1. This appeal is from the decision of Mr. Justice A.N. Ray dismissing the plaintiff's suit for enforcement of a mortgage by deposit of title deeds. The case of the plaintiff appellant is that the defendant No. 1 Nabadwip Chandra Poddar was the owner of a piece of land containing an area of 3 cottahs 3 chittacks and 30 square feet being the northern portion of Plot No. 44 of C. I. T. Scheme No. 44-B formed out of the old premises No. 1, Grey Street, Calcutta. On or about the 18th November, 1949 the plaintiff lent and advanced to the defendant No. 1 solely for the purpose of the latter's business a sum of Rs. 13.000/- repayable on demand with interest at 6 per cent per annum and as security for the said loan the defendant No. 1 deposited with the plaintiff at Calcutta the title deeds relating to the said property with intent to create security thereon. On or about the 22nd July 1951, the defendant No. 1 acknowledged in writing his liability for repayment of the said loan as also the said equitable mortgage created in favour of the plaintiff. It appears further that defendant No. 1 purported to execute a conveyance on the 17th April, 1953 in favour of the defendant No. 2 Srimati Brojo Mohini Roy Chow-dhury in respect of the said mortgaged property, and consequently the defendant No. 2 has been impleaded as a party to the suit. The plaintiff claims a decree for a sum of Rs. 15,844-13-4 pies and also for a declaration of charge in respect of the property mortgaged and a decree in terms of Order 34, Rule 4 in form No. 5 or 5-A of the Code of Civil Procedure.
2. The case of the defendant No. 1 Nabadwip Chandra Poddar is that this defendant and the plaintiff were known to each other for a long time and they jointly purchased the entire plot No. 44 of C. I. T. Scheme No. 44(B), In the matter of the said purchase the defendant entrusted the plaintiff with looking after the interest of this defendant and to get the conveyance in respect of the said premises registered in favour of this defendant and to mutate the name of this defendant in the Calcutta Collectorate. It is alleged that pursuant to this arrangement the plaintiff on behalf of the defendant got the conveyance registered in favour of the defendant and got the name of this defendant substituted in the Calcutta Collectorate and further got hold of the said conveyance from the Registration Office but did not return the same to the defendant in spite of requests and represented that the same was lost The factum of the loan and the equitable mortgageis disputed in the Written Statement and it is also denied that on the 22nd July 1951 or on any other date the defendant had made any acknowledgment in writing for repayment of the said loan or had acknowledged the said equitable mortgage. It is also stated in the written statement that the letter dated the 22nd July 1951 does not bear the signature of this defendant.
3. The defendant No. 2 has filed a separate written statement and her case is that she purchased the plot of laud which belonged to the. defendant No. 1 for a valuable consideration and prior to the completion of the sale she had made diligent enquiries as to the whereabouts of the title deeds and further she is bona fide purchaser for valuable consideration and without notice of the plaintiff's alleged mortgage.
4. The issues that were raised before the learned trial judge were as follows:
1. Did the plaintiff lend and advance to the defendant No. 1. Rs. 13,000/- or any oilier sum on the 18th November, 1949 as alleged in paragraph 2 of the plaint?
2. Did the defendant No. 1 deposit with the plaintiff at Calcutta within the jurisdiction aforesaid title deeds relating to the property mentioned therein with intent to create security, thereon as alleged in paragraph 2 of the plaint?
3. Did the defendant No. 1 acknowledge in writing any liability as alleged in paragraph 3 of the plaint?
4. Is the defendant No. 2 a bona fide purchaser for value without notice of the mortgaged property?
5. The learned trial judge has answered the issues Nos. 1, 2 and 3 in the negative and the issue No. 4 in the affirmative.
