Equivalent Citation: 2013(8)ADJ617, 2013 (100) ALR 621, 2013 121 RD228
IN THE HIGH COURT OF ALLAHABAD
Second Appeal No. 772 of 1979
Decided On: 04.04.2013
Tika Ram and Another
Vs.
Daulat Ram and Others
Hon'ble Judges/Coram:Sudhir Agarwal, J.
1. Heard Sri M.A. Qadeer, Senior Advocate, assisted by Sri Mohd. Waris, Advocate for defendants-appellants and Sri Niraj Agarwal, Advocate for the plaintiff-respondent No. 1. The defendants-respondents 2, 4 and 5 have died and since their heirs or legal representatives were not brought on record, appeal stood abated against them pursuant to this Court's order dated 29th April, 2010. The entire appeal had not abated for the reason that decree holder plaintiff-respondent No. 1 is there and cause of action therefore, continues to survive.
2. This is defendants' appeal under Section 100 of Code of Civil Procedure, 1908 (hereinafter referred to as "CPC"). After hearing this appeal under Order XLI, Rule 11 CPC, this Court formulated following two substantial questions of law:
(i) Whether alleged admission by a party is to be taken as a whole?
(ii) Whether Rules regarding Pardanashi lady would apply equally to a ignorant and illiterate woman though she may not be a Pardanashi?
3. The brief facts giving rise to present dispute are as under:
4. The plaintiff-respondent brought an Original Suit No. 97 of 1972 for specific performance of contract in respect to disputed land, which is an agricultural land. The plaint case set up by Sri Daulat Ram, (plaintiff-respondent No. 1) is that, Smt. Deva, (defendant No. 1), was Sirdar and bhumidhar of some plots, details whereof was given in para 1 of the plaint. The aforesaid lady entered into an agreement for sale on 14th September, 1965 with plaintiff for sale of land in dispute for consideration of Rs. 10,000/- where against Rs. 5,000/- was paid in advance. The sale-deed was to be executed in five years after acquiring bhumidhari Sanad in respect of Sirdari land. The plaintiff tendered a notice dated 4.9.1970 to defendant No. 1 requiring her to execute sale-deed, which was replied differently. Defendant No. 1 however executed sale-deed in favour of defendant Nos. 2 and 3 i.e. appellants before this Court, who had due knowledge of agreement for sale dated 14.9.1965 but they still proceeded for transaction of sale of disputed land. Defendant No. 1 is bound to execute sale-deed in favour of plaintiff and deeds executed between defendant Nos. 2 and 3 is of no consequence and void.
5. Defendant No. 1 contested suit stating that neither she ever agreed to sell the land in dispute to plaintiff nor ever received any amount from him. She also denied execution of agreement for sale dated 14.9.1965. She pleaded that after the death of her husband, one Mahavir Prasad, uncle of plaintiff became her Karkun. However, he was removed. In connection with sale of crop of grove of defendant No. 1 during the period he was looking after agricultural land of the widow, he might have obtained her thumb impressions on some papers and may have got prepared agreement for sale dated 14.9.1965 on the same, but defendant No. 1 herself has not entered into an agreement for sale with plaintiff at any point of time for sale of disputed land.
6. The Trial Court (hereinafter referred to as "T.C.") formulated four issues:
1. Whether the defendant No. 1 had agreed to sell the land in suit to the plaintiff for Rs. 10,000.00 and had executed the deed of agreement as alleged?
2. Whether the plaintiff had given Rs. 5000.00 by way of advance to the defendant No. 1?3. Whether the defendant No. 2 is bona fide purchaser for value without notice?4. To what relief, if any, is the plaintiff entitled?
7. The above issues were answered in favour of defendant No. 1 and consequently the suit was dismissed fide judgment and decree dated 25th January, 1974. There against, plaintiff-respondent No. 1 filed Civil Appeal No. 100 of 1974 in the Court of 1st Additional District Judge, Bulandshahr, which has been allowed by Lower Appellate Court (hereinafter referred to as "L.A.C.") vide judgment and decree dated 3rd January, 1979 and setting aside T.C.'s decree.
8. The L.A.C., decreeing the suit, had directed defendant Nos. 1/1 to 1/4, (who were substituted after the death of defendant No. 1), to execute sale-deed in respect to plots covered by agreement for sale dated 14.9.1965. The L.A.C. while reversing judgment of T.C. has proceeded to observe that execution of agreement dated 14.9.1965 by Smt. Deva, defendant No. 1 cannot be doubted. Findings of T.C. otherwise are erroneous and baseless, which have been recorded on account of insufficient or misconceived appreciation of evidence. L.A.C. had proceeded further to support above view by observing that opinion of finger print expert i.e. PW-3 was rejected for insufficient reasons. One of alleged insufficient justification is that defendant No. 1 did not attempt to rebut finger print expert's opinion i.e. that of PW-3, by producing opinion of another expert herself and therefore, there was no justification to reject opinion of PW-3. L.A.C. further proceeded to observe that Smt. Deva in her written statement itself has not denied thumb marks in agreement and indirectly had conceded, there was no occasion for plaintiff to obtain opinion of further finger print expert. According to L.A.C., opinion of finger print expert (PW-3) was an unrebutted evidence, adduced in support of plaintiff, and there being no denial by defendant No. 1 in respect to her thumb marks on agreement deed, execution of agreement for sale therefore could not have been doubted. Another reason justifying above inference he (L.A.C.) has referred to is the statement of PW-2, Sri Mahavir Prasad, who has said to be scribe of the deed. He has held that deposition of PW-2 was wrongly rejected by T.C. referring to litigation going on between defendant No. 1 and PW-2, inasmuch as, litigation commenced in 1966 while agreement was executed on 14.9.1965 and therefore, there was no reason to doubt the said agreement on account of subsequent litigation.
