considered that there was some doubt about
the constitutionality of this provision on
ground that it excepts members of two
particular religious communities, there is no
basis to infer that kind of a discrimination -
This is so because the view of the law
regarding the requirement of a compulsory
probate, as interpreted by the Supreme Court
and this Court, would show that there is no
requirement, even for a Hindu, Buddhist, Sikh
or Jain, or for that matter, anyone to obtain
probate of a will in Uttar Pradesh. (Para 15)
B.Evidence Law- Indian Evidence Act, 1872 -
Section 73 - Comparison of the signature - Court's
power - None of the parties produced any expert in
support of their plea - The Court was competent to
go into the question by doing a comparison going by
the clear legislative edict to that effect, carried in
Section 73. (Para 21 and 24)
Appeal dismissed (E-1)
Cases relied on :-
1. Dr. Sunil Kumar vs. Chaitanya Prakash & ors.,
2014 SCC OnLine All 15433: 2014 (10) ADJ 642
2. Clarence Pais Vs. U.O.I., 2001 (4) SCC 325
3. Shyam Sundar Chowkhani @ Chandan & ors. Vs..
Kajalkanti Biswas, AIR 1999 Gau 101
4. Murari Lal Vs. St. of M.P., (1980) 1 SCC 704 : AIR
1980 SC 531
5. Satya Prakash Pandey & ors. Vs. Dev Brat Mishra,
2011 (3) ADJ : 2011 SCC OnLine All 202

(Delivered by Hon'ble J.J. Munir, J.)

1. This is a defendant's second appeal.
The plaintiff-respondents (for short, ''the
plaintiffs') instituted O.S. No. 63 of 1983 in
the Court of Munsif, Amroha, District
Moradabad against the four defendants,
seeking relief of permanent prohibitory
injunction, to the effect that respondent
Nos. 2 and 3 be restrained perpetually from
delivering possession of the suit property to
defendant Nos. 1 and 4 and to maintain
status quo on the spot. The Trial Court,
vide judgment and decree dated 22.02.1992
decreed the suit restraining defendant Nos.
1 and 4 from interfering with the plaintiffs'
possession
over
the
suit
property.
Defendant Nos. 2 and 3 were declared
tenants in the said property and were
ordered by the decree to attorn the plaintiffs
as their landlords. A declaration was also
made in those terms. The sole appellant,
Smt. Chandrawati, who was defendant no.
1 to the suit, is hereinafter referred to as
''the defendant'. The plaintiff-respondents,
who
are
arrayed
here
as
plaintiffrespondents
first
set,
are
hereinafter
referred to as ''the plaintiffs'. Defendant
nos. 2 and 3, who are arrayed as respondent
Nos. 5 and 6 in the second set, shall be
hereinafter referred to as ''defendant nos. 2
and 3'. The defendant No. 4 to the suit
Usman Ali, Advocate here arrayed as
respondent No. 7 in the second set, shall be
hereinafter referred to as ''defendant No. 4'.

2. Aggrieved by the aforesaid decree,
the defendant carried an appeal to the
District Judge, Moradabad where it was
registered as Civil Appeal No. 137 of 1992.
Upon
assignment,
it
came
up
for
determination before the Court of the 4th
Additional District Judge, Moradabad, who
by the impugned judgment and decree
dated 12th March, 1996, dismissed the
defendant's appeal with costs and affirmed
the Trial Court.
1426 INDIAN LAW REPORTS ALLAHABAD SERIES

3. Aggrieved, this appeal from the
appellate decree has been filed.

4. This appeal was admitted to
hearing
on
the
following
substantial
questions of law:

1.
whether
the
will
dated
26.10.1979 alleged to have been executed
by Abdul Mueed in favour of Farhan Khan
was proved in accordance with law. If not
its effect?

2. Whether will dated 26.10.1979
can be made the basis of the suit without
getting probate for the same?

3. Whether the courts below
could act as an Expert and tally the
signature of the plaintiff-respondents by
themselves?

4. Whether the courts below have
gone beyond the relief sought and made
declaration which would not have been
pleaded or proved by the plaintiffrespondents?

