E.VISHNU NAMBOOTHIRI Vs. V.BALACHANDRAN

JUDGEMENT

(1.) A comparison made under Section 73 of the Evidence Act with respect to disputed handwriting and signature can be the sole basis in proof of due execution of a disputed document is the question came up for consideration.

(2.) A disputed promissory note, Ext.A1 was compared under Section 73 of the Evidence Act by the courts below and found resemblance with the admitted one and found that its execution is duly proved. The plaintiff gave oral evidence as PW1. But it is only an interested testimony. No independent witness was examined. Both the courts below compared the signature under Section 73 of the Evidence Act and found that the promissory note was duly executed and granted a decree.

(3.) Section 73 of the Evidence Act is really a rule of caution and prudence and not a substitute for an expert opinion under Section 45 of the Evidence Act. The court is not precluded from coming to its conclusion by a comparison under Section 73 of the Act. But the court is not an expert and cannot be an expert and as such, its conclusion may have its own infirmities. The court cannot act as a witness to its proceedings and cannot draw an expert opinion as contemplated under Section 45 of the Evidence Act under the guise of power vested under Section 73 of the Act. In short, the conclusion arrived at by the court under Section 73 of the Evidence Act is not an expert opinion as embodied under Section 45 of the Act and the court cannot be an expert within the meaning of that section. The expression 'may be compared' in the main portion of Section 73 and the expression 'for the purpose of enabling the court to compare' incorporated in the second paragraph would amply show that a comparison under that section is only a rule of caution and prudence and cannot be substituted in the place of proof. The finding rendered by both the courts below on the sole basis of comparison under Section 73 of the Evidence Act regarding the due execution of disputed promissory note cannot be sustained. The non-examination of an independent witness and absence of an expert opinion under Section 45 of the Evidence Act are fatal to the case of the plaintiff regarding proof of execution of disputed promissory note. The decree and judgment of both the courts below hence cannot be sustained and the same is set aside by allowing this appeal in part. The matter is remanded back to the trial court for fresh disposal. The parties shall appear before the trial court on 18.5.2020.