9. Sri M.A. Qadeer, learned counsel for the appellant contended that defendant No. 1 was an illiterate rural folk and neither could have understood legal complexities nor was otherwise able to understand things, as are normally conceivable in case of a person of ordinary prudence, having requisite awareness, knowledge etc. of the matters like the present one. He said that burden of proof has been wrongly shifted by L.A.C. on the basis of reasons, which are, ex facie, shallow, flimsy and inconsistent with legal principles applicable in such cases, hence, impugned judgment of L.A.C. having resulted in grave injustice to the appellants, is liable to be set aside.
10. Sri Niraj Agarwal per contra has defended the case by relying and reiterating what has been said by L.A.C.
11. First of all I would like to consider the view expressed by L.A.C. in the context of opinion of finger print expert (PW-3). It cannot be doubted that opinion of finger print expert is an evidence of weakest nature.
12. Evidence of an expert is only an opinion. Expert evidence is only a piece of evidence and external evidence. It has to be considered alongwith other pieces of evidence. Which would be the main evidence and which is the corroborative one depends upon the facts of each case. An expert's opinion is admissible to furnish the Court a scientific opinion which is likely to be outside the experience and knowledge of a Judge. This kind of testimony, however, has been considered to be of very weak nature and expert is usually required to speak, not to facts, but to opinions. It is quite often surprising to see with what facility, and to what extent, their views would be made to correspond with the wishes and interests of the parties who call them. They do not, indeed, wilfully misrepresent what they think, but their judgment becomes so warped by regarding the subject in one point of view, that, when conscientiously deposed, they are incapable of expressing a candid opinion.
13. When there are contradictory opinion of hand writing experts, it is always open to the Court concerned to form its opinion after careful consideration of expert's opinion as also document concerned. It is not uncommon where two experts employed by different parties gave opinion, heavily influenced by the interest of the party concerned who approach them and it is matter of great concern also that these experts, instead of adhering to their professional expertise with absolute impartiality, unfortunately lean and get influenced and biased by interest of the party, who approach and seek their opinion.
14. The deformity in the functioning of experts is not new. Historically also the Courts have come across it and made their observation. It is not uncommon where Experts' opinion used to get influenced by their closeness or otherwise relationship developed with the persons who receive their service.
15. In Ramesh Chandra Agrawal v. Regency Hospital Ltd. and others, MANU/SC/1641/2009 : JT 2009 (12) SC 377, Apex Court considered the issue pertaining to expert opinion in a bit detail. In para 11, the Court has said:
The law of evidence is designed to ensure that the Court considers only that evidence which will enable it to reach a reliable conclusion. The first and foremost requirement for an expert evidence to be admissible is that it is necessary to hear the expert evidence. The test is that the matter is outside the knowledge and experience of the lay person.... The scientific question involved is assumed to be not with the Court's knowledge. Thus cases where the science involved, is highly specialized and perhaps even esoteric, the central role of expert cannot be disputed. The other requirements for the admissibility of expert evidence are:
i. that the expert must be within a recognised field of expertise
ii. that the evidence must be based on reliable principles, andiii. That the expert must be qualified in that discipline.
16. The Court has also said that in order to bring the evidence of a witness as that of an expert it has to be shown that he has made a special study on the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge on the subject. Referring to this Court's decision in Mt. Titli v. Alfred Robert Jones, MANU/UP/0107/1933 : AIR 1934 All 273, the Court said that it is not the province of the expert to act as Judge or Jury. The real function of the expert is to put before the Court all the materials, together with reasons which induce to come to the conclusion, so that the Court, although not an expert, may form its own judgment by its own observation of those materials. Again in para 15 of the judgment in Ramesh Chandra Agrawal (Supra), the Court said:
An expert is not a witness of fact and his evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of these criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration alongwith other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusions. (See Malay Kumar Ganguly v. Dr. Sukumar Mukherjee and others) Criminal Appeal Nos. 1191-1194 of 2005 alongwith Civil Appeal No. 1727 of 2007, decided on 7.8.2009.
17. It also referred to an earlier decision in The State (Delhi Administration) v. Pali Ram, MANU/SC/0189/1978 : AIR 1979 SC 14, where the Court said "No expert would claim today that he could be absolutely sure that his opinion was correct, expert depends to a great extent upon the materials as put before him and the nature of question put to him" and further in para 17 of the judgment in Ramesh Chandra Agrawal (supra) the Court said:
In the Article "Relevancy of Expert's Opinion" it has been opined that thevalue of expert opinion rest on the facts on which it is based and his competency for forming a reliable opinion. The evidentiary value of the opinion of expert depends on the facts upon which it is based and also the validity of the process by which the conclusion is reached. Thus the idea that is proposed in its crux means that the importance of an opinion is decided on the basis of the credibility of the expert and the relevant facts supporting the opinion so that its accuracy can be cross checked.Therefore, the emphasis has been on the data on basis of which opinion is formed. The same is clear from following inference: Mere assertion without mentioning the data or basis is not evidence, even if it comes form expert. Where the experts give no real data in support of their opinion, the evidence even though admissible, may be excluded from consideration as affording no assistance in arriving at the correct value.
