Vazir Begum Ammal and Another vs Seth Tholaram

Subrahmanyam, J.—The point for determination in this appeal is whether the promissory note, Exhibit A-1, was executed by defendants 1

and 2, and, if it was, whether it is not supported by consideration. The learned Subordinate Judge found that the promissory note was executed by

defendants 1 and 2 and that it was supported by consideration. The defendants appeal from that judgment.

The promissory note purports to have been executed by defendants 1 and 2 in favour of the plaintiff. The second defendant is the wife of

defendant 1. The promissory note is in a printed form. The evidence of P.Ws. regarding the execution of the promissory note is this. Defendant 1

filled up the blanks in the printed form. The printed form as filled up by defendant 1 was the promissory note for Rs. 6,200 payable with interest at

12 per cent, per annum for value received in cash. It contains the words, ""We promise"". The agreement between defendant 1 and P.W. 1 was that

the promissory note should be executed by both the defendants. P.Ws. 1 and 2 and defendant 1 were sitting in the payal of the house of the

defendants. Defendant after having filled up the blanks in the form, took the promissory note inside, saying that he would obtain his wife''s

signature. She is a purdhanashin lady whom the plaintiff should not see. Defendant i came out with her thumb-impression and her signature in Urdu.

He told the P.Ws. that the thumb-impression and signature had been affixed by his wife. He made an endorsement to that effect in the left-hand

margin of the promissory note and signed that endorsement. After signing that endorsement, he affixed his own signature to the promissory note

below the signature and thumb-impression which, he said, were his wife''s. P.W. 1 accepted the promissory note from defendant .

Defendant 1 denied that his wife had affixed her thumb-impression or made her signature. His evidence is this : P.W. 1 was not present at the

time of the execution of the promissory note by defendant 1. P.W. 2 took the promissory note to defendant 1. P.W. 2 wanted that the promissory

note should be executed by both the defendants. The first defendant told P.W. 2 that defendant 2 would not agree to execute the promissory note;

but P.W. 2 said that defendant 1 might make an endorsement on the margin that the thumb-impression and the signature were those of his wife and

sign the endorsement and also the promissory note and that P.W. 2 himself would obtain the second defendant''s thumb-impression and signature.

On the statement being made by P.W. 2 defendant 1 wrote the endorsement which appears in the margin and affixed his signature to the

endorsement and to the promissory note.

It is plain that the evidence of defendant 1 is false. Neither P.W. 1 nor P.W. 2 was interested in taking the promissory note as if executed by

defendant 2 if she was not willing to execute it. Defendant 1 himself would not have left the promissory note in the hands of P.W. 2 or P.W. 1,

knowing that they would make an attempt to forge a signature or have a thumb-impression affixed as the signature or thumb-impression of his wife.

I agree with the learned Subordinate Judge in his appreciation of the evidence on this point. I find that the evidence of the P.Ws. is true and that the

facts in relation to the execution of the promissory note are that defendant 1 promised that the promissory note would be executed by him and his

wife, that he wrote out the promissory note, filling up the blanks in the printed form, and took the promissory note inside his house for his wife to

sign it, that he brought the promissory note out with a thumb-impression and signature in Urdu, that he told P.Ws. 1 and 2 that the thumb-

impression and signature were his wife''s and made an endorsement to that effect in the promissory note, and that, thereafter, he himself put his

signature to the promissory note below the thumb-impression and signature which were represented by him to be his wife''s. Defendant 1''S

signature to the promissory note is admitted by him. The question is whether the execution of the promissory not by defendant 2 has been proved.

There is no direct evidence that defendant 2 affixed her thumb-impression or that she signed the promissory note. If the evidence of the P.Ws.

that defendant 1 told them that the thumb-impression and the signature appearing in the promissory note were his wife''s is not admissible on the

ground that it is hearsay then, there is very little evidence in support of the learned Subordinate Judge''s finding that the second defendant executed

the promissory note. I have given reasons for the view that I believe the P.Ws. when they say that defendant 1 told them before he himself signed

the promissory note that the signature and thumb-impression appearing in the promissory note above his signature had been made by his wife. The

question is whether defendant i''s statement that the signature and thumb-impression in the promissory note had been made by his wife gets

excluded under the rule of exclusion of hearsay evidence.

The rule of exclusion of hearsay evidence has an exception enacted in Section 6 of the Evidence Act. Section 6 states:

Facts, which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether, they occurred

at the same time and place, or at different times and places.

Illustration (a) to that section is this:

A is accused of the murder of B by beating him. Whatever was said or done by A or B or the-by-standers at the beating, or so shortly before or

after it as to form part of the transaction is a. relevant fact.

In the present case, the fact in issue is whether defendant 2 executed the promissory-note. The facts which are proved are that defendant 1 went

inside the house with, the promissory note drawn up, but unsigned, and came out with the document bearing a thumb-impression and signature and

said that the thumb-impression and signature had been affixed by his wife. He made an endorsement to that effect on the promissory note. The fact

in issue, namely, whether she signed the promissory note inside the house is so connected with the acts of defendant 1 getting inside the house,,

coming outside the house to the verandah with the thumb-impression and signature and then stating that the thumb-impression and signature were

his wife''s as to render all of them parts of the same transaction. Under the rule of res gestae enacted in Section 6 of the Evidence Act, statements

which form part of the same transaction become an exception to the rule of exclusion of hearsay evidence. The statement made by defendant 1 that

the thumb-impression and the signature in Urdu appearing in Exhibit A-1 were his wife''s is admissible in evidence. Since that statement is

admissible in evidence, it forms circumstantial evidence tending to prove that defendant 2 executed the promissory note.