6. The findings of the learned trial judge have been challenged before us.
7. The evidence of the plaintiff who deposed before the learned judge is that a sum of Rs. 13,000/- which was lent and advanced to the defendant Nabadwip Chandra Poddar was taken by him from his mother and advanced to the defendant No. 1. His mother had sold some of her ornaments and this Rs. 13,000/- represented the sale proceeds of the ornaments. Two cash memos have been disclosed which are dated the 3rd June, 1949 and the 7th June, 1949 and they show that the ornaments had been sold to one Mahitosh Sen, a jeweller, and two sums of Rs. 628579/6 Pies and Rs. 6080/15/6 pies were realised by such sale. The total of these two figures is Rs. 12,366/9/0 pies. It is not very clear from the evidence how the balance of Rs. 13,000/- was made up but the evidence is that the whole of Rs. 13,000/- was taken from the mother (plaintiffs questions 73,75 and 79). So it is possible that the mother had also the balance of Rs. 633-7-0 pies in her hands besides the two sums realised in June, 1949 from Mahitosh Sen. This sum also perhaps represented the sale proceeds of some other ornaments which had been sold by the mother. It has been argued on the basis of answer to question 73 that if the proposal for loan was made and then the mother's ornaments had been sold, it is improbable that the loan would be actually advanced in November, 1949, that is, about5 months after the sale of the ornaments. The answer to question 73 may be set out hereunder:
'This sum of Rs. 13.000/- which was lent out by me to Nabadwip Babu was from the sale proceeds of my mother's ornaments. When Nabadwip Babu asked me of this money I told my mother that Nabadwip Babu was asking for a loan from me ot such and such amount. Then my mother's ornaments were sold and from the sale proceeds thereof, this sum of Rs. 13,000/- was advanced to him.'
8. This answer, no doubt, gives an impression that the proposal for loan had been made first and thereafter the mother's ornaments were sold and out of the sale proceeds the loan was advanced. But when this question about the advance of the loan was repeated in question 75 the answer that was given by the plaintiff conveys somewhat different impression. The answer is as follows:
'I told my mother that Nabadwip Babu was in need of this money and I assured her that she would get the money very. soon. Then I took the money from my, mother and handed over to Nabadwip Bahu.'
9. Then again in answer to the question which was put by the Court being question No. 79 the plaintiff gave the following answer:
'Q. Out of what money, either from your mother or from your personal funds?
A. My Lord, out of the sale proceeds of my mother's ornaments. The money Was with my mother and from that money I advanced to Nabadwip Babu.'
10. So, it is not very clear upon the state ot the evidence as to what was the correct position. The answers to questions 7S and 79, as I have stated already, give the impression that the sale proceeds of the ornaments were lying with the mother before any proposal for loan came from the defendant No. 1, and after the defendant No. 1 made the proposal for loan the plaintiff approached his mother and took the money from his mother and lent the same to the defendant No. 1. It appears to me that this is the correct position with regard to the advance of Rs. 13.000/- .to the defendant No. 1. It sounds improbable that it is only for the purpose of advancing a loan to Nabadwip Chandra Poddar that the mother would readily agree to sell her personal ornaments. The more likely state of affairs is that the ornaments had for some reason or other been sold previously and the money was lying in the hands of the mother and as soon as the plaintiff approached the mother with the proposal of the loan the defendant No. 1 had made to the plaintiff and the mother was assured that the loan would be repaid within a short time, she agreed to make over the money to the plaintiff. The plaintiff's evidence further is that he advanced this sum of Us. 13,000/- in cash, but he did not take any receipt from the defendant No. 1 nor is the loan or advance entered in his books of account (Qq. 71, 72 and 77). It is, however, clear that the plaintiff and the defendant No. 1 were known to each other for a long time and were friends and they were also living in the same house in Calcutta. So it is possible that because of this intimacy existing between the plaintiff and the defendant No. 1, no receipt had been taken and as the money belonged to themother, no entry was made in ihe books of account of the plainttff. But it must be admitted that it does appear as somewhat unusual that a large amount like Rs. 13,000/- would be parted with and no receipt or other acknowledgment is taken from the borrower. One would expect that some writing would be taken from the defendant No. 1 and would be kept with Jhe mother or with the plaintiff. However, the fact remains that no receipt was actually taken.
