1. This is a notice of motion asking the Court to give its opinion on the points referred to in the special report made by the learned Commissioner on August 28, 1937.
2. In connection with the appointment of trustees of a charity for the benefit of a caste an order was made on February 25, 1937, that a meeting of the Jain Cutchi Dassa Oswal Mahajan be held for the appointment of three additional trustees. The learned Commissioner was to prepare a list of voters who were entitled to vote, and a meeting was to be called for the purpose of electing three additional trustees. The Commissioner gave directions that nomination papers of candidates should be submitted by July 19, 1937, and he fixed July 26, 1937, for scrutinising nomination papers. The Commissioner received five nomination papers, but two out of the five candidates subsequently withdrew. Whilst scrutinising the remaining three nomination papers the Commissioner rejected the nomination paper of one Ratansey Damji Mavji, and the present questions arise out of the said rejection.
3. It appears that the directions given by the Commissioner for inviting nomination papers contained a provision which was incorporated in the notice which was published inviting members of the Mahajan who were willing to act as trustees to send in their nomination papers. The requirements were as follows:
Such nomination paper shall be in writing and shall be signed by the proposer as well as the seconder with their full names, addresses and occupations, and shall be countersigned by the candidate so willing to act as trustee under the said scheme, and shall also contain the full name of the person so nominated, his address and occupation.
4. Before I proceed to consider the grounds on which the nomination paper was rejected, and whether such grounds are valid, it will be convenient to set out what happened at the meeting before the Commissioner when the nomination papers were scrutinised. The nomination paper of Ratansey Damji was objected to on behalf of one of the parties on the ground that, it was not signed by the candidate. The solicitor who appeared for Mr. Ratansey Damji at one stage said that it must be rejected. Thereupon the Commissioner ruled that the nomination paper must be rejected. Immediately thereafter another partner in the firm of the solicitors who represented Mr. Ratansey Damji appeared and contended that the nomination paper should not be rejected, and that in fact the nomination paper complied with the requirements of the notice, and he withdrew the statement which had been made by his partner that the nomination paper should be rejected. After some argument Ratansey Damji was examined before the Commissioner. Before referring to his examination, it is necessary to set out the form and contents of the nomination paper. It is as follows :
I, the undersigned Poonsey Hirji Meisheri, hereby nominate and propose Mr. Ratansey Damji to be appointed as a trustee of the Jain Cutchi Dassa Oswal Mahajan and I the undersigned Narsi Chatrabhuj hereby second the said nomination. The full name, address and occupation of the said candidate are as under :
Full name of Proposer : Dr. Poonsey Hirji Meisheri.Address : 118-120, Chinch Bunder Road.Occupation : Medical Practitioner.Signature : Poonsey H. Meisheri,Full name of seconder : Narsi Chatrabhuj.Address : 179, Khoja Mohalla, Mandvi, Bombay 9.Occupation : Merchant.Signature : Narsi Chatrabhuj.I, the abovenamed Ratansey Damji, hereby agree to act as a Trustee of the Jain Cutchi Dassa Oswal Mahajan.Full name of the candidate : Ratansey Damji.Address : 177, Khojagalli, Mandvi, Bombay 9.Occupation : Merchant.Signature:Dated 18th July, 1937.
5. It will be noticed from the above that against the space marked 'signature' nothing was inserted. Wherever the name of Ratansey Damji appears, it is put in by a rubber stamp. Mr. Ratansey Damji in his evidence before the Commissioner stated that that was his nomination paper, and that all the rubber stamp impressions on it were made with his own hand. He stated that after putting the rubber stamp impressions of his name and address on the nomination paper, he went to Dr. Meisheri and told him that he wanted to stand for election as a trustee and requested him to propose his name. Dr. Meisheri asked him if he was willing to serve as a trustee and he replied in the affirmative. Dr. Meisheri then signed the nomination paper, and gave it back to Ratansey Damji. Next day Ratansey saw Chaturbhuj and asked him to second his nomination. He told Narsey Chaturbhuj that he wanted to stand for election as a trustee, and Chaturbhuj thereupon signed the nomination paper. He then met plaintiff No. 2 near his pedhi and handed over to him his nomination paper to be filed in the Commissioner's office and it was filed in proper time. He was cross-examined by the other parties, but I have no reason to doubt his evidence, and I accept it as correct.
6. What then happened before the Commissioner was that the Commissioner having rejected his nomination paper, Ratansey Damji expressed his willingness to sign the nomination paper again, and the questions on which the directions of the Court are asked as appearing in the special report are as follows:
(1) Whether the Commissioner should allow Ratansey Damji to sign the nomination paper in his presence and accept the same or whether the Commissioner should call for further nominations?
(2) Whether it was necessary to call a meeting in the event of the Court directing the Commissioner to accept the nomination paper of Ratansey Damji Mavji after it is signed?
(3) Whether in the event of the nomination paper of Ratansey Damji Mavji being rejected by the Court the Commissioner should declare Tricumji Patramal and Bhawanji Vardhman, the other two candidates, whose nomination papers were in order to be duly elected as Trustees and proceed to invite fresh nominations for. the election of a third trustee.
