§ SECTION 41 · BSA 2023 · CHAPTER II — RELEVANCY OF FACTS

Opinion as to handwriting and signature, when relevant

When the question is whose hand a document is in, the opinion of a person acquainted with that handwriting is relevant — and for an electronic signature, the opinion of the Certifying Authority that issued the certificate.

How to read Section 41

Familiar with the hand — or the Certifying Authority.

Handwriting

The opinion of a person acquainted with the handwriting — a lay witness, not a § 39 expert.

“Acquainted”

Seen him write, exchanged answering letters, or habitually handled his documents in business.

E-signature

The opinion of the Certifying Authority that issued the Electronic Signature Certificate.

The bare Act

The section in its own words — colour-keyed by what each phrase does.

Section 41 · verbatim

(1) When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact.

Explanation.—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.

Illustration

The question is, whether a given letter is in the handwriting of A, a merchant in Itanagar. B is a merchant in Bengaluru, who has written letters addressed to A and received letters purporting to be written by him. C, is B’s clerk whose duty it was to examine and file B’s correspondence. D is B’s broker, to whom B habitually submitted the letters purporting to be written by A for the purpose of advising him thereon. The opinions of B, C and D on the question whether the letter is in the handwriting of A are relevant, though neither B, C nor D ever saw A write.

(2) When the Court has to form an opinion as to the electronic signature of any person, the opinion of the Certifying Authority which has issued the Electronic Signature Certificate is a relevant fact.

In short: you do not need a handwriting expert to say whose writing a document is — anyone who genuinely knows the hand may give an opinion. The Explanation fixes how that familiarity may arise. For a modern electronic signature, the trusted opiner is the Certifying Authority that issued the certificate.

→ This carries forward IEA 1872 §§ 47 and 47A — lay handwriting opinion, and the electronic-signature counterpart.

Glossary

acquainted with the handwriting

Genuinely familiar with a person’s writing — by one of the three routes in the Explanation.

seen that person write

Route 1 — direct familiarity from watching him write.

in answer to documents

Route 2 — you sent letters and got back writing purporting to be his.

habitually submitted

Route 3 — his writing routinely passed through your hands in business.

electronic signature

A digital signature; its genuineness is opined on by the Certifying Authority.

Certifying Authority

The body that issued the person’s Electronic Signature Certificate — the relevant opiner under sub-section (2).

The picture

Whose hand — or whose e-signature?

The section, part by part

Tap a part — the picture-story tells it first; the word-by-word text and example follow.

The ruleWhen ‘acquainted’?Electronic signature

the ruleThe opinion of someone who knows the hand

In one lineWhen the question is who wrote or signed a document, the opinion of a person acquainted with that person’s handwriting — that it is, or is not, his — is relevant.

When the Court has to form an opinion as to the person by whom any document was written or signed,the trigger · who wrote it?when the Court must decide who wrote or signed a document…

the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signedwho · someone who knows the hand…the opinion of anyone acquainted with that person’s handwriting…

that it was or was not written or signed by that person,was / was not his hand…that it was, or was not, written or signed by him…

is a relevant fact.→ relevant…is a relevant fact.

ExampleA cheque signature is disputed. A’s bank clerk, who has handled A’s signatures for years, may opine whether the signature is A’s — without being a handwriting expert.

✗ Not thisThis is not the § 39 handwriting expert — it is a lay witness merely familiar with the person’s hand. And “acquainted” is a defined term (see the Explanation): a casual glance will not do.

when ‘acquainted’?Three ways to know the hand

In one lineYou are “acquainted” with a person’s handwriting in one of three ways — you have seen him write, exchanged answering letters, or habitually handled his documents at work.

A person is said to be acquainted with the handwriting of another person“acquainted” meansyou are acquainted with someone’s handwriting…

when he has seen that person write,route 1 · seen him write…when you have seen him 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,route 2 · answering correspondence…or when you received documents purporting to be his, in answer to your own letters to him…

or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him.route 3 · habitually handled at work…or when, in business, his documents were habitually submitted to you.

ExampleThe illustration: is a letter A’s? B exchanged letters with A (route 2); C, B’s clerk, filed that correspondence; D, B’s broker, had A’s letters habitually submitted to him (route 3). B, C and D may all opine — though none ever saw A write.

✗ Not thisIt is the source of familiarity that counts — a stranger who never saw A write and never handled his letters is not “acquainted”. In the illustration B, C and D qualify by routes 2 and 3, not route 1.

electronic signatureThe digital counterpart

In one lineFor an electronic signature, the relevant opinion comes from the Certifying Authority that issued the person’s Electronic Signature Certificate.

When the Court has to form an opinion as to the electronic signature of any person,the trigger · an e-signaturewhen the Court must decide about a person’s electronic signature…

the opinion of the Certifying Authority which has issued the Electronic Signature Certificate is a relevant fact.→ the Certifying Authority…the opinion of the Certifying Authority that issued the Electronic Signature Certificate is a relevant fact.

ExampleWhether a digitally-signed contract carries A’s valid electronic signature — the Certifying Authority that issued A’s Electronic Signature Certificate can give a relevant opinion.

✗ Not thisThe digital counterpart is not “someone acquainted with the hand” (there is no hand) — it is the Certifying Authority, whose issuance of the certificate gives it the standing to opine.

Connected provisions

§ 39

IEA 1872, §§ 47 & 47A

Carried forward — lay handwriting opinion, plus the electronic-signature Certifying Authority.

Bharatiya Sakshya Adhiniyam, 2023 — Section 41: Opinion as to handwriting and signature