Ponnuswami Goundan and Another vs Kalyanasundara Ayyar and Others

Horace Owen Compton Beasley, Kt., C.J.—This is an appeal from a judgment of Anantakrishna Aiyar, J. in second appeal. The suit under

appeal was an ejectment suit. The plaintiff claimed to be landlord and owner of the suit property claiming that the defendants were mere tenants

from year to year. The defendants, however, claimed that they had a permanent right of occupancy and, therefore, could not be ejected. The

whole question turned on Exhibit M, the document under which the defendants occupied the premises. If it was a genuine document, then they had

no defence because the document establishes the fact that the tenancy was one from year to year. Its genuineness was denied by the defendants

who said that it was a forgery. No question in this case turns upon the identity of the person who is alleged to have executed the document. It is

conceded that it is supposed to refer to the 1st defendant. The 1st defendant was a marksman and besides the document writer there were two

other attesting witnesses. One of them was P. W. 10, whose evidence was discredited. He admitted his attestation but said that the document had

not been executed in his presence. This was in direct contradiction to the evidence which he had given in another case where he admitted that the

document was executed in his presence. Faced with this contradictory evidence, the evidence of that witness was not relied upon and of course

quite rightly. Of the other two attesting witnesses one of them was dead and the other one could not be produced. Therefore, secondary evidence

could be admitted with regard to that attestation and admittedly P. W. 3 who was called proved that the signature of one of the attesting witnesses

was his. Both the Lower Courts and the second appellate Court accepted that evidence as proof of the execution of the document by the 1st

defendant. In Second Appeal and here it was contended that by reason of Section 67 of the Evidence Act proof was insufficient to establish the

execution of the document by the 1st defendant. Section 67 of the Indian Evidence Act reads as follows:

If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the 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.

It is contended that that section relates only to the proof of the handwriting of the executant and not to the proof of the signature of an attesting

witness. It is quite true that it does not mention the signatures of attesting witnesses but to accept the contention put forward by the appellants that

the section has that restricted meaning would be to override the provisions of the Evidence Act with regard to the reception of secondary evidence.

All that that section requires is that the writing or the signature of the executant should be proved to be his writing or his signature. In the case of a

signature how is that to be proved? It is to be proved either by means of a witness who saw the person write and was present necessarily when he

did write or if such a person is not available--I am talking of course of the case where the executant denies execution of the document--by calling

somebody who is familiar with the handwriting of the executant and who proves that it is his handwriting. In this case the latter alternative cannot be

considered* because the 1st defendant was a marksman and therefore such proof would be dependant upon the proof of a witness who actually

saw him make his mark. Such a witness cannot be produced for the reasons already stated. Such witnesses would be the attesting witnesses; and

they would be the best witnesses as their presence is guaranteed by their signatures. In this case neither of the remaining attesting witnesses can be

called and secondary evidence with regard to their attestation obviously is admissible. What is the secondary evidence? The evidence of somebody

who either saw them attest or is familiar with their signatures. We have that evidence here because, as already stated, there is a witness whose

evidence has been believed. He states that the signature of one of the attesting witnesses is his signature. What follows from that ? It follows that it

is proved that that attesting witness attested the document. What follows from that ? A passage from Mr. Starkie in his Law of Evidence, 4th Edn.,

p. 519, is set out in the judgment of our learned brother as follows:

The signature of the attesting witness when proved is evidence of everything upon the face of the instrument, since it is to be presumed that the

witness would not have subscribed his name in attestation of that which did not take place.

Therefore the signature of the attesting witness having been proved is evidence of everything on the face of the document and that he saw the

executant make his mark. The argument put forward before us by the appellants directly gives the go-by to this very obvious inference which in the

English law arises and I see no reason whatever for excluding that inference from the Indian law of evidence. It gives the go-by entirely to the

provision of the Evidence Act which permits secondary evidence to be given in the absence of witnesses who are either dead or cannot be brought

to Court. Section 67 of the Indian Evidence Act requires nothing more than proof of the handwriting or signature of the writer of the document or

its executant. The section does not specify or limit the kind of evidence required. It clearly only requires proof by admissible evidence."" For these

reasons, our learned brother''s judgment in second appeal was right and this Letters Patent Appeal must be dismissed with costs.

Butler, J.

I agree.