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How to prove ‘Hand Writing’? Execution of a deed – Effect of.

 Introduction:— The word ‘execution’ under the Indian Evidence Act means signing of the documents after knowing the contents thereof, Indian Standard Casting Co. (P) Ltd. v. Sati Rani Sen, (2001) 1 ICC 657 (Cal) (DB).
In other contexts, the word “Execution’ has to be understood that execution in relation to a certificate, means recovery of arrears in pursuance of the certificate, as seen under Schedule 2 Rule 1(c), Income Tax Act, 1961. Execution conveys the same meaning as ex sequi in Latin and executer in French i.e. carrying out some act or course of conduct to its completion, Hameed Joharanv. Abdul Salam(2001) 7 SCC 573.  The last state of a suit where by possession is obtained of anything recovered by a judgment. It is styled final process and is regulated by R.S.C. 1883, Ord. 42., Rule 17 of which allows immediate execution in ordinary cases. By R.S.C. 1883, Ord. 42., R. 17(b): — The Court or a judge may, at or after the time of giving judgment or making an order, stay execution until such time as they or he shall think fit. See also Civil Procedure Code, 1908 (India), Or. 21, R.17-A.

Section 67, Indian Evidence Act enacts that if a document is alleged to be signed or to have been written wholly or in part by any person the signature or handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting.

Handwriting may be proved or disproved in the following ways – (a) by calling the writer; or (b) any person, e.g, an attesting witness, who actually saw him write the document; or (c) by the evidence of the opinion of experts under S. 45 of the Act, or (d) by the opinion-evidence of non-experts, namely, under S. 47 by the evidence of a person who has acquired a knowledge of the character of the handwriting in one of the ways specified in this section. See. Pratapsinh v. The State, reported in AIR 1955 Saurashtra 68. See. Indian Standard Casting Co. (P) Ltd. v. Sati Rani Sen, (2001) 1 ICC 657 (Cal) (DB).

Witness who has knowledge may testify:—

A witness who has such knowledge may testify to his belief that a writing shown to him is in the handwriting of another person, though he cannot swear positively thereto. Such knowledge may be acquired,

firstly, by having at any time seen the party write;

secondly, by the receipt of documents purporting to be written by the party in answer to documents written by the witness or under his authority and addressed to that party; and

thirdly, by having observed in the ordinary course of business documents purporting to be written by the person in question. See. Indian Standard Casting Co. (P) Ltd. (Supra).

Explanation to Sec.47 of IEA:—

“A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him.” See. Commentary of Woodroffe and Ameer Ali on the Law of Evidence, 9th Edn., at pp. 459 and 460.

In the case of Miss Hardevi Malkani v. State, reported in AIR 1969 Allah. 423., (See also Pusaram v. Manmal, AIR 1955 Raj. 186)., the evidence was to the effect that the witness was acquainted with the handwriting of the person, whose handwriting was questioned. After having elicited that he was acquainted with the handwriting of that person, the examination of the witness came to an end. The view taken in that case was that on such statement, it was for the cross-examiner to make enquiries as to how the witness had gained acquaintance of the writing.

In the case of Mahant Jagdish Das v. Emperor, 40 Cri. LJ 27 : (AIR 1938 Pat. 497), it appears that the testimony of the witness went only to this extent that a certain document was in the handwriting of a particular person. The view taken by that Court was that the rest of the job had to be performed by the cross-examiner and that the deposition of the witness could not be deemed inadmissible within the meaning of Section 47 Indian Evidence Act.

Contents of the document are required to be proved:—

 In Ramesh Verma v. Smt. Lajesh Saxena, reported in AIR 1998 M.P 46 and Rajasthan Golden Transport Co. v. Lrs. of Amritlal reported in AIR 1998 Rajasthan 153 wherein it has been held that contents are required to be proved.

In Arumugham v. Sundarambal reported in (1999) 4 SCC 350 : AIR 1999 SC 2216 at 2219 : (1999) 3 Indian Civil Cases (SC) 637 and Kartick Prasad Gorai v. Neami Prasad Gorai reported in AIR 1998 Cal. 278 : (1999) 2 Indian Civil Cases (Cal.) 741,. it has been held that the burden of proof is upon the person who alleges to prove the contents.

The words “person executing” – Interpretation of — Privy Council :—

By s. 35 of the Registration Act registration is directed when certain persons have appeared, have been duly identified, and have admitted the execution of the document propounded, and the necessary persons are “the persons executing the document.” The appellant contends that in these words executing means and means only “actually signing.” Their Lordships cannot accept this. A document is executed, when those who take benefits and obligations under it have put or have cause to be put their names to it. Personal signature is not required, and another person, only authorized, may, by writing the name of the party executing, bring about his valid execution, and put him under the obligations involved. Hence the words “person executing” in the Act cannot be read merely as “person signing.” They mean something more, namely the person, who by a valid executionenters into obligation under the instrument. When the appearance referred to is for the purpose of admitting the execution already accomplished, there is nothing to prevent the executing person appearing either in person or by any authorized and competent attorney in order to make a valid admission. Their Lordships have failed to find in the scheme of the Act anything repugnant to this construction. Any other would involve risk of confusion and might even defeat the statutory procedure by multiplying the persons, who have to be traced and induced to attend, either by themselves or by some representative. See. AIR 1928 PC 38 : (1928) 54 Mad LJ 473 (PC) : (1927-28) 32 CWN 629 : ILR (1928) 55 Cal 532 : 1928 MWN 149 — Puran Chand Nahatta v. Monmotho Nath.

Important Case-Law:—

  1. A document is alleged to be signed by any person the signature must be proved to be in his handwriting. See. Baru Ram v. Prasanni, 1959 SCR 1403.
  2. Relating to comparison of signature, writing or seal . — See. Suyog v. State of Maharashtra, 2014 SCC OnLine Bom 510.
  3. This admission of the will in evidence does not mean that it cannot bechallenged or disproved. See. Walter D’Souza v. Anita D’Souza, 2014 SCC OnLine Bom 1671.
  4. See also. Mohan Lal v. Ajit Singh, (1978) 3 SCC 279; Baru Ram v. Prasanni, 1959 SCR 1403; M.S. Narayana Menon v. State of Kerala, (2006) 6 SCC 39; Rattan Singh v. Nirmal Gill, 2020 SCC OnLine SC 936 ; and Sk. Meheboob v. State of Maharashtra, (2005) 10 SCC 387.
  5. transfer of immovable property by way of sale can only be by a deed of conveyance … Suraj Lamp & Industries (P) Ltd. (2) v. …, (2012) 1 SCC 656.
  6. These meanings of the expressions means”, “includes” and means and includes” have been reiterated in Nasiruddin v. State of U.P., (2018) 1 SCC 754.
Civil LawEvidence Act

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