1. The point for consideration in the case is whether when a person admits his signature or thumb impression on a document which purports to have been executed by him, the burden of proving that the document was not executed by him and that he affixed his signature under circumstances referred to by him, falls on hint or whether the plaintiff is bound to prove the execution oi the document.
2. There is some difference of opinion in: different decisions of different High Courts and as the point is coming up in revision frequently the matter needs some careful consideration. The view that the plaintiff has to prove the genuineness of the suit document purporting to have been executed by the defendant event when the defendant admits his signature or thumb-impression on the paper on which the document purports to have been written, is supported by the reasoning that mere affixing of thumb impression or signature-does not amount to execution of a document. It is something more than that. It must be proved or admitted that a document was written and that the person who purports to have executed the document voluntarily affixed his signature or thumb impression knowing full well what the document contained and with the intention of executing the document. For as observed in 'EBUDUT ALI v. MAHOMED FAREED', 35 Ind Cas 56 (Pat).
'Execution of a document consists in signing a document written out and read over and understood and does not consist of merely signing a name upon a blank sheet of paper. To be executed, a document must be in existence. Where there is no document in existence, there cannot be execution. Where an executant clearly says that he signed on a blank paper and that the document which he had authorised is not the document which he contemplated, the statement is a denial, not an admission of execution.'
The same view was expressed in the case reported in 'HOE HOH v. SEEDAT', 5 Rang 527 and the observations are as follows:
'All that the defendant admitted in this case was that his signature appeared on the document filed. Now it is quite clear that if the plaintiff had merely set forth in the plaint that the defendant's signature appeared on the document without any further allegation of fact, his plaint must have been rejected as disclosing no cause of action. It was a necessary averment to state that the defendant had promised to pay him the sum named with interest. The admission made by the defendant did not establish the plaintiff's case, and if there had been nothing on the pleadings besides the plaint and the defendant's denial the suit must have failed.....the burden of proving the loan in our opinion rested on the plaintiff.'
'PIRBHU DAYAL v. TULA RAM', AIR 1922 All 401 (2) is relied on in support of the same position. It was in that case, where the plaintiff sued relying on a document which the defendant affirmed to be only a blank piece of paper to which he wag asked to affix his signature and thumb impression, held : 'The burden of proof of its execution lay on the plaintiff.' Following these two decisions Fazal AH J. with whom Scroppe J. agreed held in 'RAMLAKHAN SINGH v. GOG SINGH', AIR 1931 Pat 219 that:
'Where the law places the onus on the plaintiff to prove that a document is duly executed, the onus cannot be discharged by merely proving the identity of the thumb impression, but it must be further proved that the thumb impression was given on the document after it had been written out and completed. The fact that the defendant's thumb impression appears on the paper is a strong piece of evidence in favour of the plaintiff and in the majority of cases very slight evidence would be necessary to prove that the thumb impression was given on the document after it had been written out and completed. But the fact remains that if the evidence offered by the plaintiff to prove that the document was duly executed or in other words, that the thumb impression was given on the document after it had been written out and completed is found to be unreliable, he cannot be deemed to have discharged the onus properly and no onus is necessarily thrown on the defendant merely by reason of the fact that the defendant asserts that the thumb impression was given on a blank piece of paper.'
There is however another decision of the Patna High Court which has taken a different view and that case is reported in 'SAHDEO v. PULESAR' AIR 1930 Pat 598:
'Where in a suit on a hand-note the defendant, while denying that he had signed or made thumb impression upon any hand-note, admitted that he had put his thumb impression on a blank piece of paper upon which it was intended that a kabuliyat should be written out and that this may be the thumb impression and paper which had been utilized for the hand-note it is a clear admission that the hand-note on which the suit is brought bears the thumb-impression of the defendant and the burden of proof is on the defence to explain how the document bearing the defendant's thumb-impression came into existence.'
Moreover as against the view expressed in '5 Rang. 527' relied on in 'AIR 1931 Pat. 219', it will be seen that the Full Bench decision reported in 'J. K. SHAH v. DULAH MEAH', AIR 1939 Rang 334 has overruled the decision in the earlier Rangoon case. The reasoning in '5 Rang. 527' the earlier Rangoon case, was fully referred to by Roberts C. J. who wrote the judgment of the Full Bench and he observed : 'Production of the promissory note itself, once the signature is proved or admitted shifts the burden to the maker.'