(emphasis added)
18. Musheer Khan @ Badshah Khan and another v. State of Madhya Pradesh, MANU/SC/0065/2010 : AIR 2010 SC 762, is a very recent judgment where the Court has said "under the Evidence Act the word 'admissibility' has very rarely been used. The emphasis is on relevant facts. In a way relevancy and admissibility have been virtually equated under the Indian Evidence Act." Further referring to the opinion of finger print expert in that matter it says, that, it is well known that the evidence of finger print expert falls under the category of expert evidence under Section 45 but it is also clear that this evidence of finger print expert is not substantive evidence. Such evidence can only be used to corroborate some items of substantive evidence which are otherwise on record.
19. Lord Campbell in Tracy Peerage Case (1843) 10 CI & F 154 said that, being zealous partisans, their belief becomes synonymous with faith as defined by the Apostle, and it too often is but "the substance of things hoped for, the evidence of things not seen". He also said that, skilled witnesses come with such a bias on their minds to support the cause in which they are embarked, that hardly any weight may be given to their evidence.
20. Miller J. in Middllings P. Co. v. Christian, 4 Dillon 448 said, "By own experienced both in the local Courts and in the Supreme Court of the United States is, that whenever the matter in contest involves an immense sum in value, and when the question turns mainly upon opinions of experts, there is no difficulty in introducing any amount of them on either side."
21. It would further be useful to quote from Sarkar's Law of Evidence, 16th Edition, 2007 Vol. 1, page 1052:
The infirmity of expert evidence consists in this that it is mostly matters of opinion and is based on facts detailed by others or assumed facts or opinion against opinion and experts are selected by parties by ascertaining previously that they will give an opinion favourable to the party calling them. Expert evidence is however, of value in cases where the Courts have to deal with matters beyond the range of common knowledge and they could not get along without it, eg in matters of scientific knowledge or when the facts have come within the personal observation of experts.
22. The learned author on page 1053 (supra) also said, An expert is fallible like all other witnesses and the real value of his evidence consists in the logical inferences which he draws from what he has himself observed, not from what he merely surmises or has been told by others. Therefore in cross-examining him, it is advisable to get at the grounds on which he bases his opinion. There is special difficulty in dealing with the evidence of expert witnesses. Such evidence must always be received with caution; they are two often partisans-that is, they are reluctant to speak quite the whole truth, if the whole truth will tell against the party who had paid them to give evidence. At the same time such witnesses are in a position of advantage; for they have had that special training and experience which the judge and jury are without; and the absence of which renders necessary the presence of such witness. Expert witnesses are far too prone to take upon themselves the duty of deciding the questions in issue in the action, instead of confining themselves to stating fairly and clearly their real opinion on the matter.
23. In Gulzar Ali v. State of Himachal Pradesh MANU/SC/0911/1998 : 1998 (2) SCC 192, the Court observed that the observation of the High Court that there is a natural tendency on the part of an expert witness to support the view of the party who called him, could not be downgraded. Many so-called experts have been shown to be remunerated witnesses making themselves available on hire to pledge their oath in favour of the party paying them.
24. In Hari Singh v. Lachmi, 59 IC 220, the Court observed that the evidence of skilled witness, howsoever eminent, as to what he thinks may, or may not have taken place under a particular combination of circumstances, howsoever confidently he may speak, is ordinarily a matter of mere opinion. Human judgment is fallible. Human knowledge is limited and imperfect. An expert witness howsoever impartial he may wish to be, is likely to be unconsciously prejudiced in favour of the side which calls him. The mere fact of opposition on the part of the other side is apt to create a spirit of partisanship and rivalry, so that an expert witness is unconsciously impelled to support the view taken by his own side. Besides it must be remembered that an expert is often called by one side simply and solely because it has been ascertained that he holds views favourable to its interests.
25. In Lalta Prasad v. Emperor, 5 IC 355, the Judicial Commissioner, Oudh observed:
Expert testimony derived from comparison of handwriting is no doubt very valuable as evidence corroborating the direct evidence if any upon the point, but it is only in rare cases that it can take its place.
26. A Single Judge of this Court also expressed the same opinion in Saqlain Ahmad v. Emperor, MANU/UP/0200/1935 : AIR 1936 All 165, observing:
The value of the expert evidence depends largely on the cogency of the reasons on which it is based. In general it cannot be the basis of conviction unless it is corroborated by other evidence.
27. Hon'ble Subba Rap (C.J.) (as His Lordship then was) in Guntaka Hussenaiah v. Busetti Yerraiah, MANU/AP/0044/1954 : AIR 1954 Andhra 39 said:
The expert's evidence is only apiece of evidence. A Judge of fact will have to consider that evidence alongwith the other pieces of evidence. Which is the main evidence and which is the corroborative one depends upon the facts of each case.
(emphasis added)
28. In Magan Bihari Lal v. State of Punjab, MANU/SC/0105/1977 : AIR 1977 SC 1091, the Court held that it is now well-settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a Handwriting Expert. This type of evidence, being opinion evidence, is by its very nature, weak and infirm.
