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Bheek Chand and ors. Vs. Parbhuji - Court Judgment

LegalCrystal Citation
SubjectCommercial;Contract
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 509 of 1960
Judge
Reported inAIR1963Raj84
ActsEvidence Act, 1872 - Sections 67; Contract Act, 1872 - Sections 235
AppellantBheek Chand and ors.
RespondentParbhuji
Appellant Advocate Shrikishan Mal Lodha, Adv.
Respondent Advocate B.N. Chanda, Adv.
DispositionRevision allowed
Cases ReferredIn Kishori Prosad v. Secy. of State
Excerpt:
- - the trial court was satisfied that the accounts of the plaintiffs were true. it was satisfied that the debit and credit sides of the previous khata as well as the fresh khata dated 26-10-54 were signed by parbhuji purporting to act on behalf of ranji panaji......accounts of the plaintiffs were true. but it held that all the defendants were not partners in the business ranji panaji but that it was owned by ranji alone. it was satisfied that the debit and credit sides of the previous khata as well as the fresh khata dated 26-10-54 were signed by parbhuji purporting to act on behalf of ranji panaji. on this finding the suit was decreed. against this decree parbhuji preferred an appeal. the learned district judge held firstly that the execution of the fresh khata dated 26-10-54 by parbhuji was not duly proved and secondly that as parbhuji purported to sign as an agent of ranji panaji the suit could not be decreed against him.6. another serious error committed by the learned district judge was that he held that a person not knowing english or sindhi.....
Judgment:
ORDER

Jagat Narayan, J.

1. This is a revision application by the plaintiffs in a suit for recovery of money which was decreed by the trial Court, but was dismissed by the appellate Court.

2. The suit was Instituted against Ranji, Parbnuji and Mulji sons of Panajl on the allegation that they carried on business in partnership at Balotra in the name Ranji Panaji and had dealings with the plaintiffs beginning from Asad Badi 13 Section 2008 corresponding to 20-6-52. It was alleged that they purchased one bag of tobacco worth Rs. 90/- on that date and purchased 11 bags of tobacco 10 days later worth Rs. 2001/-. Further they were alleged to have made payments from time to time. An accounting took place between the parties on 26-10-54 when a debit balance of Rs. 462-8-0 was found against them for which a fresh Khata was executed by Parbhuji on behalf of the defendants on that date. Parbnujl was also alleged to have signed the debit and credit sides of the previous Khata.

3. According to the plaintiffs further payments were made by the defendants after that date and a balance of Rs. 389-15-0 remained outstanding against them on Katik Badi 15, Section 2011. The present suit was Instituted for the recovery of this amount together with a sum of Rs. 44-4-0 as interest and Rs. 5-13-0 as notice charges.

4. All the three defendants contested the suit. They filed separate written statements. They denied that the business at Balotra in the name Ranjl Panaji was partnership business of the three brothers. Their case was that there was no partnership between them and that -they carried on their business separately. Ranji admittedthat he had dealings with the plaintiffs in tobacco, but alleged that he never made purchases on credit. He denied the truth of the accounts of the plaintiffs. Parbhuji denied having signed the debit and credit sides of the previous Khata and having executed a fresh Khata on 26-10-54.

5. The plaintiffs produced all their account books in court including Rokars and Khatas for the relevant period. The trial court was satisfied that the accounts of the plaintiffs were true. But it held that all the defendants were not partners in the business Ranji Panaji but that it was owned by Ranji alone. It was satisfied that the debit and credit sides of the previous Khata as well as the fresh Khata dated 26-10-54 were signed by Parbhuji purporting to act on behalf of Ranji Panaji. On this finding the suit was decreed. Against this decree Parbhuji preferred an appeal. The learned District Judge held firstly that the execution of the fresh Khata dated 26-10-54 by Parbhuji was not duly proved and secondly that as Parbhuji purported to sign as an agent of Ranji Panaji the suit could not be decreed against him.

6. Another serious error committed by the learned District Judge was that he held that a person not knowing English or Sindhi himself could not prove that the writings in English or Sindhi were made by Parbhuji. Section 67 of the Evidence Act does not lay down any particular kind of proof for proving that a particular writing or signature is in the hand of a particular person. The fad that a particular person has written a particular writing can be proved by the direct evidence of those persons who have seen him making the writing on the particular document irrespective of whether or not they can read what was written, it has to be remembered that a document can be executed not only by affixing one's signatures, but also by making a mark on it. When a document bearing a thumb-mark of a person is proved it is not necessary that the person proving the affixation of the thumb-mark should be able to identify the thumb-mark. All that is required is that he should be able to identify the document on which he states that the thumb-mark was affixed. In the present case the documents on which Parbhuji was alleged to have made English and Sindhi writings were written in Hindi which all the witnesses, who came forward to prove the writings of Parbhuji, knew. They were competent witnesses to prove the writings of Parbhuji on these documents in English and Sindhi in spite of the fact that they did not know English and Sindhi. In the AIR Commentary on Evidence Act the following appears as point 15 under Section 67 :-

'A person who is produced to prove the signature or handwriting on a document under Section 67 must be able to identify the handwriting or signature. The essential can be fulfilled only when the witness is himself acquainted with the language in which the handwriting or signature has been made. Hence where an illiterate person who does not know the script of a document and who is unable to recognize the signature or handwriting on the document merely says that it was written and signed in his presence it is not a sufficient proof of the document.'

7. It is not correct to say that a person can only prove the handwriting on a document when he is himself acquainted with the language in which the handwriting or signature has been made. Although 1948 R. D. (BiharReports) on which the observation purports to have based is not available here it is clear from the contents that in the case in which the above observation was made the person who had come forward to prove the writing was an illiterate person. For such a person it is difficult to identify the document on which he has seen someone making a writing. An illiterate person cannot therefore ordinarily prove a writing or signature made by another person. But a person knowing the language in which a document is written can identify the document with certainty and when he has seen another person making a writing on it he can prove that writing without knowing the language in which the writing by that person was made.

8. I accordingly hold that it has been proved that the writing and signatures on the debit and credit sides of the previous Khata and the fresh Khata dated 26-10-54 are in the hand of Parbhuji.

9. The question now arises is whether the suit can be decreed against Parbhuji. I think that it can be decreed under Section 235 Contract Act. The plaintiffs were under the bona fide impression that the business Ranji Panaji was the partnership business of all the three defendants. As a result of the judicial enquiry which took place In the present case it turned down that it was the business of Ranji Panaji alone. Under the bona fide impression that It was the business of the three defendants the plaintiffs relied on the acknowledgment made by Parbhuji on 26-10-54 and did not bring a suit when the liability was within limitation. When the present suit was Instituted the suit became time barred against Ranji, as the acknowledgment made by Parbhuji purporting to act on behalf of Ranji Panaji was not binding on him. Parbhuji by signing an acknowledgment for Ranji Panaji untruly represented that he was an authorised agent of Ranji Paneji. As a result of this act the claim of the plaintiffs against Ranji became barred by limitation. Under Section 235 of the Contract Act the plaintiffs are entitled to receive compensation from the pretended agent Parbhuji. It was held In Kishori Prosad v. Secy. of State, AIR 1938 Cal 151 that in enforcing an implied warrant by the professing agent it is not necessary for the plaintiff to prove that the representation was fraudulent. All that is required to be proved is that it is untrue.

10. I accordingly allow the revision application withcosts, set aside the decree of the appellate court anddecree the suit of the plaintiffs against Parbhuji withcosts. The applicants are also entitled to recover theircosts of the appellate court from Parbhuji.


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