3. As regards the decisions in Allahabad High Court, it must be said that a contrary view has been taken by the same High Court in the later decision reported in 'JAGMOHAN MISIR v. MENDHAI DUBE', 54 All. 375. In that case, the defendants who were sued on a promissory note admitted their signatures but alleged that they had signed a blank paper without any consideration in cash. On the pleadings in that case the Judge framed an issue in the following form: 'Did the defendant execute the promissory note in suit for consideration?' It was held that the issue was wrongly struck so as to throw the burden on the plaintiff. It is no doubt true that emphasis was laid in that case on the presumption under Section 18 of the Negotiable Instruments Act that every negotiable instrument was made or drawn for consideration only until the contrary is proved. But it must be remembered that the issue framed in the case threw the burden of proving the execution of the document also on the plaintiff in spite of the admission that the signatures to the promissory note were those of the defendants and it was not held that the issue as framed was correct to that extent at least. This view is therefore inconsistent with the earlier view in 'PIRBHU DAYAL v. TULA RAM', A.I.R. 1922 All 401(2) relied on in 'RAMLAKHAN SINGH v. GOG SINGH', A.I.R. 1931 Pat. 219.
4. It will be noticed therefore that apart from the fact that there is a Full Bench decision as against the view expressed in 'RAMLAKHAN SINGH v. GOG SINGH', AIR 1931 Pat. 219 the very decision 'HOE HOH v. SEE-DAT', 5 Rang. 527 on which the latter decision was based was overruled by the Full Bench decision. It needs only to add that there is a decision of this court reported in '2 Mys. C. C. R. 167 in which it was held :
'The plaintiff sued on a promissory note the execution of which the defendants denied, but admitted having signed a blank sheet of paper similar to the pronote. The Munsiff dismissed the suit holding that the plaintiff did not prove the execution of the note by the defendants. The plaintiffs preferred a Revision Petition to the Chief Court. Held: That in the circumstances of the case the burden of proof lay on the defendants.'
There is hardly any doubt that mere affixing a signature or thumb-impress ion to a document does not amount to execution of a document. Attestors affix their thumb impressions or signatures to a document to indicate their having witnessed the execution of it. The scribe does so, not merely for having witnessed the execution of the document but also for having written it. Before a person is said to have executed a document it must be either proved or admitted that he not only affixed his thumb-impression or signature, but also that he did so with the purpose of executing the document. Mere admission that a man affixed his signature or thumb-impression to a document does not mean that the execution of the document is admitted. When a thumb impression or a signature that purports to have been put in in a document in token of its execution is admitted by a person to be his, there arises a presumption that he must have executed tha document. Section 114 of the Evidence Act states:
'The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.'
The illustrations given to the above Section are not exhaustive of cases in which the presumptions arise. They are merely illustrations. From the fact that an admitted thumb-impression or signature of a person is found to be affixed to evidence the execution of the document it is open to the court to presume that the person could have affixed the signature or thumb-impression for executing the document If he says that his thumb-impression or signature found in the document was taken for attesting the document for instance though it purports to have been put in for executing the j document it is for him to prove that it is so. If it is his case that he affixed his signature or thumb-impression on a blank paper on which the document must have been written later he has to prove that fact. If he fails to do so, the presumption is against him. At the same time, before any presumption arises against him, he must have unequivocally admitted that the signature on the document is his. It is not sufficient if he merely states ho had on some occasion affixed his signature to a blank paper and the document in question might have been got up with the help of that document. It may not be necessary for the defendant to specifically state that his thumb impression or signature has been taken to the document in question. The admission must clearly amount to his saying so. In the case reported in '2 Mys. C. C. R. 167' the admission of defendant that the signature to suit document was his, was clear from his statement that his signature had been taken to a blank paper similar to that of suit pronote. It cannot be said that in every case the use of the word similar by a party cannot be said to be sufficient to infer that there is an admission that the signature in the document in question is his. The pleadings as a whole must be read and if from what is stated it is clear that a party admits that a signature purporting to have been affixed in token of execution of the document is his, the burden of proving the contrary is on him.
5. Now in this case the suit is filed on the foot of a pronote alleged to have been executed on 10-11-48 by first defendant on behalf of herself and her sons in favour of plaintiff Jayaram. She clearly states in her statement that one Narasimiah got 2nd defendant her minor son of about 15 years to get a pronote for Rs. 5000/- written as if executed in favour of Jayaram and that this was done on 10-11-48. According to her, 2nd defendant was sent to attend to a division of some moveables and her thumb impression was taken on a document. She was not told that she was executing a pronote, nor was any money paid to her. 2nd defendant says in his rejoinder statement that Narasimiah got the pronote for Rs. 5000/-written by him but that he was not present when first defendant affixed her thumb impression to the pronote. He says that Narasimiah told him that he had got her thumb impression and asked him to write to his dictation 'the shara' in Kannada.
6. The suit pronote purports to have been written by 2nd defendant and to have been executed by first defendant. The 'shara' stating that the thumb impression is that of 2nd defendant purports to have been written by 2nd defendant. It is a document that purports to have been executed in favour of plaintiff Jayaram on 10-11-48. It is clear that the defendants admit that first defendant wrote the suit document and second defendant affixed to it her thumb impression and it purports to have been put in to evidence the execution of the document. The burden of proving that the thumb impression was affixed to suit document under circumstances pleaded was rightly thrown on the defendants.
7. Revision petition stands therefore dismissed.
8. Revision petition dismissed.