Anantakrishna Ayyar, J.
1. This second appeal raises a somewhat important question relating to the construction of Section 67, Evidence Act. The original suit was instituted by the plaintiff for a declaration that he is the owner of the lands in suit, that the defendants had no occupancy rights, that the defendants were in possession as lessees under the plaintiff and for the recovery of possession of the land with mesne profits. The defendants pleaded that they were entitled to occupancy rights in the suit lands, that the plaintiff was not entitled to eject them, and that the plaintiff was entitled only to recover a rent of Rs. 10 per annum and not any mesne profits.
2. To prove the contention of the plaintiff, the plaintiff put in Ex. M, a muchilika alleged to have been executed by defendant 1 to Ramaswami Iyer, the plaintiff's vendor, on 2nd August 1893. Defendant 1 denied having executed Ex. M. He is a marksman, not able to write his name. Ex. M purports to have been executed by defendant 1 and to have been attested by two witnesses, (1) Subbaraya Ayyan and (2) Srinivasa Iyer, and purports to have been written in the handwriting of Nanjundayyan, who purports to have signed the document as writer of the same. Attesting witness Srinivasa Iyer was reported to be dead. The writer Nanjundayya was stated to have 'joined an itinerant mutt' and to be beyond the process of the Court, and his whereabouts were not ascertainable and consequently he was not available as a witness. The other attesting witness Subbaraya Ayyan was examined as P. W, 10. He admitted his signature but denied having seen the executant execute the document. In a prior suit O.S. No. 1570 of 1912, between the same parties, this witness Subbaraya Ayyan was examined as a witness when he deposed to his having attested this muchilika and to the executant having executed the same in his presence. To prove the signatures of these attesting witnesses, certain other witnesses were examined who swore that they were familiar with the signatures of the witnesses to Ex. M and that the signatures in the document Ex. M were the signatures of Srinivasa Iyer and Nanjundayyan, the attesting witnesses to Ex. M. In these circumstances the lower Courts found that execution of Ex. M by defendant 1 was proved, and they took into account Ex. M in deciding the merits of the dispute between the parties.
3. The question is whether they were entitled, in law, to do so. It is clear that the prior deposition of the attesting witness Subbaraya Ayyan, P.W. 10, in a case between the parties to the present suit could not be utilized as substantive evidence in the present case. If the witness be dead, his prior depositions would be relevant and admissible under Section 33, Evidence Act, since the prior judicial proceeding was between the same parties and the adverse party in the first proceeding had the right and opportunity to cross-examine him, and the question in issue was substantially the same; but Section 33 could not apply to the present case, because the witness is not dead, but on the other hand is alive, and was in fact examined in the present suit as P.W. 10. His prior deposition accordingly is not available as substantive evidence, but could only be utilized to contradict or corroborate his present statements, under Sections 155 and 157, Evidence Act.
4. In his present deposition he denied having seen defendant 1 execute the document, even though confronted with his evidence to the contrary in the prior suit. He admits having signed Ex. M as an attesting witness. He does not know the signatures of the other attesting witnesses. The signatures of other attesting witnesses, however, had been proved by some witnesses examined in the suit who were familiar with the writing and signatures of those attesting witnesses. In these circumstances, was it legally open to the lower Courts to find the document Ex. M legally proved? If the above constitute legal evidence of the execution of the document by defendant 1, then the question whether the lower Courts were justified in giving credit to the same and having believed the said evidence in the circumstances is not one for ma since in second appeal I am bound by the appreciation of the evidence in the case by the lower appellate Court. I can interfere only if there be no legal evidence on which the lower Courts could have come to that conclusion. As already remarked Ex. M is a muchilika purporting to have been executed by defendant 1 in favour of plaintiff's vendor. He being illiterate and unable to sign his name the writer, Nanjundayyan has written in the document 'mark of Chellappa Goundan'; the document also bears the signatures of the attesting witnesses, each of whom signed his name with the addition of the words '' I know.' The writer also has signed the document expressly stating that he was the writer of the same. If defendant 1 has written his name by way of signature, in the document, then it would have been open to the Courts to compare other signatures of his (admitted or proved), with the signature in the disputed document; but defendant 1 being a marksman has not written his name in Ex. M.