5. The hearing in this appeal
commenced on 29.01.2020 when Sri J.S.
Pandey, Advocate holding brief of Sri
Tarun Varma, learned counsel for the
appellant addressed the Court on behalf of
the appellant. No one appeared on behalf of
the respondents. Accordingly, this appeal
has proceeded ex parte. It was heard on
29.01.2020, 21.01.2020 and today. At the
hearing, Sri J.S. Pandey has confined his
submissions to two substantial questions of
law that is to say questions Nos. 2 and 3
extracted supra. Now, the suit giving rise to
this appeal appears to have been instituted
in the Court of Munsif, Amroha for a
permanent prohibitory injunction in terms
indicated hereinbefore.

6. The plaintiffs came with a case that
one Abdul Mueed Khan was owner in
possession of the suit property detailed at
the foot of the plaint. Abdul Mueed Khan
died issueless. It was the plaintiff's case
that Abdul Mueed Khan, during his
lifetime, had executed a will bequeathing
the suit property in favour of one Farhat
Khan on 26.10.1979. Upon death of the
testator, succession opened in favour of
Farhat Khan in terms of the bequests and
Farhat Khan thus became owner and
entered possession of the suit property.
After the decease of Farhat Khan, the
plaintiffs became owners of the suit
property by interstate succession, being his
heirs under the law. Defendant Nos. 2 and
3 were claimed to be in actual physical
possession of the suit property as tenants of
the testator, Abdul Mueed Khan, and after
his death, they were said to have become
the tenants of Farhat Khan. After Farhat
Khan, the tenants held on behalf of the
plaintiffs' by operation of law. The cause of
action in the suit arose as the plaintiffs
claimed that the defendant, who had got a
sale deed of the suit property executed in
her favour by defendant No. 4 on
21.09.1982, in collusion with defendant
Nos. 2 and 3, the plaintiffs' tenants, was
proceeding to take possession of the said
property along with defendant No. 4. The
plaintiffs sued to prevent that eventuality
and to protect their possession.

7. The defendant filed a written
statement traversing the plaint allegations
and asserted that the plaintiffs had no cause
of action to sue. The defendant asserted
that the will dated 26.10.1979 from Abdul
Mueed Khan that was propounded by the
plaintiffs as a bequest in favour of Farhat
Khan, was a forged and bogus document
that was got up in collusion with defendant
No. 2. It was asserted that defendant No. 4
was owner of the suit property after Mueed
Khan, being his nephew as Mueed Khan
3-5 All. Chandrawati Vs. Faisal Khan & Ors.
1427
died issueless. It was also pleaded on
behalf of the defendant that the defendant
No. 2 has been in occupation as a tenant at
the rate of Rs. 150/- per year. There was
some dispute about the payment of rent
between defendant no. 2 and the original
owner of the property, Mueed Khan that
had led defendant no. 2 to deposit rent in
Court.

8. After exchange of pleadings,
issues were struck between parties in
Hindi that were rendered into English
by the Lower Appellate Court. The
issues, six in number, and in the manner
rendered into English by the lower
Court, read as follows:

1. Whether Abdul Mueed Khan was the
owner and in possession of the property
in dispute?

2. Whether Abdul Mueed Khan had
executed a will on 26.10.79 of the
disputed property in favour of Farhat
Khan?

3. Whether Usman Khan was the owner
of the property in dispute?

4. Whether the sale deed dated 21.09.82
executed by Usman Khan in favour of
defendant no. 1 is illegtal and void?

5. Whether the suit has wrongly been
valued and the court fees paid is
insufficient?

6. To what relief, if any, are the
plaintiffs entitled?

9. Learned counsel for the appellant
does not dispute the correctness of the
English rendition of the issues done by
the Lower Appellate Court. The parties
led evidence, both documentary and
oral,
where
four
witnesses
were
examined on behalf of the plaintiffs and
one on behalf of the defendant.

