Other Opinion Evidence — Handwriting, Digital Signature, Custom, Usages, Grounds (ss. 40–43, 45) — BSA (Law of Evidence) Notes

Other Opinion Evidence — Handwriting, Digital Signature, Custom, Usages, Grounds (ss. 40–43, 45)

Section 39 gives us the expert. But the Act also lets ordinary people give an opinion on a few things they are peculiarly placed to know — the clerk who has handled a man’s letters for years can say whose hand a note is in, a villager can speak to a local custom. These are the “non-expert opinion” sections, and they complete the picture.

After the expert (s. 39) and the relationship-by-conduct rule (s. 44), the Act admits opinion evidence on a short, closed list of further matters. Take each section in a line.

s. 40 [IEA s. 46] — facts bearing on experts’ opinions. Facts which, though otherwise irrelevant, support or are inconsistent with the opinion of an expert become relevant when such an opinion is itself relevant. It lets a party test or reinforce an expert’s conclusion.
s. 41(1) [IEA s. 47] — opinion as to handwriting. When the court must decide who wrote or signed a document, the opinion of any person acquainted with that handwriting is relevant. The Explanation tells you how one becomes “acquainted”: by having seen the person write, by having received documents purporting to be in his hand in the course of correspondence, or by having such documents habitually submitted to him in the ordinary course of business.
s. 41(2) [IEA s. 47A] — opinion as to an electronic/digital signature. When the court must form an opinion on a person’s electronic signature, the opinion of the Certifying Authority which issued the Electronic Signature Certificate is a relevant fact — the digital-age counterpart of the handwriting rule.
s. 42 [IEA s. 48] — general custom or right. When the existence of a general custom or right is in question, the opinions of persons likely to know of its existence are relevant. (“General” here includes a custom common to a considerable class of people.)
s. 43 [IEA s. 49] — usages, tenets, etc. Opinions on the usages and tenets of any body of persons, the constitution and government of any religious or charitable foundation, or the meaning of words and terms used in particular districts or by particular classes, are relevant when the court has to form an opinion on such matters.
s. 45 [IEA s. 51] — grounds of opinion. Whenever the opinion of any person is relevant, the grounds on which his opinion is based are also relevant. This is the section that lets an expert (or any opinion-witness) explain why he holds his view — and, as Topic 9 stressed, it is the reasons that give the opinion its weight.

🧩 WORKED EXAMPLE — who can speak to the handwriting?

Facts. The question is whether a letter is in A’s hand. A’s long-time clerk, whose job was to file A’s correspondence, is called to give his opinion, though he never actually watched A write.

Rule. Under s. 41(1), a person “acquainted with the handwriting” may give an opinion; the Explanation includes one to whom the person’s documents were habitually submitted in the ordinary course of business.

Apply. The clerk habitually handled A’s correspondence in the ordinary course of business, so he is “acquainted” with A’s handwriting within the Explanation — even without having seen A write.

Conclusion. The clerk’s opinion on the handwriting is relevant under s. 41(1); its weight is for the court, and he may be asked the grounds under s. 45.

Section 45, BSA 2023: “Whenever the opinion of any living person is relevant, the grounds on which such opinion is based are also relevant.”

In Simple Terms: Any time the law lets a person’s opinion in, it also lets in the reasons behind that opinion — because an opinion is only as good as the grounds it stands on.

flowchart TD
    ROOT["Non-expert opinion evidence"]:::root
    ROOT --> A["s. 40 — facts bearing on an expert's opinion"]:::leaf
    ROOT --> B["s. 41(1) — handwriting (person acquainted)"]:::leaf
    ROOT --> C["s. 41(2) — e-signature (Certifying Authority)"]:::leaf
    ROOT --> D["s. 42 — general custom or right"]:::leaf
    ROOT --> E["s. 43 — usages, tenets, word-meanings"]:::leaf
    ROOT --> F["s. 45 — grounds of the opinion"]:::leaf
    classDef root fill:#FFF8DC,stroke:#000,stroke-width:1px,color:#000;
    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;
    linkStyle default stroke:#888,stroke-width:1px;

Case Laws

Fakhruddin vs State of Madhya Pradesh (1967) — handwriting may be proved by an acquainted witness (s. 47 IEA / s. 41), by an expert (s. 45 IEA / s. 39), or by the court’s own comparison (s. 73 IEA / s. 72); each mode has its cautions.
State of Maharashtra vs Damu (2000) — the grounds of an opinion must be shown; an opinion without stated grounds carries little weight (s. 51 IEA / s. 45).

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