Govardhan Das vs Ahmadi Begam

Heard the arguments of the parties.

This is Defendant''s appeal. The Plaintiff-Respondent filed a suit for the payment of Rs. 1500/, or in the alternative for the sale of the property and payment of the mortgage money. Plaintiff''s case was based upon two mortgage deeds; one is dated 1st Farwardi 1351 F. for the sum of Rs, 800/- and the other dated 17th Dai, 1353 F. for Rs. 250/-. In the written statement, the Defendant while admitting the mortgage deeds stated that he had paid on the 31st Farwardi 1353 F. Rs. 950/- towards the mortgage money in rcsoect of the two mortgage deeds and that he had to pay the balance of Rs. 100/-i''or. which a decree be passed and that he is prepared to pay that amount.

Ex. No. A. 1 was filed by the Defendant in support of his claim of payment of Rs. 950/-. This document was denied by the Plaintiff. The: trial Court after recording the evidence of the parties came to the conclusion that Ex. No. A. 1 was proved by evidence and therefore it passed a decree for Rs. 100/- in favour of the Plaintiff and in the alternative for the sale of the property if the Plaintiff (Defendant?) did not pay the money.

The first appellate Court disagreeing with the judgment of the trial Court decreed the Plaintiff''s claim in toto and was of the view that Ex. A. 1 was not proved by evidence. Against that judgment this appeal has been filed and the question for determination is, whether Ex, A. 1 has been proved or not.

Ordinarily the opinion of the trial Court which records the evidence and has the oppor- tunity to look to the demeanour and behaviour of the witness should be given preference to unless there are other impelling grounds for disagreeing with that view. Keeping this criterion in mind, we examined in detail the evidence in this case as also the judgment of the first appellate Court. We are of the opinion that the judgment of the trial Court is correct and should be upheld. The approach to the case by the first appellate Court is that the witnesses of the Plaintiff have not borne testimony to the fact that the Plaintiff who is a ''pardahnashin'' lady signed Ex A. 1 in their presence. It is clear that being a pardahnashin, lady the Defendants who were not persons before whom she would move without pardah could not swear to the fact that the document in question was signed by her. One fact which has got to be kept in mind in connection with this is that the whole transaction in question was entered into between the parties through one Mohd. Muniruddin who was the father at the Plaintiff The two mortgage deeds prove this fact. The mortgage money with respect to Ex 2 was paid before the Registrar by the said Muniruddin and the Registrar has written on the back of the mortgage deed that currency notes worth Rs. 800/- were paid in his presence to Defendant by Mohd. Muniruddin. The document has been executed in favour of the Plaintiff, Ahmedi Begum, and it is clear that the transaction was gone through the medium of Mohd. Muniruddin, her father.

The same thing has happened with regard to Ex. No. 3, the other mortgage deed, on the reverse of which also the Registrar has endorsed that Rs. 250/- worth of currency notes were paid by Muniruddin to the Defendant. Thus, it is clear that the whole transaction was entered into through the father of the Plaintiff. The lower appellate Court while discussing the evidence has not taken this important fact into consideration Another fact which is worth mentioning is that the suit in question was filed more than a year after the Ex. A. 1 was alleged to have been executed and Defendant by his notice dated 16th Mehir 1353 F., relied upon this fact of payment of Rs. 950/- and the existence of the document Ex. A. 1. The question therefore to be decided is whether the money was paid to the Plaintiff through Muniruddin and Syed Ismail, the husband of the Plaintiff.

Plaintiff (Defendant?) has produced five witnesses in support of Ex. A. 1 and the payment of Rs. 950/- mentioned therein. D. W. 1 is Govardhan Das. He is the Defendant himself. He states on oath that he paid the money at the house of Muniruddin through Syed Ismail to the Plaintiff, and the document Ex. A. 1 was written and sent inside for the signature and Syed Ismail brought out the same saying that it was signed by his wife, the Plaintiff. D. W. 2 is Shariful Hassan. He is the witness who has signed on Ex. A. 1 and gives evidence in detail and states that the Defendant paid Rs. 950/- in his presence to Syed Ismail who went inside and paid the money to his wife, the Plaintiff. It is true that he in cross-examination has stated that the Plaintiff is a pardahnashin woman and that the transaction was entered into through the vakil sahib, i.e. Mohd. Muniruddin. He also states that the money (obviously Rs. 950/-) was taken by Syed Ismail and that the same was taken to Ahmedi Begum and handed over to her. He states that Muniruddin had also gone inside when the document was signed. He also signed on the same. He identifies his own signature and also the document Ex. A. 1. A little difficulty has been created in this case on account of the opinion of the handwriting experts. The Hyderabad Government Expert has given the opinion that the thumb impression on Ex. A. 1 marked as A and B is such that it is not capable of, being identified; while the other Expert has stated that the signatures marked X and Y on Ex. A. J. cannot be said to tally in view of the reasoning given by him But the signatures X and Y are those of Syed Ismail and Mohd. Muniruddin.