10. A reading of the judgment of
the Lower Appellate Court shows that
the will was proved by examining both
marginal
witnesses.
The
will
was
accepted to be proved on the evidence
of PW-3, Buniyad Ali, who successfully
established, in the opinion of the Courts
below, for a fact that he had seen the
testator's sign the will and himself had
signed in the presence of the testator,
who had seen him sign. The Lower
Appellate Court concurring with the
Trial Court appears to have found the
will to be a plausible disposition by the
testator, who has been held to be a
literate person. He has also been found
to be one who could understand the
consequences of his actions and his best
interest. The Lower Appellate Court on
a reasonable view of the evidence, has
excluded practice of any fraud, cheating
or deception, to secure execution of the
will on a plain paper, that was
subsequently got signed.

11. Heard Sri J.S. Pandey, Advocate
holding brief of Sri Tarun Varma, learned
counsel for the appellant. No one appears
on behalf of the respondents.

12. There cannot be much scope for
this Court to interfere with consistent
findings of fact recorded by the two Courts
below about proof of the will in favour of
Farhat Ali by Abdul Mueed Khan, the
testator. Learned counsel for the appellant
also does not canvass a case that those
findings are wrong or can be re-evaluated
in the present second appeal.
1428 INDIAN LAW REPORTS ALLAHABAD SERIES

13. Learned Counsel for the appellant
Sri Pandey, however, has emphatically
submitted that the will dated 26.10.1979
propounded by Abdul Mueed Khan in
favour of Farhat Ali Khan could not have
been accepted by the Courts below,
whatever they might have found for a fact
regarding proof of the will, the logical
nature of its disposition, exclusion of a case
of fraud and deceit etc. He submits that the
will could not have been acted upon or
looked into by the Courts below because of
the provisions of Section 213 of the Indian
Succession Act, 1925 (for short, the
Succession Act') . It is urged that Section
213 (supra) prohibit any Court of justice
from accepting the right of any person as
an executor or a legatee under a will, unless
a Court of competent jurisdiction in India
has granted probate of the will, under
which the legatee claims. It is submitted
here for a fact that no probate of the will
dated 26.10.1979 was ever granted by a
Court
of
competent
jurisdiction,
as
mandated by Section 213 of the Succession
Act.

14. This Court has considered the
submission of the learned counsel for the
appellant with reference to the substantial
question of law No. 2, formulated in this
appeal. For one, the issue that an
unprobated will cannot be acted upon on
behalf of a person who claims a right under
it as a legatee, was not raised either before
the Trial Court or before the Lower
Appellate Court. It has been raised before
this Court for the first time. As such, there
is no factual foundation before this Court to
act upon the plea, to the extent, that for a
fact, it is not known whether probate was
indeed secured or not. Assuming that a
probate of the will in question was not
secured, going by the practice in the State,
the question is being determined on the
basis of a premise that there was no probate
of the will in question. The provisions of
Section 213 of the Succession Act are
being quoted in extenso:

"213. Right as executor or
legatee when established.--

(1) No right as executor or
legatee can be established in any Court of
Justice, unless a Court of competent
jurisdiction in 1[India] has granted probate
of the Will under which the right is
claimed,
or
has
granted
letters
of
administration with the Will or with a copy
of an authenticated copy of the Will
annexed.

[(2) This section shall not apply
in
the
case
of
Wills
made
by
Muhammadans [or Indian Christians], or
and shall only apply--

(i) in the case of Will made by
any Hindu, Buddhist, Sikh or Jaina where
such Wills are of classes specified in
clauses (a) and (b) of section 57; and

(ii) in the case of Wills made by
any Parsi dying, after the commencement
of the Indian Succession (Amendment)
Act, 1962, where such Wills are made
within the local limits of the ordinary civil
jurisdiction of the High Courts at Calcutta,
Madras and Bombay, and where such Wills
are made outside those limits, in so far as
they relate to immoveable property situated
within those limits.