5. No doubt signature' generally includes 'marking' in cases where the person concerned is unable to write his name; but how to prove execution by a marksman when he denies the same? Could it be done only by the evidence of the attesting witnesses or strangers who are able to say that they were present and saw the executant put his mark, or who speak to the admissions made by the executant about his having executed the same. The document in question is not one which is required by law to be attested, though as a matter of fact three witnesses have attested the document as witnesses (two as witnesses, and the third as writer, and possibly also as a witness, as stated by the lower appellate Court). Supposing the witnesses are all dead, or have proved hostile, or are not available, and the Court is satisfied on independent evidence before it that the writing of the document is that of the writer and that the signatures on the document are the signatures of the attesting witnesses, is it open to the Court in these circumstances to presume that the document was properly executed, though the executant denies execution and denies having put his mark, when there is no direct evidence of any person examined in the case who is able to swear that the executant put his mark to the document. Section 90, Evidence Act, does not apply to the present case, because the document was not 30 years old at the time it was sought to be put in 1921. There is no question about the identity of the alleged executant of Ex. M with defendant 1.
6. Section 67, Evidence Act, is to the following effect:
If a document is alleged to be signed or to have been written wholly or in part by any person, the signature of the handwriting or of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting.
7. Under Section 3
a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
8. Under Section 5
evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.
9. Under Section 114
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 find private business in their relation to the facts of the particular case.
10. In those circumstances it was argued for the plaintiff that Ex. M was properly held by the lower Courts to be proved. My attention was drawn to the decision of the Bombay High Court in the case reported in Abdulla Paru v. Gani Bai  11 Bom. 690, where Farran, J., in a case where the alleged executant of a deed of conveyance (who was a marksman) denying over having executed the document or having put the mark on it, and all the attesting witnesses were dead, but a witness was called who knew the handwriting of one of the attesting witnesses and who swore that the signature of that witness to the attestation clause of the deed was genuine, held that the deed was admissible in evidence, and that its execution by the alleged executant was sufficiently proved. His Lordship remarked at p. 691:
Section 67, Evidence Act, enacts that if a, document is alleged to be signed... by any person, the signature must be proved to be his handwriting. This proof may, of course, be by any of the recognized modes of proof, and amongst others by statements admissible under S.. 32. The statement of the deed writer that the mark was Gannibai's is, I think, admissible under Section 32, Clause (2); see Taylor on Evidence, Section 1658.
11. The learned Judge relied on the case of Whitelock v. Musgrove 2 Cr & M. 511. In that case it was held that:
In an action upon an instrument the subscribing witness to which is dead or resides abroad it is necessary besides proving the handwriting of the subscribing witness, to give some evidence of the identity of the party who appears to have executed the instrument.
12. It appears that the promissory note in that case appeared on the face of it to be signed with 'the mark of Francis Musgrove.' The handwriting of the attesting witness was proved; but the witness who proved the handwriting of the attesting witness, and his residence in America said that he knew nothing of Francis Musgrove or of the mark:
It was stated that in Phillips's Treatise on the Law of Evidence, that proof of handwriting of the attesting witness is in all classes sufficient.
13. But the difficulty was felt where some evidence of the identity of the party sued whose name appears in the document should not be given. The Court held that it should be so. (I must here remark that there is no question about the identity of the defendant in the present case). The argument of counsel before the Court in Whitelock's case 2 Cri & M. 511 was this:
Proof of the handwriting of the subscribing witness is, in all cases where the absence of the subscribing witness is accounted for, sufficient prima facie evidence to charge a defendant. The practice has been nearly uniform, and it is founded on the rule, that, on proof of the handwriting of the subscribing witness in such case, everything must be presumed to have been rightly done, and a fraud must not be imputed without some evidence of it, which should come from the other side (Bayley, B, interrupted. We do presume that everything was done rightly. We presume that the note was signed by a person of the name of Francis Musgrove; but how does that appear to be the defendant?)
14. The only doubt entertained in that case was whether any and what evidence should be let in about the identity of the defendant. All the members of the Court were agreed that in cases where the attesting witnesses were dead or were not available, proof of the handwriting of the attesting witnesses was enough from which the High Court may come to the conclusion that the defendant executed the document. In Mitchell v. Johnson Lord 1 M. &M.; 176 Tenterden observed:
If the objection were to prevail, it would often be impossible for the obligee of a bond to recover, where the subscribing witness was dead and the obligor a marksman.
