1. This second appeal arises out of a suit brought by the respondents Nanku and Sukhu, against one Sitaram, appellant, for a declaration that a sale-deed purporting to have been executed on the 2nd June 1923, by Deosaran defendant 2 (i.e., respondent 3) was forged, fraudulent and fictitious. The suit was decreed by the trial Court on a finding that the defendant Sitaram had failed to prove the due execution of the deed by Deosaran his vendor.
2. On first appeal the Subordinate Judge of Benares found that there had been no clear issue in the trial Court as to forgery, and that, by reason of the absence of a clear issue, defendant 1 may have been led into supposing that he was not required to produce evidence of due execution of the deed by Deosaran. He accordingly framed an issue whether the sale-deed was genuine and had been executed by Deosaran, and took fresh evidence.
3. The defendant Sitaram produced a finger impression expert. He gave evidence that the thumb-impression on the deed purporting to be that of Deosaran agreed with the undoubted thumb-impressions tendered in evidence. He also produced the scribe by name Bishunath Singh and one Ramsundar, who purported to be an attesting witness. The conclusion of the Subordinate Judge, after hearing this evidence, was that: (a) the thumb-impression on the deed did agree with Deosaran's thumb-impression; (b) that the thumb-impression suggested that one of the thumb-impressions of Deosaran was taken on the top of another thump-impression of Deosaran, (c) that the scribe could not be believed, because he being a man of experience would never have allowed one thumb-impression to be taken on the top of another, but in the event of the first impression being obscure would have taken a second one on a different portion of the paper, and (d) that the other witness escontradicted one another and the scribe. On these findings the lower appellate Court came to an extraordinary conclusion. It was that somehow or other the thumb-impression of Deosaran had been fraudulently obtained upon the document, and that the defendant had failed to show that it was Deosaran's thumb-impression voluntarily impressed on the document. In order to give any meaning to this decision we have to suppose that the Subordinate Judge conceived the possibility either of a die having been made from some other thumb-impression of Deosaran and a forged impression by means of the die impressed on the document in question or that Deosaran's thumb-impression had been obtained when he was asleep or drunk.
4. The first question that arises in this appeal is whether in these circumstances we are entitled in second appeal to interfere with the finding of the Subordinate Judge. There can be no question that it was a finding of fact. As I shall subsequently show, the error of the lower appellate Court was its failure to invoke a presumption of fact. The question then arises whether such a failure justifies interference in second appeal. The question has not been discussed at length in any decisions to which my attention has been directed. There is authority for holding that a second appeal may be entertained on the ground that the lower appellate Court has failed to invoke a presumption of fact which would have shifted the burden of proof. A distinction, however, should, in my opinion, be made where the burden of proof is shifted by a presumption of fact and where it is shifted by a mere inference. In the case of Ranee Surnomoyee v. Luchmeeput Doogur  9 W.R. 338 a second appeal was allowed on the ground that the burden of proof which originally was placed on the husband of a Mahommedan wife to prove some property to be his, because the property was in the name of the wife, was shifted from him upon proof by him that he had paid the purchase-price for the property and had the property under his control; this decision was by no less an authority than Peacock, C.J. He held that a question of law was involved, because the Judge should have directed himself to draw this presumption from the facts mentioned. Again in Nilatatchi v. Venkatachala 1 M.H.C. 131 it was held that silence on the part of the plaintiffs to take a step to claim property in the enjoyment of the defendant and over which the defendant was exercising acts of ownership raised a presumption of acquiescence. Both these cases go further than I should be disposed to go; for they interfered on the ground of failure to draw what I should regard as a mere inference and not as a presumption of fact. They are, however, both clear authority for interference in the present case. The distinction that I would draw between a mere inference and a presumption of fact, as already indicated, is that a presumption of fact is an inference drawn under Section 114, Evidence Act and will include a presumption of the nature described in the illustrations. A presumption of fact should in my opinion also include anything that in English law (though not under the Indian Evidence Act) would rank as a presumption of law. The presumption which the lower appellate Court failed to make in this case was a presumption that when a signature on a document is proved by a certain person, it is for that person to prove that it was affixed by him otherwise than voluntarily. According to Taylor on Evidence, 3rd edn. p. 145,
Courts of law are in general bound to presume prima facie in favour of deeds which appear to have been duly executed.