15. A bare reading of the provisions
of sub-Section (2) of Section 213 shows
that sub-Section (2) is a proviso to subSection (1) and clearly excepts wills made
by Mohmandans and Indian Christians
from
the
teeth
of
the
mandatory
requirement about obtaining probate of a
will by a legatee, before he claims under it.
Even if for a moment it were to be
considered that there was some doubt about
3-5 All. Chandrawati Vs. Faisal Khan & Ors.
1429
the constitutionality of this provision on
ground that it excepts members of two
particular religious communities from the
operation of the rule in sub-Section (1) of
Section 213, there is no basis to infer that
kind of a discrimination, also. This is so
because the view of the law regarding the
requirement of a compulsory probate, as
interpreted by their Lordships of the
Supreme Court and this Court, would show
that there is no requirement, even for a
Hindu, Buddhist, Sikh or Jain, or for that
matter, anyone to obtain probate of a will in
Uttar Pradesh. In this regard, the decision
of this Court in Dr. Sunil Kumar vs.
Chaitanya Prakash and others, 2014
SCC OnLine All 15433: 2014 (10) ADJ
642 may be referred to with profit.
Paragraphs 8, 9 and 10 of the report in Dr.
Sunil Kumar (supra) is relevant, where it
has been held:

8. From the perusal of the
aforementioned provisions, it is quite
evident that a probate will not be required
to be obtained by a Hindu in respect of a
Will made regarding the immovable
properties situate in Uttar Pradesh. The
same view taken by this Court in the Case
of Naubat Ram v. Gayatri Devi [1968 ALJ
69.] . Here in the present case, the parties
are Hindu and the property situate in the
State of Uttar Pradesh, as such, section 57
read with section 213 of the Indian
Succession Act is not at all application in
the present case.

9. At this juncture, it is useful to
refer the observations made by the Apex
Court in the case of Clarence Pais v. Union
of India [2001 (43) ALR 249 (SC).] , which
reads as follows:

"The scope of section 213(1) of
the Act is that it prohibits recognition of
rights as an executor or legatee under a
Will without production of a probate and
sets down a rule of evidence and forms
really a part of procedural requirement of
the law of forum. Section 213(2) of the Act
indicates that its applicability is limited to
cases of persons mentioned therein. Certain
aspects will have to be borne in mind to
understand the exact scope of this section.
The bar that is imposed by this section is
only in respect of the establishment of the
right as an executor or legatee and not in
respect of the establishment of the right in
any other capacity. The section does not
prohibit the will being looked into for
purpose's other than those mentioned in the
section. The bar to the establishment of the
right is only for its establishment in a Court
of justice and not its being referred to in
other proceedings before administrative or
other Tribunal. The section is a bar to
everyone claiming under a Will, whether as
plaintiff or defendant, if no probate or
Letters of Administration is granted. The
effect of section 213(2) of the Act is that
the requirement of probate or other
representation mentioned in sub-section (1)
for the purpose of establishing the right as
an executor or legatee in a Court is made
inapplicable in case of a will made by
Muhammadans and in the case Of wills
coming under section 57(c) of the Act.
Section 57(c) of the Act applies to all Wills
and codicils made by any Hindu, Buddhist,
Sikh or Jain, on or after the first day of
January, 1927 which does not relate to
immovable property situate within the
territory formerly subject to the LieutenantGovernor of Bengal or within the local
limits of the ordinary civil jurisdiction of
the High Courts of Judicature at Madras
and Bombay, or in respect of property
within those territories. No probate is
necessary in the case of Wills by
Muhammadans.
Now
by
the
Indian
Succession [Amendment] Act, 1962, the
section has been made applicable to Wills
1430 INDIAN LAW REPORTS ALLAHABAD SERIES
made
by
Parsi
dying
after
the
commencement of the 1962 Act. A
combined reading of sections 213 and 57 of
the Act would show that where the parties
to the Will are Hindus or the properties in
dispute are not in territories falling under
section 57(a) and (b), sub-section (2) of
section 213 of the Act applies and subsection (1) has no application. As a
consequence, a probate will not be required
to be obtained by a Hindu in respect of a
will made outside those territories or
regarding the immovable properties situate
outside those territories. The result is that
the contention put forth on behalf of the
Petitioners that section 213(1) of the Act is
applicable only to Christians and not to any
other religion is not correct."