The next question is whether defendant 1''S statement made to P.Ws. 1 and 2 that his wife had made the thumb-impression and signature should

be accepted. When defendant 1 brought the promissory note outisde, he clearly knew who had made the signature and affixed the thumb-

impression. He does not say that any other person made the signature and affixed the thumb-impression. The circumstantial evidence thus proves

beyond reasonable doubt that the signature and thumb-impression appearing in Exhibit A-1 are the signature and thumb-impression of defandant 1,

that is, that she executed the document.

In support of his conclusion that the signature appearing in Exhibit A-1 is that of defendant 2, the learned Subordinate Judge relied on his own

opinion formed as a result of comparing that signature with the signature appearing in Exhibit A-6, which is admitted to be hers. On the question

whether the opinion formed by a Judge regarding the execution of a document by a person, merely on a comparison of the signatures appearing in

the document, which is said to be his, with other signatures which are admitted to be his, is by itself evidence adequate for resting a finding, the

view taken by this Court in Pasupuleti Venkamma v. Shaik Hamid (1912) 14 I.C. 741 and G. Narasimha Rao Vs. Someswar Joshi, is not in

accord with the observations made by a Bench of the Calcutta High Court in Fazaladdin Mandal Vs. Panchanan Das, . The point relates to the use

that can be made of the opinion formed by a Judge on a comparison of signatures made u/s 73 of the Evidence Act. Where a document is alleged

by one party to bear the signature of a person, say, X, and X denies that the document was signed by him, then, the opinion of an expert on the

question whether the disputed signature is that of X, given on a comparison of that signature with signatures of X, which are admitted or proved, is

a relevant fact u/s 45 of the Evidence Act. Similarly the opinion of persons who are acquainted with X''s signature, given after a comparison of the

disputed signature with admitted or proved signatures, is relevant u/s 47. In these sections, the Legislature expressly states that the opinions are

themselves relevant facts. u/s 73, the Court is authorised to compare the disputed signature with signatures which are admitted or proved in order

to ascertain whether the disputed signature was made by the person, by whom it is alleged to have been made. Where the Court has before it

opinions which are declared relevant facts u/s 45 or Section 47 of the Evidence Act, the Court may base its conclusion in a proper case solely on

such opinions and decide on the basis of these opinions whether the disputed signature was made by the person by whom it purports to have been

made. But, where the Court bases its conclusion solely on its own opinion arrived at as a result of comparison of the disputed signature with

admitted or proved signatures, the decisions of this Court in the cases referred to above, - in each case, by a Judge sitting singly - are to the effect

that the Court''s judgment cannot be called in question on the ground that it is not based on evidence. The observations made by the Calcutta High

Court on that point are these:

It is true, if there was no evidence before the Court as regards the genuineness of the signature, the Court could not, in law, rely on its own

examination of the signature to supply the evidence because-the learned Judge could not treat himself as an expert. I am unable to find anything in

principle or authority which bars the Judge of facts from using his own eyes and looking at the admitted signature along with the disputed signature

in deciding whether the evidence that has been given as regards the genuineness of the document should be believed or not.

If those observations correctly state the law on that point it would follow that, where there is no evidence on the question of the genuineness of the

disputed signature in the shape either of direct or circumstantial evidence or of opinions relevant u/s 45 or Section 47, the Court''s own opinion

arrived at as a result of comparison of signature authorised by Section 73 of the Evidence Act would not be adequate for resting a finding on. If

there were not in this case circumstantial evidence proving that the second defendant''s signature and thumb-impression described in the

promissory note as hers were in fact made by her, it might have been necessary to refer to a Bench for authoritative decision the question whether,

in a case where there is no other evidence, direct or circumstantial, and no opinion relevant u/s 45, or Section 47 regarding the genuineness of a

disputed signature, the Court''s own opinion on a comparison of signatures made u/s 73 of the Evidence Act would be adequate for resting a

finding on the genuineness of the disputed signature. In this case, we have circumstantial evidence, which, as I have said, is adequate to prove that

the second defendant executed the promissory note. The conclusion based on that evidence gets reinforced by the opinion formed on a

comparison of signatures u/s 73 of the Evidence Act. As to the result of comparison of the signatures, I agree with the learned Subordinate Judge

in his opinion that the signature in Exhibit A-1 appears to be the signature of the person who made the admitted signature in Exhibit A-6, namely,

defendant 2.

I agree with the learned Subordinate Judge and find that the promissory note was executed by defendant 2 as well as by defendant 1

The next question is whether the promissory note is not supported by consideration. On that question, the P.Ws. state that the plaintiff paid Rs.

5,200-to defendant 1. The need for the money and the purpose to which he put the money is proved by the evidence, which has been discussed in

detail by the learned Subordinate Judge. It is unnecessary that I repeat what he has said. I accept the evidence of the P.Ws. and find that the suit

promissory note was supported by consideration.

The appeal is dismissed with costs.