K. Kuppuswami Pillai vs K. Natarajan and another

Mishra, J.—The plaintiff-first-respondent''s suit to recover a sum of Rs. 15,396/- with interest has been decreed by the trial court and

affirmed by a learned single judge of this Court in appeal. The first-defendant-judgment debtor has preferred this appeal on various grounds.

According to the case of the plaintiff, the two defendants in the suit, who were related to him, borrowed on 20.9.1975, a sum of Rs. 10,000/- by

way of hand loan for the purpose of their business carried on under the name and style of M/s. Raju Engineering Works in Pappanaickan palayam.

The defendants agreed to repay the same with interest thereon at 17 per cent per annum, but defaulted. They also borrowed another sum of Rs.

2,000/- from the plaintiff on 10.10.1975, for which the plaintiff reserved his right to take a separate suit. Defendants, however, denied the plaintiffs

claim that they borrowed a sum of Rs. 10,000/- promising to repay the same wit interest thereon at 10 per cent per annum. According to the

defendants, the first-defendant borrowed only once from the plaintiff a sum of Rs.l0/XX)/- on 29.12.1971 under a promissory note and by deposit

of title deeds in respect of his house property. Towards the said loan, the first defendant paid a sum of Rs. 2,800 between 1971 and 1973. These

payments were endorsed in the pocket note-book of the first- defendant. In 1974, a further sum of Rs. 1,000/- was paid and endorsed on the

promissory-note In 1975, a cheque for Rs. 2,000/- was issued to the plaintiff by the second-defendant. But the plaintiff did not encase the same,

nor returned the cheque. A sum of Rs. 2,000/- was paid in cash to the plaintiff and another sum of Rs. 1,000/- was paid subsequently. A further

sum of Rs. 1,000/- was also paid in 1977 and endorsed on the promissory- note. Excepting the said debt incurred on 29.12.1971, the defendants

had not incurred any loan from the plaintiff. The defendants also denied that they had borrowed another sum of Rs. 2,000/- on 10.10.1975.

It is indeed a case in which while there is an acknowledgment of a debt of Rs. 10,000/- incurred on 29.12.1971 under a promissory-note and

by deposit of title deeds in respect of a house property and discharged in part by the defendants, so far as the alleged loan dated 20.9.1977is

concerned,"" there is a categorical denial by the defendants. In the situation as above, in the trial of the issue whether the defendants borrowed on

20.9.1975 a sum of Rs. 10,000 the burden of proof lay upon the plaintiff. A reference to the facts of the case in the judgment of the court below

shows that the plaintiff admitted to have advanced a sum of Rs. 10,000/- on 29.12.1971 to the first- defendant under a promissory-note and also

taken his document of title as security and that several payments were made towards the said promissory-note by the defendants. On that basis,

however, when it was urged on behalf of the defendants that when the plaintiff had chosen to lend a sum of Rs. 10,000/- only under a promissory-

note after taking security by way of deposit of title deeds, it was difficult it to believe that the plaintiff had orally lent a sum of Rs. 10,000/- four

years later. The learned judge referred to a letter purported to be in the letter head of the defendants'' company, allegedly signed by the first-

defendant for the said company, viz., Ex. P4. This letter, if true, shows an acknowledgment of the debts incurred by the first defendant and his wife

the second defendant on 20.9.1971 as well as the debt of Rs. 2,000/- on 10.10.1975, with which we are not concerned. The letter, it appears,

had been put to the first-defendant during the cross-examination, when he was in the witness box and he admitted his signature in this document.

There had, however, been a re-examination, in which re-examination, the first defendant denied his signature. It is, however, found that the

contents of the document (Ex.A4) are not in the name of first-defendant. There is no evidence to show that the first-defendant ever admitted the

contents of the said document or there were/are circumstances to establish that the contents were true and genuine. We do not propose to attach

any value to the subsequent denial of the signature in Ex. A4 by the first-defendant But, as the law of the land goes, we cannot, in the absence of

proper proof, accept that the contents of Ex. A4 have been proved to be true and genuine by any evidence except the document and the proof of

signature coming from the mouth of the first-defendant when the document was put to him in the cross-examination. There is no material at all to

establish that there has been any proof of the contents of the document brought on the record on behalf of the plaintiff- first-respondent. It is well

settled that the proof of the genuineness of a document is by proof of the authorship of the document is the proof of a fact like that of any other

fact. Courts in India have, for the said reason, allowed evidence relating to the proof of the genuineness of a document to be either direct or

circumstantial. Such evidence may consist of direct evidence of a person who saw the document being written or the signature being affixed or may

be by proof of the hand-writing of the contents or of the signature by one of the modes provided in Ss. 5 and 47 of the Indian Evidence Act. Such

evidence may also be internal evidence, afforded by the contents of the document.