10. Learned Counsel for the
revisionist has relied upon the decision of
the Apex Court in the case of T. Venkata
Narayana v. Smt. Venkata Sub-bamma
(dead) [(1995) 5 SCC 691 : 1996 (28)
A.I.R. 70 (SC).] . The authority cited by the
learned Counsel for the revisionist is not at
all applicable in the present case. In the
said case the Apex Court has not
considered the implication of section 57
read with section 213 of the Indian
Succession Act. However, the Apex Court
in his subsequent decision in the case of
Clarence Pais v. Union of India (supra) has
made it clear that a probate will not be
required to be obtained by a Hindu in
respect of a Will made with respect to the
immovable properties situate in Uttar
Pradesh.

16. The substantial questions of law
raised is squarely answered against the
appellant by the decision of this Court in
Dr. Sunil Kumar (supra) following the
decision of their Lordships of the Supreme
Court in Clarence Pais v. Union of India,
2001 (4) SCC 325, the relevant part of
which has been quoted in Dr. Sunil
Kumar (supra). The position that therefore
emerges is that neither a Hindu or a
Mohmandan and practically all classes of
persons who have been mentioned in
Section 213 of the Succession Act, read
with Section 57, whomsoever are required
to compulsorily obtain a probate of a will
under which they claim as legatee, or to be
the executor thereof, in respect of a bequest
made for immovable properties situate in
Uttar Pradesh. Substantial question of law
No. 2 pressed on behalf of the appellant is,
accordingly, answered in the negative.

17. The other substantial question of law
that has been pressed by Sri Pandey on behalf
of the appellants is substantial question of law
No. 3, hereinabove extracted. Learned counsel
for the appellant submits that the will cannot be
regarded as proved going by the findings
recorded by the Courts below, as those Courts
being Courts of fact, were under an obligation
to call an expert to determine the genuineness
of the signatures of the testator on the will, once
the bequest was disputed by the defendant. The
submission of Sri Pandey, in particular, is that
there was a specific case pleaded in paragraph 3
of the written statement that the will
propounded by the plaintiffs dated 26.10.1979,
was absolutely a forged and bogus document.
He submits that in the face of such a plea, it was
imperative for the Courts below to have called
in aid an expert to determine the genuineness of
the testator's signatures. He has criticized the
approach of the Trial Court, in going about
doing a comparison of the admitted and the
disputed signatures of the testator, by
comparing the two specimens itself and holding
that the signatures of the testator on the bequest
were genuine.

18. This Court has considered the
aforesaid submission keenly. It is true for a
fact that the Trial Court has gone about the
3-5 All. Chandrawati Vs. Faisal Khan & Ors.
1431
exercise of doing a comparison of the
admitted and the disputed signatures of the
testator on the will, comparing them with
certain admitted signatures, the specimen
of which were available on certain
documents, which are marked as Exhibits 5
to 7. The Trial Court on doing a
comparison of the admitted and the
disputed signatures has recorded a finding
that the two signatures are attributable to
one and the same person. In this regard, the
Trial Court has recorded the following
finding (in Hindi vernacular):

bl vfHkys[k ij vCnqy eqbZn [kka ds
ys[k esa fy[ks x;s dqN fufoZokni= izLrqr fd;s
x;sA oknh ds }kjk izLrqr i=] izn'kZ&5 ls 7 gSA
bu i=ksa ij vcnqy eqbZn [kka dk ys[k rFkk
gLrk{kj izfrokfnuh la0 ds lk{kh Mh0 MCyw0 2
lqukmYykg [kka us Hkh Lohdkj fd;kA vcnqy eqbZn
[kka ds bu ij miyC/k gLrk{kj bPNki= ij
miyC/k gLrk{kjksa ls iw.kZ jis.k feyrs gSA blh
izdkj izfrokfnuh la0 ds }kjk izLrqr i= izn'kZ
d&2 ls d&5 ij miyC/k vcnqy eqbZn [kka ds
gLrk{kj bPNki= ij miyC/k gLrk{kjksa ls iw.kZ
jis.k esy [kkrsa gS