29. The caution, the Court must exercise while considering opinion rendered by an expert is expressed in Murarilal v. State of M.P., MANU/SC/0189/1979 : AIR 1980 SC 531, where the Court held:
But, the hazard in accepting the opinion of any expert, handwriting expert or any other kind of expert, is not because experts, in general, are unreliable witnesses the quality of credibility or incredibility being one which an expert shares with all other witnesses, but because all human judgment is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion. The more developed and the more perfect a science, the less the chance of an incorrect opinion and the converse if the science is less developed and imperfect. The science of identification of finger-prints has attained near perfection and the risk of an incorrect opinion is practically non-existent. On the other hand, the science of identification of handwriting is not nearly so perfect and the risk is, therefore, higher. An expert deposes and not decides. His duty is to furnish the judge with the necessary scientific criteria for testing the accuracy of his conclusion, so as to enable the judge to form his own independent judgment by the application of these criteria to the facts proved in evidence. (Para 4)
Reasons for the opinion must be carefully probed and examined.... In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of an handwriting expert may be accepted....(para 11)
30. In State v. Kanhu Charan Barik, MANU/OR/0126/1982 : 1983 Cr LJ 133, a Division Bench of Orissa High Court held:
Evidence of experts after all is opinion evidence. The opinion is to be supported by reasons. The Court has to evaluate the same like any other evidence. The reasons in support of the opinion, if convincing, make the opinion acceptable. There is no place for ipse dixit of the expert. It is for the Court to judge whether the opinion has been Correctly reached on the data available and for the reasons stated.
(emphasis added)
31. In Forest Range Officer and others v. P. Mohammed Ali and others, MANU/SC/0037/1994 : AIR 1994 SC 120, it was observed:
The expert opinion is only an opinion evidence on either side and does not aid us in interpretation.
32. It would be prudent to quote the following passage from Taylor's Law of Evidence, page 1344, para 1877 about the admissibility of evidence of experts:
Still as experts usually come with a bias on their minds to support the cause in which they are embarked, little weight will in general be attached to the evidence which they give, unless it be obviously based on sensible reasoning.
33. In Mt. Titli v. Alfred Robert Jones, MANU/UP/0107/1933 : AIR 1934 All 273, it was observed:
The opinion of an expert by itself may be relevant but would carry little weight with a Court unless it is supported by a clear statement of what he noticed and on what he based his opinion. The expert should, if he expects his opinion to be accepted, put before the Court all the materials which induced him to come to his conclusion, so that the Court, although not expert, may form its own judgment on those materials......... The mere mention that certain kind of tests knows as Binet and Simon tests were applied and certain results were obtained, might be relevant as piece of evidence but would not be conclusive.
(emphasis added)
34. In Palaniswamy Vaiyapuri v. State, MANU/MH/0126/1968 : AIR 1968 Bom 127, a Division Bench of Bombay High Court in para 11 of the judgment said:
The opinion of an expert must be supported by reasons and it is the reasons and not ipse dixit which is of importance in assessing the merit of the opinion.
35. In Sita Nath Basak v. Mohini Mohan Singh, MANU/WB/0149/1923 : AIR 1924 Cal 595, a Division Bench of Calcutta High Court observed that in the matter of infringement of copyright, the Court should be reluctant to sit as an ex-pert to decide the question of infringement of copyright and the proper course, in ordinary circumstances, is to get the opinion of experts. This was explained in Government of West Bengal v. Nitya Gopal Basak and others, MANU/WB/0332/1984 : 1985 Cri LJ 202, by a learned Single Judge of Calcutta High Court that the above view was expressed primarily on the ground that the Court would have to take great pains and would have to waste its valuable time to ascertain how far the piracy extended and it was desirable therefore to seek opinion of expert to compare the works and to ascertain the details to avoid excessive expenditure of time and labour. It was also pointed out that such a course was also necessary as the Court might not be conversant with the alphabets of the book.
36. In the context of opinion of Handwriting Expert, in Fakhruddin v. State of Madhya Pradesh, MANU/SC/0332/1966 : AIR 1967 SC 1326, the Court held that the opinion of Handwriting Expert though is relevant in view of Section 45 of the Evidence Act, but that too is not conclusive. Reliance was placed on earlier decisions in Ram Chandra v. State of Uttar Pradesh, MANU/SC/0107/1956 : AIR 1957 SC 381 (at page 388) and Ishwari Prasad Misra v. Mohammad Isa, MANU/SC/0040/1962 : AIR 1963 SC 1728, where it was observed that expert evidence as to handwriting is an opinion evidence and it can rarely, if ever, take the place of substantive evidence. It cannot be conclusive because it is after all opinion evidence. In para 11 of the judgment in Fakhruddin (supra), the Apex Court further observed, where an expert's opinion is given, the Court must see for itself and with the assistance of the expert come to its own conclusion whether it can safely be held that the two writings are by the same person. This is not to say that the Court must play the role of an expert but to say that the Court may accept the fact proved only when it has satisfied itself on its own observation that it is safe to accept the opinion whether of the expert or other witness.
37. In re B. Venkata Row (1913) 36 Mad 159, a passage from Dr. Lawson's work on the 'Law of Expert and Opinion Evidence" was quoted, which reads:
The evidence of the genuineness of the signature based upon the comparison of handwriting and of the opinion of experts is entitled to proper consideration and weight. It must be confessed however that it is of the lowest order of evidence or of the most unsatisfactory character. We believe that in this opinion experienced laymen unite with the members of the legal profession. Of all kinds of evidence admitted in a Court this is the most unsatisfactory. It is so weak and decrepit as scarcely to deserve a {dace in our system of jurisprudence.
(emphasis added)
38. This was followed in Indar Datt v. Emperor, MANU/LA/0292/1931 : AIR 1931 Lah 408. A Similar observation was made by Division Bench of this Court in Srikant v. King Emperor, (1905) 2 ALJ 444 and Kali Charon Mukerji v. Emperor, (1909) 9 Cr.L.J. 498.
