S.73 Evidence Act | Specimen Document Must Be Admitted By All Parties Before Comparing With Disputed Handwriting: Orissa High Court

The Orissa High Court has clarified that under Section 73 of the Indian Evidence Act, a specimen document must be admitted by all the parties to the dispute before that is used for comparison of hand-writing with disputed signature or document.

While explaining the requirement under the said provision, the Single Judge Bench of Justice Bibhu Prasad Routray said,

“Section 73 of the Indian Evidence Act empowers the court to compare writings with specimen or admitted documents. The phrase ‘admitted or proved to the satisfaction of the court’ used in section 73 contemplates that the specimen document taken for comparison of writing or signature in the purported document must be undisputed one and all parties to the dispute must admit the specimen signature or writing in the base document.”

Case Background

The original plaintiffs were two wives of one Langa Majhi. The present respondent being the daughter of Langa Majhi substituted both the plaintiffs upon their death. Suit Scheduled- ‘B’ lands were originally belonged to Langa Majhi.

The original plaintiffs alleged that the father of the original defendant and after him, the defendants are in forcible possession of suit Schedule-B lands. They, therefore, prayed for declaration of their right, title, interest and possession over the said lands along with mesne profit.

The case of the defendants is that the suit land was purchased by Madhu Majhi, the father of original defendant on February 8, 1947 on payment of consideration amount of Rs.3,500/-. The concerned ‘Chukti-Patra’ (conditional sale deed) was produced under Ext.A.

A document under Ext.3 was produced before the Court, which is a purported document of one proceeding of villagers unrelated to the present case, where the scribe of Ext.A namely, Harihar Majhi had put his signature. Langa Majhi was complete illiterate, who put his Left Thumb Impression (LTI) on Ext.A which was scribed by Harihar Majhi.

However, the signature of Harihar Majhi under Ext.3 was not admitted by the defendant. At the time of marking Ext.3, it was objected by the defendants and was marked by the Trial Court with note of objection by the defendant.

The Trial Court dismissed the suit deciding against the plaintiffs and confirming the sale in favour of the father of original defendant by Langa Majhi. Being aggrieved, the plaintiff filed an appeal before the District Judge, Baripada.

The Appellate Court allowed the appeal and decreed the suit in favour of the plaintiff by holding that Ext.A is a forged document. It was held by the District Judge that on comparison of signature on Ext.A with Ext.3 in exercise of power under Section 73 of the Indian Evidence Act, the signature of the scribe Harihar Majhi on Ext.A was not found genuine.

Being aggrieved by the decision of the District Judge, the original defendants approached the High Court in second appeal. The Court posed the following substantial question to be decided:

“Whether comparison of signature between two documents under Section 73 of the Indian Evidence Act would be complete and satisfactory without admission of parties in respect of specimen document?”

Court’s Findings

The Court was of the opinion that the phrase ‘admitted or proved to the satisfaction of the court’ used under Section 73 requires that the specimen document taken for comparison of writing or signature in the purported document must be undisputed one and all parties to the dispute must admit the specimen signature or writing in the base document.

It said, in case one party refuses to admit, or disputes the specimen document, it is required that the Court would first satisfy that the signature or writing on the specimen document is proved to be of the concerned person and only then proceed for comparison with the purported document.

“In the instant case, learned First Appellate Court before comparing the signature on Ext.A with Ext.3 has forgotten to take note of this basic requirement under Section 73. The learned judge proceeded to compare the signature on Ext.A with Ext.3 violating this basic rule despite the signature under Ext.3 is disputed and objected by the defendant”, the Court observed.

Therefore, the entire finding of First Appellate Court, which was based on the opinion of the District Judge that the signature of Harihar Majhi on Ext.A is different from the signature on Ext.3, was set aside.

Case Title: Basi Bewa & Ors. v. Raimani Majhiani

Case No.: Second Appeal No. 251 of 1991

Date of Judgment: May 04, 2023

Counsel for the Appellants: Mr. D.P. Mohanty, Advocate

Counsel for the Respondent: Mr. S.D. Das, Senior Advocate

Citation: 2023 LiveLaw (Ori) 57

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