19. Now, whether the Trial Court
could do this by a comparison of the
admitted signatures with those disputed,
without the aid of an expert, is the moot
question. In this regard, the provisions of
Section 73 of the Indian Evidence Act are
very relevant. These are quoted infra:

73. Comparison of signature,
writing or seal with others admitted or
proved.--In order to ascertain whether a
signature, writing or seal is that of the
person by whom it purports to have been
written or made, any signature, writing, or
seal admitted or proved to the satisfaction
of the Court to have been written or made
by that person may be compared with the
one which is to be proved, although that
signature, writing, or seal has not been
produced or proved for any other purpose.
The Court may direct any person present in
Court to write any words or figures for the
purpose of enabling the Court to compare
the words or figures so written with any
words or figures alleged to have been
written by such person.

1[This Section applies also, with
any necessary modification, to finger
impressions.]

1.Ins. By Act 5 of 1899, sec. 3.

20. In support of his contention
learned counsel for the appellant has relied
upon a decision of the Gauhati High Court
in Shyam Sundar Chowkhani alias
Chandan
&
others
vs.
Kajalkanti
Biswas, AIR 1999 Gau 101, where it has
been held:

"14.
Since
the
science
of
identification
of
handwriting
by
comparison is not an infallable one,
prudence demands that before acting on
such opinion, the Court should be fully
satisfied about the authorship of the
admitted writing which is made the sole
basis for comparison and the Courts should
also be fully satisfied about the competence
and credibility of the handwriting Expert.
When there are conflicting opinions, it is
necessary to exercise extra care and caution
in
evaluating
their
opinions
before
accepting the same. In no case can the
Court base its finding solely on the opinion
of the Handwriting Expert. It however does
not mean that even if there exists numerous
shrieking similarities and mannerism which
tend down to identify the writer, the Court
will not act on the Expert's evidence. It all
depends on the character of the evidence of
the Expert and the facts and circumstances
of each case. The ordinary method of
proving handwriting are:--
1432 INDIAN LAW REPORTS ALLAHABAD SERIES

(i) By calling as a witness a
person who wrote the document or saw it
written or with qualified expert opinion as
to the hand writing by virtue of Section 47
of the Evidence Act.

(ii) By the admission of the
person against whom the document is
tendered.

(iii)
By
comparison
of
handwriting as provided in section 73 of
the Evidence Act. It should also be borne in
mind that only where other evidence is not
available and the handwriting has not been
proved by independent witness to be the
handwriting of a particular person that it is
necessary
to
have
recourse
to
the
provisions of section 73 of the Evidence
Act. The two paragraphs of section 73 are
not
mutually
exclusive.
They
are
complementary to each other, section 73 is,
therefore, to be read as a whole in the light
of section 45 of the Evidence Act. (See
(1979) 2 SCC 158 : AIR 1979 SC 14).
Section 73 read as a whole in the light of
section 45 and section 47 of the Evidence
Act makes it clear that the Court does not
exceed its power under section 73 of the
Evidence Act if in the interest of justice, it
directs a person appearing before it whether
it is Civil or Criminal Court to give a
sample writing to enable the same to be
compared by Hand Writing Expert because
even in adopting such course the purpose is
to enable the Court to compare the disputed
writing with the admitted writing and to
reach its own conclusion with assistance of
the Expert.