11. The crucial question, however, in this caseis whether the letter dated 22-7-1951 was signedby the defendant No. .1. The evidence of the plaintiff on this point is to be found in answers to Questions 34 to 41. The plaintiff has stated that thisdocument was signed by the defendant Nabadwip' Chandra Poddar In his presence at No. 3, Baisnab Seth 1st Lane, and an employee of the defendant No. 1 was also present at the time. With reference to certain initials purporting to be that of the defendant No. 1 which appear in this document, the plaintiff has stated that these initials were also put by the defendant No. 1 Nabadwip Chandra Poddar. His evidence further is that although the rate of interest that was previously agreed upon was 8 per cent, Nabadwip Babu suggested reduction of the rate to 6 per cent and that is why an alteration was made in this letter dated 22-7-1951 (Ex. D), and the defendant No. 1 put his initials against that alteration. The evidence of the defendant No. 1 with regard to this Ex. D is contained in answers to Questions 14 to 20, and they may be set out here-under:
'14. Q. Look at this document dated 22-7-1951, does it bear your signature or your writing anywhere?
A. No, the signature or the initials are not mine.
15. Q. In the letter the signature appears there that is not yours?
A. The signature does not appear to be mine. I have suspicion.
16 Q. Do you remember of your sighing this document at any time?
17. Q. You have suspiction that this is not your signature?
A. My Lord, it is not my signature.
18. Q. Why have you not said so?A. My Lord, I say it is not my signature.To Counsel:
19. Q. Would you kindly look into the initials of the letter? Does it appear to be your handwriting?
A. No, not my handwriting.
20. Q. Will you kindly look at the word 'so' in the last paragraph of that document, is it your handwriting?
A. No.' '
It may be noted at this stage that the answers that the defendant No. 1 gave with, regard to the letter are at times halting and are not quite strightfor-ward and frank answers.
12. The learned trial judge has made a comparison of the signatures appearing in this letter,Exhibit D, with the other admitted signatures ap-pearng in various other documents, and his conclusion is that Exhibit D does not bear the genuine signature of the defendant No. 1. It may be pointed out that no handwriting expert was called in this case, and the finding of the learned Judge is arrived at relying on hi eye test & also on certain circumstantial evidence of which reference has been made in course of the judgment. This procedure of deter-mining the question of genuineness of disputed signatures or writings relying solely on the eye test of the Judge himself and unaided by evidence of' experts or arguments of Counsel has been deprecat-cd in certain cases of this Court as also of other Courts. It is sufficient to refer to one of such cases reported in Sarojini Dassi v. Haridas Ghose, 26 Cal WN 113: (AIR 1922 PC 12) where it has been pointed out that a comparison of handwriting is at all times, as a mode of proof, hazardous and inconclusive and especially when it is made by one not conversant with the subject and without such guidance as might be derived from the arguments of Counsel and the evidence of experts. A comparison of writings has consequently been deemed a mode of ascertaining the truth which ought to be used with very great caution. This decision deals in some detail with some of the relevant cases on the point and it will be useful if some of the observations made by Sir Asutosh Mookerjee in that case are set out below:
'It is a fact well known and may be readily verified that no two signatures actually written in the ordinary course of writing them are precisely alike. The character of a person's signatures is generally of uniform appearance, and the resemblance between one and another signature of the same person is thus apparent, but the coincidence is seldom known where a genuine signature of a person super-imposed over another genuine signature of the same person is such a facsimile that one is a perfect match to the other in every respect. There is generally diversity in the makes of the pen, the size of the letter, the level of the signature and space it occupies, that stands as a guard over the genuine signature and characterises it as the true signature. But as was observed by Coleridge, J. in Doe v. Suckermore, (1837) 5 A & E 703 the test of genuineness ought to be the resemblance not to the formation of letters in some other specimen or specimens but to the general character of the writing which is impressed on it as the involuntary and unconscious result of constitution, habit or other permanent cause and is, therefore, itself permanent'. Although these observations were made in the judgment indicating that a comparison is permissible in appropriate cases, it is worthy of note that the learned Judges did not base their conclusion solely on the similarity of the signatures as appearing from a result of the comparison of the different signatures hut they based their conclusion relying on certain direct and circumstantial evidence which had been adduced in that case.