39. In Sudhindra Nath v. The King, MANU/WB/0052/1952 : AIR (39) 1952 Cal 422, it was observed:
We are now left with the evidence of identification by the hand-writing Expert. With regard to this class of evidence, it is a rule of law that it is extremely unsafe to base a conviction upon the opinion of hand-writing experts. Without substantial corroboration; because it is well known that a comparison of hand-writing as a mode of proof is always hazardous & inconclusive, unless it is corroborated by other evidence.
(emphasis added)
40. In Perumal Mudaliar v. South Indian Railway Company Ltd., MANU/TN/0199/1936 : AIR 1937 Mad 407, the manner of recording opinion of expert was considered and a Single Judge (Hon'ble Beasley, C.J.) said:
The evidence of experts must be given in the ordinary way. Subject to certain exceptions those exceptions being amongst others, the certificates of the Imperial Serologist touching the matter of bloodstains and of the Chemical Examiner, which are made admissible in evidence by themselves it is quite obvious that the opinion of an expert must be given orally and that a report merely or certificate by him cannot possible be evidence. Unless he goes into the witness box and gives oral evidence, there can be no cross-examination of the expert at all.
(emphasis added)
41. In Haji Mohammad Ekramul Haq v. The State of West Bengal MANU/SC/0116/1958 : AIR 1959 SC 488, the Court held that an opinion of expert unsupported by any reason is not to be relied on.
42. In The Forest Range Officer and others v. P. Mohammed Ali and others, MANU/SC/0037/1994 : AIR 1994 SC 120, the Court said:
The expert opinion is only an opinion evidence on either side and does not aid us in interpretation.
43. Who an expert witness would be, has been considered in State of Himachal Pradesh v. Jai Lal and others, MANU/SC/0557/1999 : AIR 1999 SC 3318 and it says:
An expert witness, is one who has made the subject upon which he speaks a matter of particular study, practice; or observations; and the must have a special knowledge of the subject.(para 13)
Therefore, in order to bring the evidence of a witness as that of an expert it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject.(para 17)18. An expert is not a witness of fact His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration alongwith the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and materials furnished which form the basis of his conclusions.19. The report submitted by an expert does not go in evidence automatically. He is to be examined as a witness in Court and has to face cross-examination.(emphasis added)
44. In Murari Lal v. State of Madhya Pradesh, MANU/SC/0189/1979 : 1980 SCC (Cri) 330, it was held that the Court itself can compare writings since it is so enabled vide Section 73 of the Evidence Act. The Expert's opinion only act as an aid to the Court and not binding on it. In absence of reliable Expert's opinion or no opinion, the Court can seek guidance from authoritative text books, own experience and knowledge.
45. To the same effect is the decision in Lalit Popli v. Canara Bank and others, MANU/SC/0144/2003 : (2003) 3 SCC 583.
46. In the light of the above discussion of law in the context of expert's opinion and in particular, finger print expert, I propose to look into the record of this case to find out whether the same satisfy legal requirement or not.
47. T.C. has disbelieved to rely on opinion of PW-3 giving reasons based on opinion of PW-3 which contains the reasons to form opinion that thumb impression tally with that of defendant No. 1. The T.C. has observed:
The opinion of Finger Print Expert is not based on sound reasonings. It is evident from record that in the specimen thumb impression, there is crease, whereas in the disputed thumb impression, there was no crease at all. Further, this witness had conceded that in one thumb impression, delta is not visible and ridges can also not be counted. In view of existence of crease in the specimen thumb impression and its absence in the disputed thumb impression, I am not inclined to accept the opinion of this Finger Print Expert.
48. The observations and comments of T.C. in respect to reasoning of PW-3 so as to form opinion has not at all been touched by L.A.C. and there is no finding that said comments and observations made by T.C. in respect of opinion of PW-3 is incorrect or there is any misreading etc. Without reversing the aforesaid reasoning, it was not legally permissible for L.A.C. to hold that expert's opinion ought not to have been disbelieved only for the reason that defendant No. 1 did not adduce another expert's opinion in support of her case. It is true that L.A.C. being the last Court of fact could have reversed a finding of fact recorded by T. C. but unless reasoning assigned by T.C. to form opinion in one or the other way is discussed and found erroneous, L.A.C. could/should not have reversed a finding of fact recorded by T.C. In this regard it would be apt to reproduce certain authorities commenting upon circumstances and the manner in which L.A.C. should look into findings of T.C. In an eventuality of reversal.
49. In S.V.R. Mudaliar (Dead) by Lrs. and others v. Rajabu F. Buhari (Mrs) (Dead) by Lrs. and others, MANU/SC/0712/1995 : AIR 1995 SC 1607, the Court in paras 14 and 15 of the judgment has upheld the contention that though the appellate Court is within its right to take a different view on the question of fact, but that should be done after adverting to the reasons given by T.C. in arriving at the findings in question. The L.A.C. before reversing a finding of fact has to bear in mind the reasons ascribed by T.C. The Apex Court relied and followed an earlier decision of Privy Council in Rani Hemant Kumari v. Maharaja Jagadhindra Nath, 10 CWN 630 and in para 15 of the judgment said:
There is no need to pursue the legal principle, as we have no doubt in our mind that before reversing a finding of fact, the appellate Court has to bear in mind the reasons ascribed by the trial Court. This view of ours finds support from what was stated by the Privy Council in Rani Hemant Kumari v. Maharaja Jagadhindra Nath, MANU/MH/0059/1906 : (1906) 10 Cal. W.N. 630, wherein, while regarding the appellate judgment of the High Court of judicature at Fort William as "careful and able", it was stated that it did not "come to close quarters with the judgment which it reviews, and indeed never discusses or even alludes to the reasoning of the Subordinate Judge.