15. On proof of identity of the defendant with the person whose name appeared in the document as the executant the Court held that the plaintiff was entitled to recover against the defendant holding that the execution of the document was duly proved. As remarked by Mr. Starkie in his Law of Evidence, 4th Edn. p. 519:
The signature of the attesting witness, when proved, is evidence of everything upon the face of the instrument, since it is to be presumed that the witness would not have subscribed his name in attestation of that which did not take place.
16. In the present case the attesting witnesses have signed 'as witnesses.' Each of them also specifically noted in Ex. M 'I know' which is the usual vernacular expression corresponding to the English expression:
'executed and signed before me, and in my presence.
17. The writer also has written in the document:
This is the mark of Challeppa Goundan, executant of the muchilika.
18. The writer also subscribed himself as the writer. According to the decisions mentioned above it would seem it is open to the Courts in such circumstances to take the document as having been executed by the executant, the marksman, though he denied execution of the same, and that the above afforded legal evidence from which it is open to the Court to hold that execution was proved. It does not of course follow that in any particular case the Court was bound to believe the evidence or circumstances appearing before it in that particular case. The question is one for the Court to decide whether it is satisfied or not with the evidence. It is open to the. Court to decline to act upon the evidence and to hold that execution has not been proved to its satisfaction in particular cases. It is a question of fact for the Court to decide in each case taking into consideration all the circumstances that appear in the case. What I am now concerned with is not the question whether the Court was right in believing and acting on the evidence and circumstances in the case; but the question before me is whether the above are in law insufficient to enable the Court to come to that conclusion. If no Court could under any circumstances come to such a conclusion on such materials then I should certainly interfere with their decision in second appeal. The question is then reduced to this: Was there legal evidence before the lower Courts for their finding that Ex. M was executed by defendant 1?
19. The learned advocate for the appellant drew my attention to the case reported in Gobardhan Das v. Hori Lal  35 All. 364. There a Bench of two learned Judges had to consider a similar question. A mortgage deed was on the face of it executed in 1889 by three illiterate mortgagors who affixed their marks, and was attested by more than two witnesses. At the time of the institution of a suit for sale thereon all the executants and the attesting witnesses were dead, and the evidence tendered in proof of the mortgage consisted of (1) the statement of a witness who professed to be acquainted with the handwriting of two of the attesting witnesses. There were some other items of evidence also which it is not necessary to mention here. The Court held that having regard to Section 69 and Section 70, Evidence Act, the evidence was not sufficient to prove the mortgage in suit. At p. 367 the learned Judges observed:
It is quite clear that in England it is recognized that there is a distinction between proof of the handwriting of a parson and presumptive or other evidence that a document has been executed. The Indian law does not in a case of this kind appear to allow a party to rely on presumptive or other evidence of execution where he is unable to comply with the provisions of Section 69, either as regards the attestation of the attesting witnesses or as regards the signatures of the executants. In our opinion the evidence adduced by the plaintiff-respondents in the present case, to prove the signatures of the deed in suit, does not comply with Section 69, and we must therefore, hold that the deed has not been proved.... It appears to be a hard case, but the plaintiff respondent has himself to thank for the result. He deferred instituting the suit until all the attesting witnesses had died, knowing that the executants, who could only make marks, had made their marks on the deed. In any case he had considerable difficulty in producing proper evidence of execution.