16. First let us take up the legality
of the finding arrived at by the Court
regarding genuineness of the signatures of
the plaintiffs in Exhibit K.A. In order to
decide it again we must go back to section
73 of the Evidence Act. Although Section
73 empowers the Court to compare the
disputed
writing
with
the
specimen/admitted writing shown to be
genuine, prudence demands that the Court
should be extremely slow in venturing an
opinion on the basis of comparison, more
so, when the quality of evidence in respect
of specimen/admitted writing, is not of high
standard (See (1992) 3 SCC 700 : AIR
1992 SC 2100). Of course that case before
the Apex Court was a criminal case. As
pointed out by Privy Council in 3 Indian
Appeals 154 - A comparison of a hand
writing by the Court with the other
document not challenged as fabricated
upon its own initiative and without
guidance of an expert and even that it is at
all times hazardous and recognizably
inconclusive. It is unsafe to arrive at a
decision in a case where there is a conflict
of testimony between the parties as to the
general character of a signature on the
correct determination of the genuineness of
the signature by mere comparison with the
admitted signatures specially without the
and
in
evidence
of
microscopic
enlargement or any expert's evidence (See
AIR 1928 Privy Council 277). further a
signature made for the occasion post-litemmotam merely for the use at the trial ought
not to be taken as a standard, as it is likely
to be simulated. It may however, be
compared with any genuine writing for all,
that is, worth. The criteria of comparison of
signature can not be a safe guide and surely
can not be the sole guide. But that is, what
has been done by the learned judge in this
particular case. The learned Judge did not
discus any other evidence on this point and
based solely on his own comparison, he
came to the finding that the signatures in
Exhibit KA are not the signatures of the
plaintiffs......................"

21. In the present case none of the
parties produced any expert in support of
their plea, particularly the defendant, who
3-5 All. Chandrawati Vs. Faisal Khan & Ors.
1433
urged that the bequest was a forged
document and the signatures thereon were
not those of the testator. It was her burden
to have examined an expert, and may be
thereafter, the plaintiff would also have to
examine an expert. To whatever end the
experts would have opined, the Court
would then avail the benefit of two expert
reports before it while forming its opinion
whether the signatures on the will were
genuine or not. In the absence of any side,
particularly the defendant examining an
expert, it was always open to the Court to
have done a comparison of its own,
between the disputed signatures and those
admitted, and recorded its own conclusions
as it has done.

22. The scope, authority and duty of
the Court's power to do a comparison of the
disputed signature/ handwriting with that
admitted fell for consideration of the
Supreme Court in Murari Lal vs. State of
Madhya Pradesh, (1980) 1 SCC 704,
where it was held:

"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 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 [
Vide Correction slip No. F. 3/79 (Ed.J) dt.
21-8-80] 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. We may mention
that Shashi Kumar v.Subodh Kumar [AIR
1967 SC 1326 : 1967 Cri LJ 1197] and
Fakhruddin v. State of M.P. [AIR 1967 SC
1326 : 1967 Cri LJ 1197] were cases where
the Court itself compared the writings."

23. In this regard, a decision of this
Court in Satya Prakash Pandey and
others vs. Dev Brat Mishra, 2011 (3)
ADJ : 2011 SCC OnLine All 202 may be
referred to. In Satya Prakash Pandey and
others (supra) it has been held in
paragraph 16, 17 and 18 of the report:

"16. The second reason given in
the impugned order for entertaining and
deciding a review application is that the
view expressed by the earlier Presiding
Officer
on
the
genuineness
of
the
signatures appearing on the compromise 64
Ka was erroneous. Admittedly in the
present case neither of the parties have
applied or furnished any report of an expert
on the disputed signatures. The court in the
absence of any such report has the
jurisdiction to peruse the signatures and
come to a prima facie finding with respect
to
its
genuineness
on
comparison.
Moreover the opinion of the expert is
merely an opinion which generally requires
corroboration.
The
court
can
decide
whether
the
expert
opinion
requires
corroboration at all. The expert report can
1434 INDIAN LAW REPORTS ALLAHABAD SERIES
be accepted only if the court is satisfied by
comparing the admitted signature with the
disputed signature and then come to its own
conclusion. Hence when an expert report is
available on record of a case it is still the
conclusion of the court that either accepts it
or rejects it. The court in any event has to
take the final decision. Therefore, in a case
where there is no expert report on record
the court has to even then give its
conclusion on the dispute and that can be
done by the court upon bare perusal of the
two signatures.

17. The Supreme Court in Murari
Lal (supra) held that by comparing the
writing itself the court could not assume the
rule (sic) in of an expert. Section 73 of the
Evidence Act enables the court to compare
the disputed writing with admitted or
proved writing to ascertain whether the
writing is of that person. The opinion of the
expert is an aid to the court, but where
there is no such report the court will have
to seek guidance from the authoritative text
book and the court's own experience and
knowledge. It was held that duty is to be
discharged by the court with or without
expert and with or without other evidence.