In Mobarik Ali Ahmed Vs. The State of Bombay, the Supreme Court considered the issue whether the internal evidence afforded by the

contents of the document amounted to the proof of the authorship of the document and the Supreme Court held that the evidence of the recipient

of the document would be material to establish the authorship of the document. In the light of the above, a Division Bench of the Bombay High

Court in Mohammed Yusuf and Another Vs. D. and Another, , has fully analysed the law and stated as follows:-

The reason on which he decision of Bhagwati, J. is based is not far to seek. The evidence of the contents contained in the document is hearsay

evidence unless the writer thereof is examined before the court, We, therefore, hold that the attempt to prove the contents of the document by

proving the signature or the handwriting of the author thereof is to set at naught the well recognised rule in that hearsay evidence can not Be

admitted. This question has been discussed by Halsbury at Paragraph 533 at page 294 (Halsbur''s Law of England, 3rd Edition, Volume 15.

Under the heading ''Hearsay'', says Halsbury:

Statements in documents may also be hearsay. So if he had taken counsel''s opinion before acting, the contents of the opinion would be admissible

for the same purpose, but not to prove the truth of any statement of fact therein In

Paragraph (534) Halsbury has discussed the reasons for rejection of hearsay evidence and says:

The reasons advanced for the rejection of hearsay are numerous, among them being the irresponsibility of the original declarant, the depreciation of

truth in the process of repetition, the opportunities for fraud which its admission would offer, and the waste of time involved in listening to idle

rumor. The two principal objections, however, appear to be the lack of an oath administered to the originator of the statement, and the absence of

opportunity to cross-examine him. The Advocate General drew our attention to a decision of House of Lords in Maria Slurla v. Fllippo Freccla

1879 5 A.C.623. In that case, the report of a Committee appointed by a public department in a foreign State was admitted in evidence as a public

document. It was, however, held that it was not admissible as evidence of all the facts stated therein. In that case, the facts were: The document in

question, a report of certain persons called the Ginuradi Marina at Genoa, was sought to be put in evidence for the purpose of proving that person

who was formerly Consul for the Genoese Republic in London, and the succession to whose daughter, Mrs. Brown was in question, was a native

of Quarto near Genoa and at the time that report was made, aged about forty-five years. The document was tendered for that purpose and for that

purpose only.

It was conceded that-----------document was Abreo

the report was an authentic public document of the Genoese Government. The statements, however, contained in the report were not based on the

evidence of any of the relatives of the Consul at Genoa! The information contained therein did not appear to have been received from any member

of Mangini''s family. One of the well recognized exceptions under the English Law of Evidence to the reception of hearsay evidence is the evidence

relating to pedigree. The only question which Their Lordships of the House of Lords were considering was, whether the contents of the report fell

within the purview f the above exception and Their Lordships held that it did not, because the statements contained in the report were not based on

the evidence given before the dispute started by any of the members of the deceased''s family. We are not concerned with that part of the decision

of the House of Lords in the present case. The point to be noted is that the statements contained in the reports were treated as hearsay and since

they did not fall within the Well recognized exceptions, they were excluded from evidence. To conclude this part of the discussion, we hold, in the

first place, that what has been formally proved is the signature of Abreo and not the writing of the body of the document at Ex. 28 and secondly,

that even if the entire document is held formally proved, that does not amount to a proof of the truth of the contents of the document. The only

person competent to give evidence on the truthfulness of the contents of the document was Abreo.

A glance at the language used in S. 67 of the Indian Evidence Act also supports the view that we take that the proof of the document by proving

the signature of the first-defendant herein, cannot extend to the proof of the genuineness of the contents thereof, for, the contents of Ex. A4 are in

the hand- writing of somebody else. S. 67 reads as follows:-

Proof of signature and handwriting of person alleged to have signed or written document produced: 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

If a document is alleged to be signed by any person, the signature is proved by examining that person. If a document is alleged to have been written

wholly or in part by a person, such handwriting or so much of the document, as is alleged to be in that person''s handwriting is proved by examining

that person. In a case like one in hand, when signature is found to have been proved in accordance with law, but the genuineness of the contents

are in dispute it is all the more necessary that the author or the scribe of the contents is examined, so that opportunity is afforded to the person,

who disputed the genuineness of the contents to elicit from the author or the scribe information''s which would show one way or the other as to the

genuineness thereof. The impugned judgment has proceeded only on the proof provided by the contents of Ex. A4. It is difficult for the reason of

the afore-mentioned principle of law to treat the contents as proof in accordance with law and brought accordingly out of the hearsay. The

impugned judgment, in our opinion, for the reasons aforesaid, is not sustainable. It is accordingly set aside. The suit is dismissed, but on the facts of

this case, without costs.