(1) This is a second appeal directed against the judgment and decree of the Extra Assistant Judge of Dharwar dated 27-12-1954 in appeal No. 677 of 1955 reversing the decree in Original Suit No. 68 of 1951 on the file of the Joint Civil Judge, Junior Division Gadag.
(2) The plaintiff who is the appellant in this appeal sued for recovery of money of Rs. 930/- inclusive of interest on the basis of a pronote dated 29-9-47 said to have been executed by one Davalsab the deceased for a sum of Rs. 400/-. He further pleaded that the said Davalsab paid an amount of Rs. 200/- towards interest on 9th August, 1950 which was endorsed on the pronote under his signature. The defendant Davalsab died within three days of the institution of the suit and his widow and minor children were brought on record as the legal representatives of the deceased.
In their written statements while admitting the execution of the pronote they inter alia contended that Davalsab did not make any payment on 9th August, 1950 nor made any endorsement to that effect and the suit was time barred and it should be dismissed. The learned trial judge held that the satisfaction as alleged by the defendant had not been proved. He found that it has not been established as alleged by the plaintiff that Davalsab the deceased paid Rs. 200/- on 9th August, 1950, but after comparing the signature below the endorsement with the admitted signature on the pronote he came to the conclusion that the signature below the endorsement of payment was that of the deceased Davalsab.
He further held that as the said endorsement amounted to an acknowledgment of a liability though it cannot be operative under S. 20 of the Limitation Act, nevertheless it is effective as an acknowledgment of liability under S. 19 of the said Act so as to save limitation. He therefore decreed the plaintiff's suit with costs and allowed him future interest on the amount of Rs. 800/- at the rate of 3 per cent per annum from the date of the institution of the suit.
(3) The defendant went in appeal to the District Court, Dharwar. The learned Extra Assistant Judge, Dharwar found that there was no evidence on record to the effect that the signature bellow the endorsement is that of Davalsab the deceased. He held that in the absence of any positive evidence the trial judge erred in coming to the conclusion by merely comparing the admitted signature with the signature below the endorsement that they are of the same person i.e., Davalsab the deceased. He therefore allowed the defendant's appeal, set aside the judgment and decree of the trial court and dismissed the plaintiff's suit.
(4) Aggrieved by this judgment, the plaintiff preferred a second appeal to the High Court of Judicature at Bombay which has been transferred to this Court on the reorganisation of States.
(5) The only contention raised on behalf of the appellant in this appeal is that the trial court by comparison of the signature on the endorsement purporting to have been signed by Davalsab the deceased with admittedly the genuine signature of Davalsab has come to the conclusion that the former is genuine. This has been objected by the lower appellate court which held that the trial court ought not to have arrived at a conclusion by mere comparison of the signatures.
Reference has been made by the lower appellant court to S. 73 of the Indian Evidence Act but in spite of that he (the lower appellate Judge) without comparing the signature on the endorsement with the admitted signature came to the contrary conclusion that the signature came to the contrary conclusion that the signature on the endorsement is nor that a Davalsab the deceased.
(6) The learned Advocate for the appellant contends that S. 73 of the Evidence Act is clearly against the objection. When trial court had come to a conclusion by comparison of the disputed signature with the admitted signature of Davalsab the deceased, the lower appellate court also ought to have given its finding after comparing the signatures as provided under Section 73 of the Evidence Act, and as he had omitted to do this he urged that the case should be remanded to the lower appellate court with a direction that the lower appellate judge should give his finding after comparing the signatures himself.
(7) In support of his argument the learned advocate for the appellant relies upon cases reported in Madhavayya v. Achamma , Manindra v. Mahaluxmi Bank Ltd. , Narasimha Rao v. Someswar Joshi, : AIR1957Mad210 and Gondu v. Tulsiram, AIR 1930 Nag 27.
(8) There is no doubt that the courts have power to compare the alleged genuine signature with the admittedly genuine signature to come to a conclusion from it. The scheme of the Evidence Act in regard to the mode by which a disputed handwriting or signature can be proved is that of three-fold character :
(i) by the evidence of an expert under S. 45 of the Evidence Act.
(ii) by the opinion of any person acquainted with the handwriting of the person by whom it is supposed to have been written or signed under S. 47 of the Evidence Act, and
(iii) by the comparison made by the Court of the writing or signature in proof of admitted documents under S. 73 of the Evidence Act.
(9) The last mode is a mode recognised by law and may be followed when the other modes of proof are not made available. But it has been well established by preponderance of authorities that a comparison of signatures by Courts as a mode of ascertaining the truth should be used with great care and caution.