(emphasis added)
50. Following the above decision, Hon'ble B.L. Yadav, J in Smt. Sona Devi v. Nagina Singh and others, MANU/BH/0012/1997 : AIR 1997 Pat 67, observed that whenever judgment of L.A.C. is a judgment of reversal, it is the primary duty of L.A.C. while reversing findings of T.C. to consider the reasons given by T.C. and those reasons must also be reversed. Unless that is done, judgment of L.A.C. cannot be held to be consistent with the requirement of Order XLI, Rule 31, which is a mandatory provision.
51. The above view has also been followed recently in Jaideo Yadav v. Raghunath Yadav and another, MANU/BH/0934/2009 : 2009(3) PLJR 529, wherein the Court said that T.C. recorded its findings but L.A.C. had not reversed the said findings and rather on the basis of some findings of its own, title appeal was allowed by L.A.C. without appreciating findings of T.C. on the concerned issue. The Court then said:
The law is well-settled in this regard that where the judgment of the lower appellate Court is a judgment of reversal it is primary duly of the appellate Court to consider the reasons given by the trial Court and those reasons must also be reversed.
(emphasis added)
52. This Court has also followed the same view in Doodhnath and another v. Doodhnath and another, MANU/UP/0810/2005 : AIR 2006 All 3.
53. Now, I come to second aspect that there was no denial by defendant No. 1 about thumb impression on agreement for sale dated 14th September, 1965.
54. Here also I find approach of L.A.C. apparently erroneous and also contrary to record. Defendant No. 1 did not say anywhere that agreement for sale in question contains thumb impressions which she had put. On the contrary, what she actually has said is that uncle of plaintiff used to work as Karkun in 1964-65 to look after agricultural land of defendant No. 1, after the death of her husband. During aforesaid period, he might have obtained her thumb impressions on some blank papers and agreement for sale in question might have been prepared on the same.
55. The defence is quite clear. There is no admission that thumb impressions on agreement for sale are that of defendant No. 1. It cannot be expected from an illiterate person to tell whether a particular thumb impression belong to her/him or not from a bare perusal thereof. It requires an expert's study or atleast a deeper study by person(s) having adequate knowledge on the subject of examining finger prints. Mere fact that defendant No. 1 stated in her defence that her thumb impressions might have been taken on some blank papers per se would not mean that she admitted that thumb impression on agreement in question belong to her. It cannot be said that there was an admission by defendant No. 1 in respect of thumb impression found on the instrument of agreement in question. The L.A.C. has clearly misdirected itself by reading aforesaid defence of defendant No. 1 as if it was her admission. A similar question came to be considered before this Court in Second Appeal No. 194 of 1978 (Parmanand and others v. Kashi Dhabi and others) decided on 8th February, 2013 and the Court in paras 10, 11, 12, 13 and 14 said:
10. Trial Court has clearly held that Sri Ramesh Chaubey and Hardev Pathak were attesting witnesses but they were not produced. However, it has misread that thumb impression on the instrument of agreement for sale was admitted by defendant No. 1 when he pleaded that plaintiff obtained thumb impressions of defendant No. 1 on certain blank papers and might have prepared an agreement on such papers. This statement of defendant No. 1 only states that plaintiff obtained his thumb impression on certain blank papers but it does not mean that instrument in question, relied by plaintiff for enforcement in the suit for specific performance, contains thumb impressions, which are that of defendant No. 1. It was only presumption on the part of Trial Court to read pleading of defendant No. 1 that alleged blank papers having thumb impressions of defendant No. 1 are the same, which have been used in preparing agreement for sale in question. Neither in written statement nor otherwise this Court find admission of defendant No. 1 that thumb impression found on agreement for sale dated 18.9.1974, which is alleged to that of defendant No. 1, are actually his thumb impression. The document itself and thumb impression thereon have not been admitted by defendant No. 1 at any stage. It is this fact which has been noticed by lower Appellate Court and I find rightly.