13. We have ourselves scrutinised the different signatures and our personal examination and comparison of the different signatures reveal that the general appearance in the admitted signatures and the disputed signature is the same. There is a striking similarity between the disputed signatureand the admitted signatures. If is true that a clever forger will try to give the forged signature as much resemblance as possible of a genuine signature. But the personal characteristics of the writings or signatures of a particular individual are often an unfailing guide in determining the question of genuineness of the writing, and it is often a difficult work for a stranger or a forger to reproduce faithfully all such characteristics in the writings forged by them. Excepting Exhibit C where the signature appears to be slightly different in its appearance, a comparison of the other signatures presents a very striking resemblance between the disputed signatures and the admittedly genuine signatures. The signatures in Exhibit 7 series which were written out at the time of the hearing when the defendant No. 1 was in the witness box cannot be regarded as very reliable because it is the general rule that a signature madefor the occasion post litem motam and merely for use- at the trial ought not to be taken as a standardas it is likely to be simulated. It may, however, be compared with the genuine Writing for all that it is worth. It may also be pointed out at this stage that the signature in Ex. C appears in a document which is of the year 1949 and it is possible that as the defendant No. 1 used to sign in a different manner two years before, that is why there is difference between that signature and the subsequent signatures. What strikes us as the peculiar characteristics about the signature of defendant No. 1 is that the letter 'P' in 'Poddar' is not always uniform. In some signatures there is a tail in 'P' and in some it is absent. There is a peculiar loop in the letter 'w' of 'Nabadwip' which is present in practically all the signatures though in varying degrees. The letter 'Ch' in 'Chandra' in its formation appears to be similar in all the signatures. There is some amount of tremor or laboured writing discernible in all the signatures. The signatures do not appeal to be written with a firm hand or an easy hand. These are some of the individual characteristics of the signature of defendant No. 1 which lead us to hold that the disputed signature in Ex. D is the genuine signature of defendant No. 1.
14. The learned counsel for the appellant relied on Section 73 of the Evidence Act and he has also drawn our attention to several cases to show that it is permissible for the Court to compare disputed signatures with the genuine signatures and to draw its own conclusions therefrom, even though unaided by evidence of the experts. Reference has been made to , Manindra Chandra v. Mahaluxmi Bank Ltd. , Madhavayya v. Acham-ma paragraph 30 of the judgment; : AIR1957Cal92 , Fazuluddin v. Panchanan and a few other cases, but I do not think it necessary to deal with them at any length.
15. Coming back to the letter Ex. D it is to be noted that it contains some typing mistakes in spellings and there are also certain traces of alterations in the body of the document and such alterations purport to be initialled by defendant No. 1, If the document is a forged one, one would expect [ that such a document would try to avoid alterations as much as possible and it would also try to avoid initialling as much as possible inasmuch as the more there is initialling the more is the risk of detection of the forgery. So the fact that there are alterations and those purport to bear initials of defendant No. 1 indicates that the document is genuine. I have pointed out already with reference to the evidence of the plaintiff that according to the plaintiff interest was agreed to be paid at the rate of 8 per cent previously, but subsequently at the request of the defendant No. 1 it was reduced to 6 per cent. This letter Ex. D also bears some evidence of this fact. It appears that the rate of interest has been corrected and 6 per cent has been substituted.
(Paras 16 to 20 Omitted as they do not contain any point of law).