5. 'Appear' must mean here which bear a proved signature. The presumption then which the lower appellate Court, I shall hold, ought to have made was a presumption that in England would have been a presumption of law. It is difficult to find a formula to express the difference between presumptions of fact of the nature indicated by me and mere inferences. Phipson in his work on evidence says:
The burden of proof may be shifted not alone by rebuttable presumptions of law but by presumptions of fact of the stronger kind or indeed by any species of evidence sufficient to raise a prima facie case.
6. My conclusion then is that a second appeal lies on the ground of the failure of the lower appellate Court to invoke a presumption of fact of the stronger kind '(by which I mean inferences of the nature illustrated in Section 114, Evidence Act, and inferences that in English law would be legal presumptions), and that there is even authority for holding that the failure of the lower appellate Court to draw any mere inference that it should have drawn would justify interference in second appeal, though I would not follow authority to this extent. The consequence is that in this case a second appeal, in my opinion, lies.
7. It appears desirable to state that the probabilities were all against this document being a forgery. Deosaran had mortgaged his land to the defendant Sitaram on the 12th August 1915 for Rs. 300. It is said that, by this sale-deed now impeached, on the 2nd June 1923, he sold the equity of redemption to Sitaram for another Rs. 4.00. Then we get the fact that he executed a further sale-deed in favour of the plaintiffs Nanku and Sukhu, on the 5th June 1923. He got by this last sale-deed a sum of Rs. 1,100. Consequently it was all to the interest of Deosaran to deny his execution of the sale-deed, impeached in the present suit, and no one could place any reliance on his evidence. It does not appear that the Subordinate Judge did place any reliance on his evidence, but the case started with the probability in favour of the execution of the impeached document having been greater than the reverse. Then we get the clear evidence of the thumb-impression expert that the thumb-impression mark on the document corresponds to Deosaran's genuine thumb-impression. This evidence is of much more value than the ordinary evidence of an expert. We are not aware that the test of similarity has never failed. The Subordinate Judge admitted that this evidence conclusively proved the thumb-mark to correspond with that of Deosaran. This being so, he had evidence of a document which in other respects was not open to suspicion and was not improbable. He attempts to discount the evidence of the thumb-impression expert by his own impression that one thumb-mark had been placed on the top of another. This impression is not one that we are disposed to share. It was not shared by the thumb-impression expert himself. It appears then to us that at this stage it was for the plaintiffs to show that the thumb-impression of Deosaran had been obtained by some improper means either when he was asleep or in some such way. There was a presumption of fact that the document which bore his thumb-impression was voluntarily executed to him. Instead of invoking this presumption the lower appellate Court proceeded to require the defendant to produce all his evidence, and on the ground that this evidence was discrepant it found that the defendant had failed to prove the genuineness of the document. This we consider to have been a failure to invoke the presumption that arose from the proof of the thumb-impression on the document being the thumb-impression of Deosaran. It is obvious that if a person, who has proved execution by showing that a signature or thumb-impression on a deed is the signature or thumb-impression of the alleged executant, is required to go on and prove, after a considerable lapse of time, due execution by putting forward an attesting witness and other witnesses whose story will agree in every detail, there will be a great risk of injustice and an intolerable burden thrown upon the parties setting up a document. This was not a document which required attestation. The lower appellate Court should have in the circumstances of the case rested content with proof of the thumb-impression of Deosaran in the absence of the plaintiffs being able to produce any evidence that the thumb-impression was improperly obtained. I consider, therefore, that the finding of the lower appellate Court, though a finding of fact, was one based on its failure to presume the genuineness of the document in the absence of any evidence believed by the Court, led by the plaintiffs, to prove that the deed was otherwise than properly executed. For these reasons we would allow the appeal and dismiss the suit with costs throughout.
8. I agree. The lower appellate Court has found that Deosaran's thumb-impression is on the sale-deed in suit. It did not, therefore rely on the evidence of Deosaran himself in the first Court to the effect that he had not put his thumb-mark on the sale-deed. Having arrived at this decision the lower appellate Court had no evidence whatever produced before it on which it could base a finding that the thumb-impression of Deosaran was put on the sale-deed in any irregular manner, and that finding is, therefore, not based on any evidence. For this reason I agree that we are justified in interfering with the decision of the lower Court in second appeal.