7. It will be seen that on this special report the question whether the nomination paper of Ratansey Damji was properly rejected or not does not arise.
8. Really speaking Ratansey ought to have filed his exceptions to the Commissioner's order rejecting his nomination paper. But all the parties who appeared before me were agreed that the question whether the nomination paper of Ratansey Damji wasl properly rejected by the Commissioner should be decided by me as if an exception to that effect were filed by Ratansey Damji. I heard fully the arguments on this point. I may state that Ratansey Damji is plaintiff No. 1 in the suit. Counsel for the plaintiffs contended that the nomination paper was in order. Counsel for defendants Nos. 1, 3, 4, 5, 6 and 8 argued that the nomination paper was properly rejected. Defendant No. 7 submitted to the orders of the Court. The alleged defects in the nomination paper are two, namely, that the space opposite the word 'signature' is kept blank, and, secondly, that where the name 'Ratansey Damji' is put, it is not written by the hand of Ratansey Damji, but only a rubber stamp bearing his name is put, and that the stamp is not the facsimile of the signature of Ratansey Damji. A signature by means of a stamp has been held to be sufficient where the document is required to be signed, and it is not necessary that the stamp should be the facsimile of the signature. Even a printed heading of the name of the party is a sufficient signature by him, if the document is written in his hand. Nor is it necessary that the signature should be at the foot of the document. It is sufficient if it is so placed as to show that it was intended to relate and refer to, and that in fact it does refer to every part of the instrument. An agreement beginning ' I. A. B.' though not signed by the party was held to be good within the Statute of Frauds in Knight v. Crockjord (1794) 1 Esp. 190. 6 Geo. IV, Chap. 16, Section 131, requires that in an action to recover a claim barred by the certificate granted to the bankrupt the bankrupt's promise must be in writing and signed by him. In Lobb v. Stanley (1844) 5 Q.B. 574, the writing was as follows (p. 576) :
Mr. Stanley begs to inform. [the plaintiff] that he will take an early opportunity of settling their account Mr. Stanley regrets that he has been prevented from answering....
9. The letter was not signed. It was held that it was sufficiently signed. The judgment stated that the object of the signature was to authenticate the genuineness of the document, and that the statute required that the writing should be signed, and it was not required that the name should be subscribed. On behalf of defendants Nos. 1, 3, 4, 5, 6 and 8, it was urged that the signature must be such as to authenticate the whole document. Granting this, it does not follow that the signature must be at the foot of the document, Reliance was placed on behalf of the contesting defendants on the case of Hucklesby v. Hook (1900) 82 L.T. 117. But in that case the writing which was relied upon was neither written by the party whose signature was required nor at his dictation, and it was, therefore, held that it was not a sufficient memorandum of contract to satisfy the Statute of Frauds. What was relied on in that case was that the offer to purchase land was written on a paper containing the printed name and address of the vendor, but not signed by him, nor written at his dictation, and this was held to be insufficient. In the present case the relevant portion of the nomination paper is as follows:
I the abovenamed Ratansey Damji hereby agree to act as a Trustee of the Jain Cutchi Dassa Oswal Mahajan.
10. The words 'Ratansey Damji' are proved to be stamped by the gentleman himself. Then follows the full name of the candidate, viz., Ratansey Damji and his address and occupation. The full name has been also stamped by Ratansey Damji himself. In my opinion the requirements, that the nomination paper should be countersigned by the candidate willing to act, and should also contain the full name of the person so nominated and his address and occupation, have been complied with, I, therefore, hold that the nomination paper was proper and ought not to have been rejected.
11. This renders the consideration of the points mentioned in the special report unnecessary ; but as they were fully argued, and as consideration of those points might become necessary in the event of the Appeal Court taking a different view, I proceed to consider them. If I had held that the nomination paper had been properly rejected, and that it did not comply with the requirements of the notice, I would not have allowed it to be signed after the expiration of the date on or before which it was to be sent in. If the nomination paper was not valid on the last day fixed for its receipt, the signature subsequently put after that date could not make it valid retrospectively. It would only amount to this that a proper nomination paper is filed or tendered only on the date on which the signature is so allowed to be made and such a nomination paper would be out of time.
12. The position then would be that only two valid nomination papers could be said to have been received. The meeting was to be called to elect three trustees, and if only two nomination papers were received, in my opinion it would have been necessary to call for fresh nomination papers. If in all three nomination papers were received, the candidates mentioned therein should be declared elected. If more than three were received, their nomination papers would have been put before a meeting for election of three of them.
13. As regards the second question, since the nomination paper of Ratansey Damji is proper, there are in fact three candidates for three posts, and it is not necessary to call a meeting of the Mahajan. I answer question 3 by saying that if the nomination paper of Ratansey Damji had been rejected, the other two candidates could not have been declared to be elected as trustees and fresh nomination papers could not have been asked only for the election of the third trustee. The meeting was to be called to elect three trustees, and if the nomination papers received amounted to more than three, they would have to be all put before the meeting at one time.
14. For the reasons aforesaid, I am of opinion that the Commissioner should have declared Ratansey Damji and Tricumji Patramal and Bhawanji Var-dhman duly elected as three additional trustees.
15. Costs of all parties will be taxed as between party and party to come out of the trust estate.