21. As regards the defence set up by the defendant No. 2 it is to be pointed out that the evidence of Mahendra Kumar Roy Chowdhury the husband of the defendant No. 2, as contained in answer to question 8 to the effect
'I used to know .the plaintiff, I had some suspicion and I approached the plaintiff and enquired of him as to whether the title deeds were with him. The plaintiff said that they were not with him,' does no.t appear to us to be acceptable. The fact remains that the title deeds have been produced from the custody of the plaintiff and they were with the plaintiff at all material times. So if Mahendra Kumar Roy Chowdhury had really approached the plaintiff and had made any enquiry about the title deeds the plaintiff would naturally be eager to know the reasons for Mahendra's enquiry and if the reasons had been disclosed the plaintiff would readily admit the custody of the title deeds to safe-guard his interest. It appears to us that what the plaintiff has stated in answer to question 155 which was put to him, is true. Then again the fact that the defendant No. 2 purchased the property at only Rs. 10,000/- for which the defendant No. 1 had paid Rs. 33.500/- shows that the defendant No. 2 was making an unusual bargain and the reason for this must have been the non-availability of 'the original title deeds. This is apparent from the fact that the defendant No. 1 was compelled to make a declaration before the Presidency Magistrate stating that the original title deeds had been lost, as the defendant No. 2 was not satisfied with the non-production of the title deeds and so she got this declaration to be made by the defendant No. I. But the defendant No. 2 never took the precaution of issuing a public advertisement about the loss of the title deeds in any newspaper. If she had done so the plaintiff might have brought the factum of the equitable mortgage to the notice of the defendant No. 2 before she purchased the property. It is also clear that the plaintiff cannot be said to have been guilty of any laches or any act of negligence which disentitles him to obtain priority in respect of his mortgage. It has been suggested that the transaction between the defendant No. 1 and the defendant No. 2 is a mortgage by conditional sale (Mahendra -- Q. 9). But the conveyance which was executed by the defendant No. 1 in favour of the defendant No. 2 lias been exhibited in this ease, and it appears tbprefrom that it purports to be one of absolute sale. It is in evidence that the defendant No. 2 has got back Rs. 8.000/- from the defendant No. 1 out of Rs. 10,000/- paid as consideration for the same.So at the most the defendant No. 2 can claim only a charge for the unpaid balance of Rs. 2.000/- on the property. She cannot get the property by pay-Ing only Its. 2,000/- as the consideration, when the agreed consideration for the sale was Rs. lO,OOO/-. Our attention was drawn to the case of Lloyds Bank Ltd. v. P.E. Guzdar and Co. : AIR1930Cal22 and the learned counsel for the appellant contended on the strength of this authority that the plaintiff is entitled to priority in respect of his mortgage as against the defendant No. 2 who claims to be the purchaser of the property. But the principle of this case cannot strictly apply to the case before us which is not a case ot competi-tion between two mortgagees, and Section 78 of the Transfer of Property Act is not attracted to this case. In the case before us the competition is between a mortgagee by deposit of title deeds and a subsequent purchaser. It appears to us that the principle embodied in Section 48 of the Transfer of Property Act is applicable to this case. Section 48 may be set out hereunder:
'Where a person purports to create by transfer at different times rights in or over the same immovable property and such rights cannot all exist or be exercised to their full extent together, each later created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously created'.
In AIR 1934 Oudh 283, Sitaram v. Rajnarain, Rachpal Singh, J. and Smith, J. have held that the question of priority between a mortgagee and a subsequent purchaser is governed by Section 48 of the Transfer of Property Act and the purchaser is not protected by the provisions of Section 41 of the Transfer of Property Act when there is no proof of negligence on the part of the mortgagee. Reference may also be made in (his connection to a decision of the Nagpur High Court reported in AIR 1931 Nag 144, Narayan v. Purushottam where it is held that Section 41 of the Transfer of Property Act does not apply to the case of a purchaser of an equity of redemption. The person who purchases equity of redemption cannot repudiate his liability under a mortgage even if he purchases without notice of the mortgage because there is no law which obliges the mortgagee to give notice of the mortgage to the whole world. So having regard to these propositions it is clear that the defendant No. 2 cannot in any event get priority over the claim of the pla;ntiff as mortgagee. The charge of the defendant No. 2 for Rs. 2,000/- is subject to the plaintiff's mortgage.
22. For these reasons, we think that this appeal should be allowed, the judgment and decree of the learned trial Judge should he set aside, and there will be the usual preliminary mortgage decree for accounts in favour of the plaintiff. The respondents will pay the appellant the costs of this appeal. So far as the costs of the trial court are concerned, each partv will hear his or her own costs. Certified for two Counsel,
P.B. Mukharji, J.
23. I agree.
24. It is necessary, however, to add a few observations on the law of proving the identity of disputed authorship of a handwriting by the method of comparison, and the Court's duty and function with regard to such proof by comparison.