18. Admittedly in the present case
neither of the parties have produced or
applied for report of a handwriting and
fingerprint expert. The Court never refused
to admit an expert opinion. In such
circumstances the court was within its
jurisdiction
to
form
an
opinion
by
comparison of the disputed and admitted
signatures. That is what has been done by
the court in the judgment under review.
The impugned order is an order passed on a
review application and such was not a
ground under Order XLVII Rule 1 Code of
Civil Procedure to hold that an error
apparent on the face of record has been
committed in comparison of the signature
by the earlier Presiding Officer, and hence
it can be reviewed."

24. The present case is clearly one
where the Court did not refuse to admit in
evidence any expert opinion produced by
the parties. But, shorn on any expert
assistance, the Court was competent to go
into the question by doing a comparison
going by the clear legislative edict to that
effect, carried in Section 73 of the Indian
Evidence Act. This view has the approval
of their Lordships of the Supreme Court in
Murari Lal vs. State of M.P., AIR 1980
SC 531, which has been referred to in
Satya
Prakash Pandey and
others
(supra). It is not a case where the Court
took upon itself the role of an expert, where
it had guidance. It is a case where the Court
discharged its duty in accordance with
Section 73 where there was no expert
evidence led by parties to its aid, in
deciding
upon
the
dispute
regarding
genuineness of the signatures, that was
raised by the defendants.

25. In this view of the matter,
substantial question No. 3 is answered in the
manner that in the absence of an expert report
being filed by either party, it is not only open
to a Court but its duty to do a comparison of
the admitted and disputed signatures and
record its own findings. In view of the
answers to substantial questions of law nos. 2
and 3, which alone were pressed, this court
does not find any merit in this appeal.

26. This appeal fails and is dismissed.
However, costs will go easy looking to the
fact that the respondents have not appeared at
the hearing.

27. Let a decree be drawn up,
accordingly.
----------
3-5 All. The Union of India & Anr. Vs. Sri Awadhesh Kumar Agarwal
1435
(2020)03-05ILR A1435
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.01.2020

BEFORE

THE HON'BLE AJAY BHANOT, J.

Second Appeal No. 540 of 1991

The Union of India & Anr. ...Appellants
Versus
Sri Awadhesh Kumar Agarwal
 ...Respondent

Counsel for the Appellants:
Sri S.N. Agarwal, Sri Devendra Tripathi

Counsel for the Respondent:
Sri Sri Dhan Prakash, Sri Rakesh Kumar
Garg

A. Civil Law-Indian Railways Act, 1890 -
Section 78-B - Compensation - Service of
Notice - Limitation of time - Object - Purpose
of the notice is to enable the Railway authorities
to make an expeditious and meticulous enquiry
into the nature and bonafides of the claim for
compensation - It would prevent stale claims
from being raised to the detriment to the
Railway authorities - A bonafide claim would
also encourage resolution of disputes without
recourse to frivolous litigation - There is a
strong public interest element involved in this
provision. (Para 22, 23 and 24)
B. Interpretation of Statute - Liberal
construction - Pedantic approach - Statutory
period of six month for service of notice - Held,
in view of the purpose of the the enactment, the
notice under Section 78B of the Indian Railways
Act, 1890, has to be construed in a liberal
manner and a pedantic approach has to be
eschewed. (Para 26)
C. Civil Law-Indian Railways Act, 1890 -
Section 140 - Mode of Service - Multiple or
Exclusive - A combined reading of Sections 78B
and 140, show that no exclusive mode for
service of notice has been provided in the
statute. The service can be made by multiple
modes as described in the said provision - The
phrase 'may be served' in Section 140 manifests
the permissive intent of the legislature in regard
to the mode of service and conferment of the
option of choosing the mode of service upon the
claimant - The legislature accords primacy to
the fact of effective service of notice over the
method of service. (Para 33, 34 and 36)
Appeal dismissed (E-1)
Cases relied on :-
1. Jetmull Bhojraj Vs.