1. The point for determination in this appeal is whether the promissory note, Exhibit A-1, was executed by defendants 1 and 2, and, if it was, whether it is not supported by consideration. The learned Subordinate Judge found that the promissory note was executed by defendants 1 and 2 and that it was supported by consideration. The defendants appeal from that judgment.
2. The promissory note purports to have been executed by defendants 1 and 2 in favour of the plaintiff. The second defendant is the wife of defendant 1. The promissory note is in a printed form. The evidence of P.Ws. regarding the execution of the promissory note is this. Defendant 1 filled up the blanks in the printed form. The printed form as filled up by defendant 1 was the promissory note for Rs. 6,200 payable with interest at 12 per cent, per annum for value received in cash. It contains the words, 'We promise'. The agreement between defendant 1 and P.W. 1 was that the promissory note should be executed by both the defendants. P.Ws. 1 and 2 and defendant 1 were sitting in the payal of the house of the defendants. Defendant after having filled up the blanks in the form, took the promissory note inside, saying that he would obtain his wife's signature. She is a purdhanashin lady whom the plaintiff should not see. Defendant i came out with her thumb-impression and her signature in Urdu. He told the P.Ws. that the thumb-impression and signature had been affixed by his wife. He made an endorsement to that effect in the left-hand margin of the promissory note and signed that endorsement. After signing that endorsement, he affixed his own signature to the promissory note below the signature and thumb-impression which, he said, were his wife's. P.W. 1 accepted the promissory note from defendant .
3. Defendant 1 denied that his wife had affixed her thumb-impression or made her signature. His evidence is this : P.W. 1 was not present at the time of the execution of the promissory note by defendant 1. P.W. 2 took the promissory note to defendant 1. P.W. 2 wanted that the promissory note should be executed by both the defendants. The first defendant told P.W. 2 that defendant 2 would not agree to execute the promissory note; but P.W. 2 said that defendant 1 might make an endorsement on the margin that the thumb-impression and the signature were those of his wife and sign the endorsement and also the promissory note and that P.W. 2 himself would obtain the second defendant's thumb-impression and signature. On the statement being made by P.W. 2 defendant 1 wrote the endorsement which appears in the margin and affixed his signature to the endorsement and to the promissory note.
4. It is plain that the evidence of defendant 1 is false. Neither P.W. 1 nor P.W. 2 was interested in taking the promissory note as if executed by defendant 2 if she was not willing to execute it. Defendant 1 himself would not have left the promissory note in the hands of P.W. 2 or P.W. 1, knowing that they would make an attempt to forge a signature or have a thumb-impression affixed as the signature or thumb-impression of his wife. I agree with the learned Subordinate Judge in his appreciation of the evidence on this point. I find that the evidence of the P.Ws. is true and that the facts in relation to the execution of the promissory note are that defendant 1 promised that the promissory note would be executed by him and his wife, that he wrote out the promissory note, filling up the blanks in the printed form, and took the promissory note inside his house for his wife to sign it, that he brought the promissory note out with a thumb-impression and signature in Urdu, that he told P.Ws. 1 and 2 that the thumb-impression and signature were his wife's and made an endorsement to that effect in the promissory note, and that, thereafter, he himself put his signature to the promissory note below the thumb-impression and signature which were represented by him to be his wife's. Defendant 1'S signature to the promissory note is admitted by him. The question is whether the execution of the promissory not by defendant 2 has been proved.
5. There is no direct evidence that defendant 2 affixed her thumb-impression or that she signed the promissory note. If the evidence of the P.Ws. that defendant 1 told them that the thumb-impression and the signature appearing in the promissory note were his wife's is not admissible on the ground that it is hearsay then, there is very little evidence in support of the learned Subordinate Judge's finding that the second defendant executed the promissory note. I have given reasons for the view that I believe the P.Ws. when they say that defendant 1 told them before he himself signed the promissory note that the signature and thumb-impression appearing in the promissory note above his signature had been made by his wife. The question is whether defendant i's statement that the signature and thumb-impression in the promissory note had been made by his wife gets excluded under the rule of exclusion of hearsay evidence.
6. The rule of exclusion of hearsay evidence has an exception enacted in Section 6 of the Evidence Act. Section 6 states:
Facts, which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether, they occurred at the same time and place, or at different times and places.
Illustration (a) to that section is this:
A is accused of the murder of B by beating him. Whatever was said or done by A or B or the-by-standers at the beating, or so shortly before or after it as to form part of the transaction is a. relevant fact.
In the present case, the fact in issue is whether defendant 2 executed the promissory-note. The facts which are proved are that defendant 1 went inside the house with, the promissory note drawn up, but unsigned, and came out with the document bearing a thumb-impression and signature and said that the thumb-impression and signature had been affixed by his wife. He made an endorsement to that effect on the promissory note. The fact in issue, namely, whether she signed the promissory note inside the house is so connected with the acts of defendant 1 getting inside the house,, coming outside the house to the verandah with the thumb-impression and signature and then stating that the thumb-impression and signature were his wife's as to render all of them parts of the same transaction. Under the rule of res gestae enacted in Section 6 of the Evidence Act, statements which form part of the same transaction become an exception to the rule of exclusion of hearsay evidence. The statement made by defendant 1 that the thumb-impression and the signature in Urdu appearing in Exhibit A-1 were his wife's is admissible in evidence. Since that statement is admissible in evidence, it forms circumstantial evidence tending to prove that defendant 2 executed the promissory note.