11. The Lower Appellate Court thus rightly held that it was necessary to have aforesaid thumb impressions examined by an expert to show whether the same are that of defendant No. 1 or not. No such expert opinion was obtained or adduced by plaintiff to support that thumb impression on agreement for sale are that of defendant No. 1. The alleged marginal witnesses of document also were not produced. The best evidence, which could have been available to plaintiff obviously was not adduced. The Trial Court's approach basically has gone as if it was for the defendant vendor to prove otherwise since plaintiffs onus discharged as soon as defendant pleaded that his thumb impressions were obtained on certain blank papers and this is sufficient evidence and admission to prove that agreement for sale was actually executed by him. The lower Appellate Court in my view, has rightly held that it was for the plaintiff to prove the deed of agreement by adducing expert opinion to show that thumb impression on the document are that of defendant No. 1 and further that document was actually executed and not that has been prepared on blank papers. The marginal witnesses ought to have been produced to prove this fact, which has not been done.12. The weakness of defence can never justify to decree a suit. The plaintiff has to stand on legs by himself. The plaintiff No. 2 Ramanand Yadav himself deposed statement as PW-1. He has said that stamp paper was brought by Kashi Dhobi i.e. defendant No. 1 himself. PW-2 is Girija Nand, who claimed himself to be scribe of document, stated that defendant No. 1 put thumb impression on agreement for sale in question before him. He has not stated as to how defendant No. 1 knew him though claimed that he (defendant No. 1) himself came alongwith stamp paper for scribing instrument in question. It is also surprising that plaintiff No. 2 claimed that transaction was discussed and finalized on 18.9.1974 itself in the morning. Defendant No. 1 had come to his residence accompanying by Hardev Pathak and then sale transaction was discussed and finalized. Thereafter, in the noon, they reached Civil Court and got instrument prepared. PW-2 admits that he was well acquainted with Hardev Pathak. Defendant No. 1 has clearly denied his acquaintance with Ramesh Chaubey and Hardev Pathak both. It is in these circumstances it was incumbent upon plaintiff to produce marginal witnesses in the witness box but he withheld them for the reason not explained at all.13. Whenever a dispute regarding execution of a document is raised and defendant is an illiterate farmer of rural area, Court(s) has/have to consider the matter with great caution and care so that an innocent illiterate person may not suffer for something he was not able to understand.14. In my view, agreement for sale in question has not been proved by plaintiff by adducing credible, reliable evidence and there is no evidence of an independent person to prove that thumb impression on the document is that of defendant No. 1. In these circumstances, question, referred to above, is answered against plaintiff-appellant.
56. Now the only evidence remained to be considered is that of PW-2, which has also been heavily relied by L.A.C. to take a different view. T.C. disbelieved evidence of PW-2 for the reasons; (a) PW-2 himself, by profession, was a Hakim. He could not explain whether deed writing is main or ancillary job or he has been writing deeds from time to time and that is how possess requisite expertise or knowledge to scribe an agreement for sale, and (b) all the sheets of agreement for sale did not contain thumb impression and in particular at the end of document there was no thumb impression at all.
57. On this aspect L.A.C. has not at all adverted to. The T.C., on the contrary, has said:
In Ext, 1 the deed of agreement, there is absence of thumb impression at the end of contents of agreement. When this witness was asked as to why he did not obtain the thumb impression of Smt. Deva at the bottom, he told that there was no space for it. If we look to Ext. 1, the deed of agreement, we find that there was plenty of space at the end of the contents of the agreement to sell.
58. Before this Court also on this aspect no justification could be forwarded by counsel for respondent. It is true when a document contains several sheets, if signature or thumb impression is/are missing on one or the two sheets, that by itself may not be a ground to reject entire document or to treat that such a document was not validly executed or that such a document is not a valid document but it depends on the facts of each case. When the Court is looking into validity of a document, execution whereof in its entirety has been denied by executor and a defence of fraud, misrepresentation and/or undue influence has been taken, particularly when alleged executor is an illiterate lady, from rural background, and that too widow, circumstances and level of caution to be observed by Courts is totally different. Burden of proof of a fact is obviously on the person, who takes a defence of fraud or misrepresentation but law in this regard is a little different when such plea of fraud, misrepresentation or undue influence is taken by an illiterate, rural, widow lady.
59. In my view, in such a case burden of proof and heavy onus lie upon plaintiff who seeks to enforce agreement for sale by seeking a decree of specific performance when such a document has been denied by alleged executor who is an illiterate widow lady of a rural area.
60. Section 101 of Indian Evidence Act, 1872 (hereinafter referred to as "Act, 1872") talks of burden of proof, and says:
Burden of proof.--Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
61. The burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it; for a negative is usually incapable of proof. The provision is based on the rule, i.e. incumbit probatio qui dicit, non qui negat. In Constantine Line v. I S Corpn, (1941) 2 All ER 165, Lord Maugham said;
It is an ancient rule founded on consideration on good sense and should not be departed from without strong reasons.
62. A person who asserts a particular fact has to prove the same. Until such burden is discharged, the other party is not required to be called upon to prove his case. Whoever desires a Court to give judgment, dependent on the existence of facts which he asserts, must prove that those facts exist. The distinction between "burden of proof" and "onus" is that the former lies upon the person and never shifts but the "onus" shifts. Shifting of onus is a continuous process in the evaluation of evidence. For example, in a suit for possession, based on title once the plaintiff is able to create a high degree of probability so as to shift the onus on the defendant, it is then for the defendant to discharge his onus and in absence of such discharge by defendant, burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of plaintiffs title.
63. The above distinction between "burden of proof and "onus" of proof has been explained in A. Raghavamma v. A. Chenchamma, MANU/SC/0250/1963 : AIR 1964 SC 136, followed in R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple and another, MANU/SC/0798/2003 : (2003) 8 SCC 752.
64. Section 102 of Act, 1872 says that burden of proof in a suit would lie on a person who would fail if no evidence at all were given on either side. Here it is not degree of proof but the onus to lead evidence i.e. obligation to begin to prove a fact. The burden of proof as such has not been defined in the Act but looking to the substance and the context and spirit, it can be said that burden to establish case, loosely, can be said to be burden of proof.
65. For applying above provision in the case in hand, there can be no manner of doubt in holding that burden of proof lies upon the plaintiff. In the case in hand, to prove that sale-deed in question suffers an infirmity, justifying its cancellation, as pleaded in the plaint and to prove those facts, burden lies upon plaintiff. But then it has to be understood that there is a distinction between "burden of proof" as a matter of law and pleading and as a matter of adducing evidence. In the first sense, the burden is always constant but burden in the sense of adducing evidence shifts from time to time, having regard to evidence adduced or the presumption of fact or law raised in favour of one or the other. On this aspect, more light emanates when we go through Sections 103 and 104 of Act, 1872, which read as under:
Section 103. Burden of proof as to particular fact.--The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
Section 104. Burden of proving fact to be proved to make evidence admissible.--The burden of proving any fact necessary to be provided in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence.