25. It is vital in. this appeal because the decision rests on the answer to the question whether the letter of 9-7-1953 was signed by Respondent, Nabad-wip Chandra Poddar, This disputed letter marked Exhibit D contains the clearest admission and acknowledgment of the mortgage by deposit of title deeds, the major, if not the real sole issue in this appeal. If the answer be Aye, the appeal succeeds and if it be Nay, the appeal fails.
26. Justice is said to be blind. A hoary tradition of immemorial antiquity has made proverbial the now familiar picture of the ideal judge with bandaged eyes. We are urged by the learned counsel for the appellant to hold that this means that a Judge left to himself cannot use his own eyes, and that he can only use his eyes provided light chooses to descend upon them from the scintillating evidence of a handwriting expert or from the etlulgent brilliance of the arguments at the Bar. Bespectacled as most judges are, some of their opthalmic deficiencies are patent indeed, but I do not think they make the judges that blind as the argument contends. The virtue of judicial blindness has been overemphasised and misunderstood.
27. The high statutory water-marks on this point are to he found in Ss. 45 and 73 of the Evidence Act. Neither of these two statutory provisions makes the Judge blind so as to forbid him to use his own eyes without the aid of handwriting experts. Section 45 of the Evidence Act provides:
'When the Court has to form an opinion upon a point of *** identity of handwriting, the opinions upon that point of persons specially skilled * * * in questions as to the identity of handwriting * * * are relevant facts. Such persons are called experts'.
28. Section 45 of the Evidence Act, therefore, shows that the opinion of a handwriting expert on the identity of handwriting is a relevant fact and that such a person who is specially skilled is an expert. Apart from saying that the opinion of such a handwriting expert is a relevant fact, it does not proceed to prevent the Judge from using his own eyes to see or examine the identity or otherwise of the handwriting in question.
29. Section 73 of the Evidence Act speaks of the comparison of disputed signatures with admitted or proved signatures. It provides:
'In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal, admitted or proved to the satisfaction of the Court to have been written or made by that person, may be compared with the one which is to be proved although that signature, writing or seal has not been produced or proved for any other purpose.
The court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person'.
My reading and interpretation of Section 78 of the Bri-dcnce Act as a whole lead me to conclude that this comparison mentioned there can and is intendedto be made by the Court. In fact, the words 'forthe purpopse ot enabling the Court to compare'leave little room for doubt on this point. To mymind it makes no material difference in this inter-pretation on the ground that these words appear inthe second paragraph of Section 73 of the Evidence Actdealing with the Court's power to direct a person(sic) Court to write for the purpose ot comparison because the Court to he permitted to compare in such case and not in any other such as mentioned in the first paragraph of that section will beto make an unreasonable distinction. The followingobservations of Sir Ashutosh Mookerjec, J. in 26 CalWN 113 at p. 119: (AIR 1922 Cal 12 at p. 17)noticed the significance of these words:
'The section does not specifically state by whom the comparison may be made, though the second paragraph of the section dealing with a related subject expressly provides by way of contrast that in that particular connection the court may make the comparison'.
30. While the statute did not make the Judge blind, some of the learned Judges have preferred to invoke self-induced blindness. The law on this point has oscillated between, severe criticism of the hand-writing experts who had been condemned as talking in terms of pseudo-science on a subject which is not science, such as, pen pressure, pen cope, pen pause, pen presentation, pen lift, hand movement, joinings, pivotal change, under-stroke, cross bar and loops of many kinds and whom Judges have described as available on hire to speak in favour of the party who has paid them as per Jcssel M. R. in Lord Abinger v. Ashton, (1873) 17 Eq 358 at pp. 373-4, and on the other the judicial attitude that whenever there is a disputed question in respect of handwriting, it is dangerous and unwise for the Judge to use .his own eyes without the evidence of the handwriting expert.
31. As I read the case law and the sections I am unable to subscribe to the view of judicial blindness that a Court is prevented by law to use its own eyes either in addition to handwriting expert's evidence on the point or even in the absence of such expert evidence on the point.