(10) In Rudragowda Venkan Gouda v. Bassan Gouda Danappa Gouda, 175 Ind Cas 361 : (AIR 1938 Bom 257), it has been held that :
'Where the Judge compares the handwriting with the other documents which are produced before him and which are not challenged as fabricated, such a process of comparison by the Court upon its own initiative and without the guidance of an expert and even with it is at all times hazardous and recognizably inconclusive.'
(11) In Natwarsinghji v. Arjan Sundarji, AIR 1950 Kutch 17, where the execution of a bond was denied by its executor and the lower court by comparing the alleged signature of the executant on the record with those on accounts produced by the plaintiff and on the bond, held that the latter signatures were of the executant, it was held that the comparison of the two sets of handwritings was not conclusive.
(12) In a Division Bench cas eof the Calcutta High Court reported in Sudhindra Nath v, The King, : AIR1952Cal422 , it was observed :
'It is a rule of law that it is extremely unsafe to base a conviction upon the opinion of handwriting experts without substantial corroboration; because it is well known that a comparison of handwriting as a mode of proof is always hazardous and inconclusive, unless it is corroborated by other evidence.'
Though the above observation has been made in a criminal case, a general principle is laid down in it.
(13) In another case of Oudh High Court reported in Latafat Hussain v. Onkar Mal, AIR 1935 Oudh 41, it has been laid down that a comparison of handwriting is at all times as a mode of proof, hazardous and inconclusive.
(14) The learned Advocate for the appellant argued that their Lordships of the Privy Council themselves while comparing the disputed signature in proved or admitted documents have come to the conclusion in the cases before them. Therefore the lower appellate court has erred in not comparing the signature of Davalsab the deceased and giving its own finding thereof. By virtue of the provisions of S. 73 of the Evidence Act, the court has power to compare the alleged genuine signature with the admittedly genuine signature to come to a conclusion. But the rule of prudence to come to a conclusion. But the rule of prudence is that comparison of signatures by courts as a mode of ascertaining the truth should be used with great care and caution and this has been firmly established by authorities.
A conclusion based on mere comparison of handwriting or signature must at best be indecisive and yield to the positive evidence in the case. Therefore the prudence dictates the rule of caution in the case of comparing the signatures by the courts though as far as law is concerned a signature can be compared and a conclusion can be based upon such a comparison.
(15) In the witness, the son of the deceased attesting witness, had stated that the signature on both the documents looked like the signature of his father. The son-in-law of another attesting witness (dead) had definitely stated that the signature on both documents were those of his father-in-law and the attesting witnesses had also given evidence in that case. Thus this ruling is distinguishable from the present case.
(16) In other cases cited on behalf of the appellant viz.. AIR 1930 Nag 27, were no suspicious circumstances as in the present case and in the absence of such the courts could with advantage compare the signature as provided under S. 73 of the Evidence Act. Hence these rulings are also distinguishable from the present case.
(17) The plaintiff's case is that Davalsab the deceased made payment of Rs. 200/- and affixed his signature below the endorsement in the presence of one Gullappa, the plaintiff's witness who is its (the endorsement) writer. The oral evidence produced by the plaintiff-appellant in support has examined the writer of the endorsement Gullappa who states that Davalsab the deceased was not present when he wrote the endorsement nor did he sign in his presence. The plaintiff gave evidence himself but claims to know little or nothing about the affixing of the signature on the endorsement. In his cross-examination he says :
'I cannot see persons standing at a distance of one cubit from me........Davalsab was sitting at a distance of 2 or 3 cubits from me.'
Thus much weight cannot be attached to such evidence. He says that Davalsab made the payment of Rs. 200/- in the presence of Gullappa but Gullappa the plaintiff's witness denies it and states that no such payment was made in his presence. The plaintiff admits that all such payments are entered in his 'Tippan Book' but no such book has been produced by him in the case. Surely if it had been produced it would have been a material evidence in support of his claim and failure to produce the same would raise an adverse presumption against him under S. 114 clause (g) of the Evidence Act.
(18) Both the courts below held that the alleged payment of Rs. 200/- has not been proved and the further finding of the trial court is that a fictitious entry seems to have been made at the instance of the plaintiff. In these circumstances, it is difficult to say that by comparing Davalsab's signature on the pronote with that on the endorsement that the latter is his (Davalsab's) signature. No expert evidence is given. Even the expert evidence would not be conclusive. Still less the comparison of the two signatures by the Judge.
Hence no useful purpose can be served by remanding the case to the lower appellate Court as suggested on behalf of the appellant. Thus I find it difficult to refuse agreement to the conclusion arrived at by the lower appellate Judge. The appeal is therefore unmaintainable. It is thus disallowed. I give no order as to costs.
(19) Appeal dismissed.