66. Looking to both these provisions, it can be said, that, when a person alleges mala fide on the part of an authority, burden to establish mala fide lie upon him. He has to adduce evidence to discharge aforesaid burden but then burden in the process of adducing evidence may shift when, prima facie, mala fide is shown, inasmuch as, then onus will shift and the other party has to establish that existence of facts constituting mala fide, in fact, did not exist and the action was not taken mala fide.
67. In the context of fraud and undue influence, how burden of proof and onus will work, will have to be considered in the context as to what undue influence is, what are its necessary ingredient and what is required by law to be proved.
68. Undue influence was read alongwith fraud and coercion and in Bishundeo Narain and another v. Seogeni Rai & Jagernath, MANU/SC/0059/1951 : AIR 1951 SC 280, it was held:
....in cases of fraud, 'undue influence' and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any Court ought to take notice however strong the language in which they are couched may be, and the same applies to undue influence and coercion.
69. The above decision has very recently been referred to and followed in Joseph John Peter Sandy v. Veronica Thomas Rajkumar and another, MANU/SC/0227/2013 : JT 2013 (4) SC 9.
70. In the present case, it is also worthy to notice that in 1965, there was no requirement under law to have an agreement for sale registered. Therefore, it was admittedly an unregistered document. In such case it has been held that onus to prove such a document lie on party who asserts that document was executed.
71. In Thiruvengada Pillai v. Navaneethammal and another, MANU/SC/0942/2008 : JT 2008 (2) SC 585 : AIR 2008 SC 1541, this Court held that when the execution of an unregistered document put forth by the Plaintiff was denied by the Defendants, the ruling that it was for the Defendants to establish that the document was forged or concocted is not a sound proposition. The first appellate Court proceeded on the basis that it is for the party who asserts something to prove that thing; and as the Defendants alleged that the agreement was forged, it was for them to prove it. But the first appellate Court lost sight of the fact that the party who propounds the document will have to prove it. It was the Plaintiff who had come to Court alleging that the first Defendant had executed an agreement of sale in his favour. The Defendant having denied it, the burden was on the Plaintiff to prove that the Defendant had executed the agreement and not on the Defendant to prove the negative.
72. In K. Laxmanan v. Thekkayil Padmini and others, MANU/SC/8352/2008 : JT 2008 (13) SC 380, this Court held that when there are suspicious circumstances regarding the execution of the Will, the onus is also on the propounder to explain them to the satisfaction of the Court and only when such responsibility is discharged, the Court would accept the Will as genuine. Even where there are no such pleas, but circumstances give rise to doubt, it is on the propounder to satisfy the conscience of the Court. Suspicious circumstances arise due to several reasons such as with regard to genuineness of the signature of the testator, the conditions of the testator's mind, the dispositions made in the Will being unnatural, improbable or unfair or there might be other indications in the Will to show that the testator's mind was not free. In such a case, the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last Will of the testator.
73. In Krishna Mohan Kul @ Nani Charan Kul and another v. Pratima Maity and others, MANU/SC/0690/2003 : JT 2003 (10) SC 150 : AIR 2003 SC 4351, it was held that when fraud, misrepresentation or undue influence is alleged by a party in a suit, normally, the burden is on him to prove such fraud, undue influence or misrepresentation. But, when a person is in a fiduciary relationship with another and the latter is in a position of active confidence the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person in the dominating position, he has to prove that there was fair play in the transaction and that the apparent is the real, in other words that the transaction is genuine and bona fide. In such a case the burden of proving the good faith of the transaction is thrown upon the dominant party, that is to say, the party who is in a position of active confidence.
74. All the above authorities have recently been reiterated and followed in Joseph John Peter Sandy (supra).
75. All these legal principles have completely been ignored by L.A.C. while returning a judgment of reversal. It is a clear but serious error of law rendering the decision of L.A.C. legally unsustainable.
76. There is one more aspect in the matter which has been noticed by T.C. but no proper justification to nullify this reason, this Court find in the judgment of L.A.C. Disputed agreement for sale was witnessed by two persons but none of them were examined by plaintiff to support execution of said document though admittedly both were alive and available. The pretext for their non examination tendered by plaintiff is that the two witnesses have been won by defendant No. 1 but to support this explanation, I find nothing on record. This is a clear unfounded explanation and was a genuine and valid reason not to discard defence of defendant No. 1 but to draw an inference against plaintiff. Responsibility to produce best evidence lie upon the person who would fail due to lack of evidence, if the fact alleged by him/her is not found proved. I am clearly of the opinion that principles applicable to Pardanashi lady, if not in its entirety, then almost to that extent, have to be applied to a case where defendant is an illiterate widow/lady from a rural area. There is not much difference in the two types of ladies. The basic social conditions of village people of this country and ground realities cannot be ignored.
77. Looking from various angles, I am clearly of the view that questions, formulated above, deserve to be answered in affirmative, and against plaintiff-respondent.
78. In the result the appeal is allowed. The Lower Appellate Court's judgment and decree dated 3rd January, 1979 is hereby set aside and that of Trial Court's judgment and decree is hereby restored and affirmed. In the result original suit No. 97 of 1972 stands dismissed. The defendants-appellants shall be entitled to costs throughout.
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