It would have been better if the signatures of other witnesses also, viz. Shariful Hassan and Dawool Khan have also been sent to the opinion of the Expert. After looking at the signatures of the witnesses, Shariful Hassan on Ex. A 1 and the signature on the statement, it is difficult to say that they differ. That is a factor in favour of the case of the Defendant. That is also the case with regard to the signature of Dawood Khan on Ex. No. A. 1 and on the statement recorded by the Court, With regard to the opinion of the hand-writing expert we have to state that we cannot agree with the same in view of the evidence and facts of this case. In his statement on oath, the hand-writing expert Shri M. B. Dixit states that there is tremor in some letters in signature X as also in some letters in signature Y. He admits that the beginning word ''meem'' in Exs. A. 1, 3 and 4 is not different. He states that " ''ray'' of A. 3 is longer whereas in A. 1-4 it is straight and not so long." He states that he has not measured the difference in bends by Curvometre but by naked eye. Thus, it is clear that the above portion of the evidence does not, in any special manner, refer to the expert knowledge with regard to the hand-writing; and-examination by the naked eye of the above words in the signature is not different from that of a lay man. That is also the case when he states

the bend in word ''ray'' in ''Munir'' in signature A. 1-4 is much smaller than the bend in signature marked in the letter ''lam'' and ''yee� in signature X.

There is no reason therefore, why the sworn testimony of the witnesses Sheriful Hassan and Dawood Khan should not be given preference to this part of the opinion of the expert when those witnesses swear on oath that the signatures X and Y were written in their presence by the signatories.

It appears from the statement of the expert that he took assistance of one Mr. Joshi in carrying out his work of a hand-writing expert. He states that himself and Mr. Joshi examined some cases separately and discussed. He deposed that sometimes there used to be difference on some points. Thus, it is clear that experts differ in their opinion. He admits that to the naked eye, in the signatures given in B. 1 and B. 2 there is some difference due to bad ink of B. 2. It is to be remembered that the signatures in the above Exs. have been admitted to be of the self-same person. He admits in cross-examination that he has not examined the word ''hay'' but he states that there are some differences. Naturally he admits that he is not infallible. He further states that due to lapse of time there may be some differences but in this case, as the signatures purport to be of the same year, the differences have got to be accounted for on the other grounds.

With regard to the question of tremor in signatures we wish to suggest to the hand-writing experts whether besides the lapse of lime the question of the general health of the signatory at the time of signature can also be token into consideration or not. It is common knowledge that after a severe attack of Malaria or some virulent disease the patient may recover within a week and may have to sign papers and there may be tremor in his hand as compared to the signature which ho may have made a week or 10 days prior to the illness. We think that such facts also should be taken into consideration by the hand-writing experts before expressing their final opinion. The science of identifying signatures in writings has got to be developed in these directions if more accurate results are to be obtained and the question of tremor has got to be given importance and pertinency with regard to the signature on a disputed document. The expert admits that he does not know Urdu. Whether & how far an expert should know the language in which the signatures have been executed is discussed in some rulings; and in � Panchu Mondal v. Emperor 1 Cal LJ 385 (A) it was held that the evidence of the experts should be approached with considerable care and caution.

Mr. Charles Hardless in his book: "The Identification of Hand-writing and the Detection of Forgery" has stated that comparison by formation and noting the make of some special letters as guides is an unsatisfactory test. From the way in which the expert has given evidence in this case, it is clear that he has relied upon the make of special letters: ''meem ''hay ''ray'' while arriving at his conclusion. On the whole we do not find any reason to give preference to the opinion of the hand-writing expert on the sworn testimony of witnesses who have signed the document.

