(1) WP 5261.2008 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5261 OF 2008 Mohd. Abdul Wahab S/o Haji Abdul Karim Petitioner VERSUS Abdul Hai S/o Haji Abdul Karim and others Respondents ..... Mr. S.P. Deshmukh, Advocate for the Petitioner. Mr.P.R. Katneshwarkar, Advocate for the respondent nos. 1 and 2 Mr. M.V. Deshpande, Advocate for the respondent no.18 Mr. S.V. Kurundkar, Addl. Govt. Pleader for the Respondent/State. None present for other respondents though served. ..... CORAM : V.R. KINGAONKAR, J. DATED : 5TH JANUARY, 2011 ORAL ORDER:- 1. By this Petition, the petitioners challenge order dated 21.4.2008 rendered by the learned Civil Judge (S.D.), Nanded whereby the Application filed by the respondent for forwarding the copy of Siyanama (Exh.133) and copy of Wasiyatnama (Exh. 195) for opinion of hand-writing expert came to be allowed. 2. Heard learned Advocates for the parties. Perusal of the impugned order reveals that the (2) WP 5261.2008 respondents had filed a certified copy of the Aiyanama (Exh.133) before the trial Court. The respondents also filed a certain copy of the Wasiyatnama (Exh.195) alleging that the original document was before the Municipal Council and the copy was issued to them. They desire that both these copies shall be forwarded to the hand-writing expert for the purpose of opinion as to whether the signatures appearing at the bottom of the both the documents were that of Haji Abdul Karim S/o Haji Shaikh Mohammed. 3. Learned Civil Judge (S.D.) observed that the signature on the certified copy (Exh.133) was admittedly of said Haji Abdul Karim and it could be compared with the signature appearing at the bottom of the copy of the Wasiyatnama (will deed- Exh. 195). The trial Court came to the conclusion that though the original document of the will deed i.e. Wasiyatnama (Exh.195) was not placed on record, yet such a course was available for the purpose of comparison and opinion under section 45 of the Evidence Act. The trial Court observed that had the (3) WP 5261.2008 original document of Wasiyatnama been placed on record then it could be given presumptive value under section 90 of the Evidence Act being ancient document of more than 30 years. The only question is whether comparison of the signatures appearing on the xerox copies of the documents can be compared? Perusal of section 45 of the Evidence Act would make it amply clear that the opinion as to the identity of the hand-writing or finger impression can be sought. The illustration (c) at bottom of section 45 reads as follows:- “45. ... (c) The question is whether certain document was written by A. Another document is produced which is proved or admitted to have been written by A. The opinions of the experts on the question whether two documents were written by the same person or by different persons, are relevant.” 4. The illustration noted hereinabove, is in the context of the original documents and it would speak about relevancy of the opinion of the expert. Here the question is not of relevancy of the opinion (4) WP 5261.2008 of the expert. The real question involved is whether, in absence of original document, such opinion can be sought from an expert. The hand- writing of a person can be compared with admitted handwriting or the signature of such a person can be compared with admitted signature for the purpose of obtaining opinion of an expert. Still, however, opinion of handwriting expert cannot be sought on basis of the xerox copy of a document. It could be only in respect of a original document that the opinion may be sought. The xerox copy only reflects the photocopy of the signature or the handwriting which may be different on account of processing required to be undertaken for the purpose of preparing such copy. It is not uncommon that sometimes photocopies filed in the proceedings of the Court or proceedings before any other forum are illegible due to excessive blackening of certain portion. The defective copier is likely to prepare defective copy of the handwriting or signature. Needless to say, xerox signature could not have been ordered to be compared with another xerox signature. The impugned order, therefore, is arbitrary inasmuch (5) WP 5261.2008 as there appears non-application of judicial mind. It is made clear, however, that if the original Wasiyatnama is produced or called from the Municipal Council and is made available, the comparison of the signature of the executant may be sought on basis of any other admitted signature by filing afresh application. 5. In the result, the Petition is allowed. The impugned order is set aside. No costs. Sd/- [V. R. KINGAONKAR, J.] arp