7. The next question is whether defendant 1'S statement made to P.Ws. 1 and 2 that his wife had made the thumb-impression and signature should be accepted. When defendant 1 brought the promissory note outisde, he clearly knew who had made the signature and affixed the thumb-impression. He does not say that any other person made the signature and affixed the thumb-impression. The circumstantial evidence thus proves beyond reasonable doubt that the signature and thumb-impression appearing in Exhibit A-1 are the signature and thumb-impression of defandant 1, that is, that she executed the document.
8. In support of his conclusion that the signature appearing in Exhibit A-1 is that of defendant 2, the learned Subordinate Judge relied on his own opinion formed as a result of comparing that signature with the signature appearing in Exhibit A-6, which is admitted to be hers. On the question whether the opinion formed by a Judge regarding the execution of a document by a person, merely on a comparison of the signatures appearing in the document, which is said to be his, with other signatures which are admitted to be his, is by itself evidence adequate for resting a finding, the view taken by this Court in Pasupuleti Venkamma v. Shaik Hamid (1912) 14 I.C. 741 and Narasimha Rao v. Someswar Joshi : (1956)2MLJ399 is not in accord with the observations made by a Bench of the Calcutta High Court in Fazaladdin v. Panchanan Das : AIR1957Cal92 . The point relates to the use that can be made of the opinion formed by a Judge on a comparison of signatures made under Section 73 of the Evidence Act. Where a document is alleged by one party to bear the signature of a person, say, X, and X denies that the document was signed by him, then, the opinion of an expert on the question whether the disputed signature is that of X, given on a comparison of that signature with signatures of X, which are admitted or proved, is a relevant fact under Section 45 of the Evidence Act. Similarly the opinion of persons who are acquainted with X's signature, given after a comparison of the disputed signature with admitted or proved signatures, is relevant under Section 47. In these sections, the Legislature expressly states that the opinions are themselves relevant facts. Under Section 73, the Court is authorised to compare the disputed signature with signatures which are admitted or proved in order to ascertain whether the disputed signature was made by the person, by whom it is alleged to have been made. Where the Court has before it opinions which are declared relevant facts under Section 45 or Section 47 of the Evidence Act, the Court may base its conclusion in a proper case solely on such opinions and decide on the basis of these opinions whether the disputed signature was made by the person by whom it purports to have been made. But, where the Court bases its conclusion solely on its own opinion arrived at as a result of comparison of the disputed signature with admitted or proved signatures, the decisions of this Court in the cases referred to above, - in each case, by a Judge sitting singly - are to the effect that the Court's judgment cannot be called in question on the ground that it is not based on evidence. The observations made by the Calcutta High Court on that point are these:
It is true, if there was no evidence before the Court as regards the genuineness of the signature, the Court could not, in law, rely on its own examination of the signature to supply the evidence because-the learned Judge could not treat himself as an expert. I am unable to find anything in principle or authority which bars the Judge of facts from using his own eyes and looking at the admitted signature along with the disputed signature in deciding whether the evidence that has been given as regards the genuineness of the document should be believed or not.
If those observations correctly state the law on that point it would follow that, where there is no evidence on the question of the genuineness of the disputed signature in the shape either of direct or circumstantial evidence or of opinions relevant under Section 45 or Section 47, the Court's own opinion arrived at as a result of comparison of signature authorised by Section 73 of the Evidence Act would not be adequate for resting a finding on. If there were not in this case circumstantial evidence proving that the second defendant's signature and thumb-impression described in the promissory note as hers were in fact made by her, it might have been necessary to refer to a Bench for authoritative decision the question whether, in a case where there is no other evidence, direct or circumstantial, and no opinion relevant under Section 45, or Section 47 regarding the genuineness of a disputed signature, the Court's own opinion on a comparison of signatures made under Section 73 of the Evidence Act would be adequate for resting a finding on the genuineness of the disputed signature. In this case, we have circumstantial evidence, which, as I have said, is adequate to prove that the second defendant executed the promissory note. The conclusion based on that evidence gets reinforced by the opinion formed on a comparison of signatures under Section 73 of the Evidence Act. As to the result of comparison of the signatures, I agree with the learned Subordinate Judge in his opinion that the signature in Exhibit A-1 appears to be the signature of the person who made the admitted signature in Exhibit A-6, namely, defendant 2.
9. I agree with the learned Subordinate Judge and find that the promissory note was executed by defendant 2 as well as by defendant 1
10. The next question is whether the promissory note is not supported by consideration. On that question, the P.Ws. state that the plaintiff paid Rs. 5,200-to defendant 1. The need for the money and the purpose to which he put the money is proved by the evidence, which has been discussed in detail by the learned Subordinate Judge. It is unnecessary that I repeat what he has said. I accept the evidence of the P.Ws. and find that the suit promissory note was supported by consideration.
11. The appeal is dismissed with costs.