32. The following observations of Lord Atkin in Kessarbai .v. Jethabhai Jivan AIR 1928 PC 277 at p. 281 have been sorely misused to support this theory of judicial blindness without the light of the handwriting experts:
'But their Lordships are unable to come to the same conclusion as the members of the Appellate Court. They would have thought it unsatisfactory and dangerous in any event to stake a decision in such a case as this on the correct determination of the genuineness of the signature by mere comparison with admitted signatures, specially without the aid in evidence of microscopic enlargements or any expert advice'.
This has been taken to be the expression of the view that a Court must never use its eyes to compare signatures without either the aid of the microscope of the expert's advice. The observations, however, do not support that view. What is almost always missed in the subsequent decisions based on this view is the observation of Lord Atkin himself which immediately follows the passage which I have quoted above, and which shows that then Lordships ot the Privy Council in that very case itself themselves-compared the signatures. That will be evident front the next observations of Lord Atkin on the same page of the report:
'But their Lordships have also themselves carefully compared the endoresements with the admitted signatures, and they are unable to feel the certainty which was expressed by the Chief Justice-Tho signatures appear to be written with different ink and possibly at different tunes, and though the-purported signature of the firm bears a close resemblance to some of the genuine examples produced, notably to a signature in a letter of authority addressed to Jethabhai himself the purported signature of Keshavlal himself is by no means convincing'.
We have also in this case very carefully compared the disputed signature on the letter of 22-7-1951, Ex. D with other admitted signatures of Nabadwip-Chandra Poddar. We have borne in mind that the signatures which Nabadwip Chandra Poddar was made to write in court before the learned trial Judge are not good guides because such signatures, in court as command performances are always deliberate and conscious and therefore their value as test or standard for comparison is very limited. There are, however, fortunately many other admitted signatures signed in the usual course by Nabadwip Chandra Poddar and some of which are ante litam motam. My learned brother has already given the reasons for holding that there is similarity between those admitted signatures and the disputed signature on Ex. D. There are at least six. different reasons to support our conclusion that the signature on the disputed letter Ex. D is the real signature of Nabad-wip Chandra Poddar. They are:
(1) The striking general similarity between these signatures with the signature on the disputed letter. This is a very telling test adopted in the decision of a Special Bench of the Calcutta High Court in Jitendra Nath v. Emperor, AIR 1937 Cal 09 at page 119.
(2) The letter 'w' has exactly the same peculi-arity in almost all the signatures and in particular, 'lie upper loop looking like 'e' at the second upstroke of 'w'.
(3) The letter 'p' of 'Nabadwip' almost invariably has the loop not always on the top.
(4) The usual spelling of Poddar with 'ar' is absent and it is uniformly spelt in all the signatures with the unusual spelling of 'er'',
(5) The letter 'C' of 'Chandra' has a striking similarity in almost all the signatures, and
(6) All the signatures are characteristic of a person unfamiliar with English alphabets which go a long way to show that the person signing the disputed letter was the real Nabadwip Chandra Poddar who admittedly on the evidence was not familiar with the English language.
33. The well-known observations of Jenkins, C. J. in Barindra Kumar Ghose v. Emperor, ILR 37 Cal 467 on this point have been quoted repeatedly in support of :the theory that a Judge must remain blind and not use his eyes except by the light of the handwriting expert on the argument of thecounsel. The observations which Jenkins, C. J. made in that case are as follows at page 503:
'I cannot think this was a proper course to pursue; a comparison of handwriting is at all times as a mode of proof hazardous and inconclusive, and especially when it is made by one not conversant with the subject and without such guidance as might be derived trom the arguments of counsel, and the evidence of experts. In Phoodee Bibee v. Govind Chunder Roy, (1874) 22 Suth WR 272 it was said by the Court that a comparison of signature is a mode of ascertaining the truth which ought to be used with very great care and caution''.
34. These observations again, I do not find, impose blindness on the Judge. They do not support the view that the Judge cannot use his own eyes without the aid of the handwriting expert. What is said here is that it is a 'hazardous and inconclusive' course and that it should be used only with 'very great care and caution'. What was intended to be a rule of salutary caution is now attempted to be converted into a rule of law. It is against this conversion, I protest.