20. If the learned Judges were not satisfied with the evidence adduced before them, and were not prepared to accept the same as satisfying them in that particular case that the document was executed by the deceased.... the alleged executants... then of course, no objection could possibly be taken to their observations. They had to be satisfied with the evidence, and no other (except the appellate authority) had any right to make any observation regarding their appreciation of the evidence before them. If however the learned Judges were of opinion that such evidence was in law insufficient to prove execution by the alleged executants and that there is difference between English law and Indian law on this point, then speaking with the utmost respect I am unable to agree with the learned Judges. The decision in Abdulla Paru v. Gani Bai  11 Bom. 690, was not brought to their Lordship's notice, nor other arguments in support of the opposite view. With reference to the observations of their Lordships that the plaintiff was guilty of delay in having waited till all the attesting witnesses were dead, it may also happen that in spite of all due deligence, the plaintiff may find the attestors to be dead though he filed the suit at the earliest possible opportunity, Further the question of the document might arise under circumstances when no laches or negligence could be attributed to the party who wants to rely on the document. In such cases the view taken by the learned Judges of the Allahabad High Court would apparently work hardship in their view of the law. The question to be considered, then, is whether the Indian law is really as was stated by the learned Judges, As observed by Carnduff J. in the case reported in Barindra Kumar Ghose v. The Emperor  Cal. 437 under the Indian Evidence Act. handwriting may, in addition to the usual methods, be also proved by circumstantial evidence, and that Section 67 does not prescribe any particular kind of proof. I do not understand that the other two learned Judges, Jenkins, C. J, and Harrington, J, took a different view on this question of law. There was difference of opinion as to the weight to be attached to the evidence and the circumstances appearing in the case,... the majority of the Court holding that the proof tendered in that case was not sufficient, while Carnduff, J. held that the proof was sufficient, But the question before me is not about the appreciation of evidence and consideration of the question whether the evidence is sufficient or not. I may also refer to the remarks of Markby, J. in Neel Kanto Pandit v. Juggobundoo Ghose 12 Bang. L.R. Ap. 18, where the learned Judge observed.
Now it is contended that Section 67, Evidence Act renders it necessary that direct evidence of the handwriting of the person who is alleged to have executed the dead must be given by some person who saw the signature affixed. But it is not so expressly stated in the section and it doss not appear to me that was the intention of the legislature. It seems to me that section merely states with reference to deeds, what is the universal rule in all cases, that the person who makes an allegation must prove it. Is lays down no new rule whatever as to the kind of proof which must be given. In that respect the rule is precisely the same as it stood before. It leaves it as before entirely to the discretion of the presiding Judge of fact to determine what satisfies him that the document is a genuine one: see also Abdool Ali v. Abdoor Rahiman 21 W.R. 429.
21. In an early English case decided on 27th November 1798, Adam v. Keer  1 Bos. & Pull 360 in a suit on a bond when one of the attesting witnesses was dead and the other was beyond the process of the Court it was held that it was enough to prove the handwriting of the witnesses that was dead to enable the plaintiff to obtain a decree on the bond Buller, J. observed:
In this case one of the attesting witnesses was dead and the other was beyond the reach of the process of the Court; the best evidence therefore which could be obtained was given (the handwriting of the attestor who was dead was given), the handwriting of the obligor need not be proved; that of the attesting witness, when proved, is evidence of everything on the face of the paper which imports to be sealed by the party.
22. In Taylor on Evidence, 11th Edn. Vol. 2, Section 1856, p. 1237 it is stated:
If the instrument be necessarily attested by more than one witness the absence of them all must be duly accounted for in order to let in secondary evidence of the execution; but when such evidence is rendered admissible, proof of the handwriting of any one of the witnesses will, in general, be deemed sufficient, provided it be accompanied by some evidence of the identity of the party sued, with the person who appears to have executed the instrument. Proof of the signature of the obligor is an obvious, though by no means the only, mode of establishing his identity.
23. In the present case, as already observed, there is no question about the identity of the person described in Ex. M as the executant. The only question is whether proof of the signatures of the attestors will in law be enough to prove execution against defendant 1. While proof of the signature of the obligor would be obvious and most convincing mode of establishing his identity yet the same is not absolutely necessary in the sense that absence of such proof of the same would entail dismissal of the suit.
24. In Taylor on Evidence, (American publication) 2nd Edn pp. 748 and 764, there are statements which support this view. It is remarked at p. 764:
We perceive no reason, assuming that a proper case for any secondary evidence was shown, why the proof of the handwriting of one witness to the deed was not quite sufficient to authorize reading the deed to the jury.
25. In Wigmore on Evidence (American Publication) there is an interesting discussion on the question whether in addition to the attestor's signatures being proved, the maker's signature or identity should also be proved. Arguments in support of both the contentions are set out, with available authorities in support of the same, at pp. 1872 and 1873, Section 1513, Vol. 2, Wigmore on Evidence. The strongest argument in favour of the position that the maker's signature also must be otherwise proved is this: a forged note to which a witness puts his name can be proved to be a genuine note simply because the witness speaks truth to his having put his signature thereto, and thus a paper false in itself might be established by proving nothing but the truth in a Court of justice. Answers to such and similar arguments are also discussed in that paragraph. The learned author concludes the discussion thus:
the preferable rule is to allow the attestor's signature to suffice, in the absence of special circumstances, which might justify the trial Court in its discretion in exacting something more.
