Section 72 BSA

Source: Supreme Court

Why in News?

A bench of Justice Ahsanuddin Amanullah and Justice Manmohan of the Supreme Court decided Gopal Pathak v. Nitin alias Pappu & Anr. (2026). The Court held that under Section 72 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), a court must compare a disputed signature or writing and reach its own conclusion. It cannot call for expert evidence routinely merely because it is not an expert. The Court set aside the High Court's order directing a handwriting expert's examination and restored the trial court's order. 

What was the Background of Gopal Pathak v. Nitin alias Pappu & Anr. (2026) Case? 

• The dispute concerned the genuineness of a Will, with the signatures on it being questioned. 
• The respondent filed an application under Section 39 of the BSA seeking the opinion of a handwriting expert. 
• The trial court declined the request to call for expert evidence. 
• The Madhya Pradesh High Court (Gwalior Bench) reversed the trial court's decision. It allowed the application, holding that expert evidence was "essential" to determine the genuineness of the Will since the court itself is not an expert. 
• The appellant challenged this order before the Supreme Court. He argued that:  
  • The power to call for expert evidence cannot be used routinely when the court can itself compare signatures under Section 72 of the BSA. 
  • The respondent had admitted in his Section 39 application that his father was a tenant, so he could not simultaneously dispute the genuineness of the Will by questioning the signatures. 
• The respondent defended the High Court's order, relying on Thiruvengada Pillai v. Navaneethammal & Anr. (2008). He contended that where handwriting, signature or finger impression is disputed, a finding by the court alone would be hazardous and risky, so the matter should go to an expert. 
• The question before the Court was whether expert opinion is essential in every case involving a disputed signature. 

What were the Court's Observations? 

On the court's duty to compare: 

• It is the duty of the court to compare the signature or writing and come to its own conclusion. 
• The court cannot avoid this duty by stating that it is not an expert. 
• The evidence of an expert is only an opinion and is not binding on the court. 

On calling for expert evidence: 

• It is impermissible to send every case involving a disputed handwriting, signature or finger impression for expert examination when the court can compare it and decide. 
• Expert evidence cannot be called for routinely. 
• The court has full discretion to seek expert opinion where it has any doubt, or where the writing or impression is smudgy, vague or very light. 

On the High Court's finding: 

• The High Court's finding that expert opinion under Section 39 of the BSA was essential for determining the genuineness of the Will was untenable in law. 
• The comparison of signatures could have been done by the court itself under Section 72 of the BSA. 

On reliance on Thiruvengada Pillai v. Navaneethammal & Anr. (2008): 

• The decision cannot be read to mean that it is essential to examine an expert witness in every case involving a disputed handwriting, signature or finger impression. 

Conclusion: 

• The Court allowed the appeal, set aside the High Court's order calling for a handwriting expert, and restored the trial court's order declining the request for expert evidence.

What is Section 72 of the BSA? 

About: 

• Section 72 of the Bharatiya Sakshya Adhiniyam, 2023 deals with the comparison of a signature, writing or seal with others admitted or proved. 
• It corresponds to Section 73 of the Indian Evidence Act, 1872. 
• It empowers the court itself to compare disputed writing with admitted or proved specimens, without depending on an expert. 

Provisions: 

• Section 72(1): To ascertain whether a signature, writing or seal belongs to the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the court to be that person's may be compared with the one to be proved. This is permitted even if the admitted specimen has not been produced or proved for any other purpose. 
• Section 72(2): The court may direct any person present in court to write any words or figures, so that the court can compare them with words or figures alleged to have been written by that person. 
• Section 72(3): The section applies, with necessary modifications, to finger impressions as well. 

Interplay with Section 39 of the BSA: 

• Section 39 of the BSA (corresponding to Section 45 of the Indian Evidence Act, 1872) makes the opinion of experts relevant, including on questions of identity of handwriting and finger impressions. 
• Expert opinion under Section 39 is only a relevant fact and an aid to the court. It is not conclusive or binding. 
• Section 72 places the primary responsibility of comparison on the court. Recourse to Section 39 is discretionary and is meant for cases where the court has genuine doubt or the material is unclear.