Ames (page 28.) has expressed the opinion that a fine or stub pen, haste or deliberation, good or bad health, sitting or standing, drunk or sober may radically change the appearance and quality of writing as may the condition of health or age change or impair the personal appearance of the writer. It has been held that at the most, expert opinion on hand-writing can raise a" suspicion as to the genuineness of a document but it is of no moment unless confirmed by other evidence. Looking at the other evidence in the case, we are satisfied that the suspicion created by the expert has no foundation. We therefore cannot accept the opinion of the hand-writing expert. See � Suresh v. Emperor 16 Cal WN 812 : 39 Cal 606 (B). u/s 67 of the Evidence Act, when a document is alleged to be in the hand-writing of the person, it must be proved to be so. In � Kasidanbi v. Gangulal AIR 1920 Nag 164(1) (C), it was held that it is not necessary that the attesting witness should have already seen the lady sign the document. In � Ashutosh Chattopadhyay and Others Vs. Nalinakshya Bandopadhyay and Others, it was held that the hand-writing may in addition to the usual methods be proved on circumstantial evidence as Section 67 i of the Evidence Act prescribes no particular kind of proof. Thus, in our opinion, the document Ex. A. 1 is proved by the witnesses who have borne testimony to the fact that the husband and father of the Plaintiff took the document inside, got her signature over it and assured to them that it was signed by the Plaintiff.

The lower appellate Court, it is to be remembered, did not allow the appeal on this ground; but on the grounds as mentioned above, that the Plaintiff did not sign the document in the presence of the witnesses. That was not possible because she was a pardanashin lady and the statements of her husband and her father that she had signed was enough for the witnesses who signed the document. The evidence of the hand-writing experts is recorded at the High Court at the instance of the Respondent. IN the particular circumstances of the case we are of the opinion that the evidence is not sufficient to establish the case of the Respondent.

Looking from the naked eye (as stated by the hand-writing experts) we do not find any difference between the signatures on Exs. A. 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30 though if we closely compare; as the hand-writing expert has stated there may be some differences in ''meem'' here and ''ray'' there; ''Wav'' here and ''wav'' there; and it is to be remembered that all these signatures have been of one and the same person. It is to be remembered that these Exs. A. 14 to A. 30 are receipts of rent signed by the said Muhammed Muniruddin and given to the tenant from time to time. This is further established by the fact that the whole transaction � not only of the mortgage but also collections of rents � was done by the father of the Plaintiff Muhammed Muniruddin and that the signature of Muniruddin was regarded as sufficient on behalf of the Plaintiff. That shows the important role played by Mohd. Muniruddin in the transaction in question.

Our-attention was drawn to Exs. 9 and 10 These are letters written by Muniruddin to Syed Ismail, the husband of the Plaintiff dated 10th Ardebehist 1353 F. and 24th Thir 1353 F In Ex. 9 it is mentioned that the defondant Govardhan Das is insisting for the return of his mortgage deed stating that the amount is ready and be accepted. The write of these two letters is the same Muniruddin. In Ex. 10 it is written that at the instance of Govardhan Das the writer of the letter (viz., Muniruddin) went to Govardhan Das and Govardhan Das stated that "you wait for a few days as the person who was given the money has gone to Nanded." The learned advocate for the Respondent argued that if money was paid as stated in Ex. A. in Farwardi prior to the writing of these letters whether Muniruddin would write like that. But it is to be noted that as stated in Ex. A. 1 Rs. 100 were still to be paid to the mortgagee and it has been mentioned in Ex. A. 1 within two months the balance of Rs. 100 will be paid and the document will be taken back. The learned advocate also argued that if a major portion of the mortgage money was paid why was the rent of Rs. 10 paid to the Respondent. This objection is unsound as it is mentioned in Ex. A. 1 itself that from the date of the writing of that Ex. only Re. 1/- per month will be paid as rent instead of Rs. 10/- per month until such time as the balance of Rs. 9/- is paid to the mortgagee. It, is further written in A, 1 that the document has been signed in the presence of the father and husband of the Plaintiff. It is clear from the above, that enough precautions were taken by the Defendant-Appellant when the money was paid to the Plaintiff and Ex. A. 1 was executed by the Plaintiff in his favour.

On a careful consideration of all the facts of the case, we are of the opinion that there is no reason to disagree with the judgment of the trial Court. The approach of the appellate Court was somewhat farfetched; as that court stated that there was no proof that the document Ex. A. 1 was signed in the presence of the Plaintiff''s witnesses. The Defendant and his witnesses do not state that the document A. 1 was signed in their presences by the Plaintiff and stated that they signed the same as the father and the husband of the Plaintiff stated that it was signed in their presence by the Plaintiff. We, therefore, set aside the judgment and decree of the first appellate Court and restore the judgment and decree of the trial Court. This appeal is allowed. We award the Appellant the costs of this appeal.