1. The finding of fact by the lower Court is that defendant 2 did not sign the note. That being so, the conclusion follows that the note in part is not genuine. The question them arose, and should have been dealt with by the lower Court, whether plaintiff was a party to this fraud on defendant 2; if he was he could not be given a decree on a document vitiated by his own fraud; if he was not, the lower Court's decree would be right. The-case in Amirtham Pillai, v. Manjah-Goundan : AIR1914Mad369(1) , relied on by petitioner, does not seem to be in point, as here there could arise no suggestion that defendant 1 agreed to be bound only if defendant 2 was jointly bound, since defendant 1 was himself' a party to the forging of defendant 2's mark on the note.
2. I remand the case for a finding, on the evidence on record, as to whether the plaintiff was a party to the fraud by which defendant 2's mark was put on the pro-note. Time for submission of findings one month and for objections ten days.
3. The point on which I have been called upon to submit a finding, on the evidence on record is whether the plaintiff was a party to the fraud by which defendant 2's mark was put on the promissory note.
4. The evidence of the plaintiff is to the effect that defendants 1 and 2 were present when the promissory note in question was executed, that defendant 2 said that he did not know to write his name and that thereupon defendant 1 put the mark of defendant 2 in the promissory note presumably with the consent of the latter. I have disbelieved this evidence and found that defendant 2 was no party to the document, Under such circumstances if the document was brought into existence in the presence of the plaintiff, and seeing that it was executed in his favour, it is impossible to hold that the plaintiff was unaware of, or was not a party to, the fraud by which 2nd defendant's name also was included in the document and his mark put by defendant 1. The plaintiff must have, at least, connived at the fraud, even if there is no direct evidence to show that he was instrumental in introducing defendant 2's name. There is no direct evidence to prove that the plaintiff was a party to the fraud. Fraud has to be inferred from the circumstances and probabilities of the case. On a consideration of these I find that the plaintiff must have been a party to the fraud. The finding is submitted accordingly.