26. All the then available learning on the point is collected by the learned author. He quotes cases where it was held:
It is not usual in such cases to prove the executant's handwriting, but where it can be done, it is safest and best to prove it.
27. It was said in another case that
the witness's signature when it is all that can be had is an equivalent of the oath of the witness; and being prima facie evidence of execution, it is not indispensable that it be followed by evidence of the handwriting of the grantor or the obligor; and that the signature of the witness with evidence of identity of the marker's name was sufficient.
28. Thus the better view in America would seem to be that when proof of the signatures of the attestors is given, it seems to be taken that they attested in the usual course of business and after execution by the executant, and after the identity of the executant is established it is open to the Courts, if they think fit to do so in the circumstances, to hold the document to be proved to have been executed by the executant. There is no rule of law which prevents them from doing so, if from the circumstances of the case, the Courts are inclined to do so. Whether in any particular case the Courts should do so or not would depend upon the nature of the circumstances in each case. While there is the possibility of the attestors colluding together and putting their signatures to a forged document, especially where the executant is a marksman and thus committing fraud on Courts, there is the other possibility of a genuine document executed by a marksman and properly attested being found to be impossible to be proved when the attestors are dead. To avoid such extreme cases on both sides, Courts have to be guided by all the circumstances of the particular cases before them. All that I am now concerned to point out is, that there appears to be no rule of law which prevents the Courts from holding the execution of a document to be proved when the signatures of the attesting witnesses had been proved to their satisfaction, having regard to all the circumstances of the case.
29. In Joshua Hands v. Herbert James 2 Comyns. 531 it is stated:
in case the witness be dead, the proof must be circumstantial, and here are circumstances: (1) three witnesses have set their names, and it must be intended that they did it regularly; (2) one witness was an attorney of good character, and may be presumed to understand what ought to be done, rather than the contrary.... It being a matter of fact, was proper to be left to them (jury).
30. In Harris v. Knight  15 P.D. 170, Law Reports (by two Judges to one, a profitable case for study) Lopes L.J., said:
The inference to be drawn in cases of this kind depends upon a number of circumstances peculiar to the cases in which they arise, and the presumption omina rite esse acta applies with more or less force according to the circumstances of each case: see p. 181 of the Report.
31. The English cases support the view taken by the lower Courts in the present case. As i found in the American text books a full discussion of the question raised before me and as they furnished answers to the arguments raised before me, I thought it convenient to refer to the same. I am, therefore, of opinion that the lower Courts were entitled to hold in this case, if they so chose, that Ex. M was executed by the defendant.
32. If Ex. M be proved, then the finding of the lower Courts on the question of kudivaram rights is not open to be attacked in second appeal. In para. 2 of the lower appellate Court's judgment, it remarked:
obviously, if the muchilika (Ex. M) is a genuine document, the appellants are out of Court.
33. Again in para. 5 it is stated that
this finding (that Ex. M is a genuine document) by itself is sufficient to dispose of the appeal; but I think it desirable to deal briefly with the appellants' positive assertion that they were in possession of the land as occupancy ryots.
34. Then various circumstances are mentioned. Ex. M is also referred to, and the lower appellate Court wound up the discussion as follows:
Agreeing, therefore, with the lower Court, I hold that the appellants have never acquired the status of occupancy ryots.
35. Both the lower Courts have mentioned various circumstances from which it was open to them to arrive at that finding. I am not in a position to interfere with the same in second appeal.
36. The last contention raised by the learned advocate for the appellant was as regards the amount of subsequent mesne profits. This question was not specifically raised in the lower appellate Court. Prima facie the amount of mesne profits for the years prior to the filing of the plaint would represent the amount of mesne profits for the years after the suit also, in the absence of any special circumstances. No such special circumstances having been proved, I cannot interfere with the lower Court's decree in this respect either. The result is that the contentions raised by the learned advocate for the appellant fail and the second appeal is dismissed with costs of the respondents (one set).