35. The inconclusive nature of such comparison was also emphasised by the Supreme Court in the following observation of Venkatarama Ayyar J. in Kishore Chandra Sing Deo v. Ganesh Prasad Bhagat, : 1SCR919 :
'But conclusions based on mere comparison of handwriting must, at best, be indecisive and yield to the positive evidence in the case'.
Here again I do not read the Supreme Court's observations to mean that the Court cannot compare the signatures without the handwriting expert. These observations of the Supreme Court repeat the views of Lord Atkin and Chief Justice Jenkins which we have noticed above, namely, that mere comparison is never conclusive and is almost always indecisive.
36. A reference was made at the Bar on behalf of the appellant to the decision of : AIR1957Cal92 where a Division Bench of this Court at page 93 observed as follows:
'I think it proper to mention also that I am unable to agree with the view which found favour with Guha, J., that the learned Judge was wrong in comparing the signature on Ex. 1 with the admitted signature of the defendant on other documents. 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'.
These observations are really against the view that a Judge should not use his own eyes to compare signatures or handwritings. In this case also Nabadwip Chandra Poddar denied his signature on Exhibit D but the plaintiff has equally said in evidence that it is not only the signature of Nabadwip Chandra Poddar but also that Nabadwip Poddar signed it in plaintiff's presence. That being so, the learned trial Judge was right in using his own eyes in deciding whether the evidence that has been given as regards the genuineness of the document should be believed or not in terms of the observation quoted above even though such evidence was not the evidence of experts. That portion of the above observation which says --
'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'
does not help the appellant on the facts and evidence in this appeal. When there is no evidence before the Court on the genuineness of the signature the court cannot certainly invent the question and then make a finding thereupon. But where there is evidence and in all cases of disputed signatures there is evidence on one side or the other, even though such evidence may not be the evidence of an expert, the Court certainly can and it is its duty to use its eyes to compare the disputed signature with admitted signatures. The Privy Council did it not only in the case of AIR 1928 PC 277 which I have already mentioned but also in its subsequent decision in . There also as in the present appeal before us no expert evidence was adduced to prove the genuineness of the handwriting but nevertheless Sir Madhavan Nair observed at page 329 of the report:
'After carefully examining the various signatures, their Lordships are not satisfied that the disputed signature does not look like the accepted signatures of the deceased''.
The Privy Council similarly was 'strongly impressed' by comparison of signatures in as per observations of Lord Thankerton at p. 483 (of Cal WN): (at p. 107 of AIR) on Section 73 of the Evidence Act and comparison of signatures thereunder.
37. On the interpretation of the relevant sections of the Evidence Act and on a review and examination of the case law on the subject, I am satisfied that there, is no legal bar to the Judge using his own eyes to compare disputed signature with admitted signatures even without the aid of any evidence of any handwriting expert. There are also other reasons to support this conclusion. What happens in those cases of disputed signatures where neither parry calls any handwriting expert or where no handwriting expert may be available as in some of the courts in the districts? Is the Judge bound to call a handwriting expert as a court witness? He can do so if he wants to. But I do not think he can be forced to do so or that he is obliged to do so, if he feels that he can on the evidence of other witnesses on the point and by comparison of signatures come to his own conclusion on the point, so long as the court bears in mind the caution that such comparison is almost always by its nature inconclusive and hazardous. That is why apart from such comparison we have considered other cogent and compelling circumstantial factors in this appeal in coming to the conclusion of genuineness of the disputed signature. Secondly, Law Reports are replete with cases where handwriting experts have been called only to be disbelieved by the Court, I have therefore never understood why the Judge cannot be allowed to use his faculty of vision without first receiving light from the evidence of the handwriting expert unless it is oddly suggested, that Court has a duty to be first misguided by handwriting expert in order to enable it to come to a right decision on the disputed signature, it is wrung in this context to think in terms oi the legal cliche that when the judge compares the signatures he acts or gives evidence as a handwriting expert witness. He does not. The evidence of the expert is really evidence only in name because it is not the evidence of a fact but the evidence of an opinion. It is the Judge's duty to express his opinion on every disputed question before him, including the question of disputed Signature. In giving that opinion therefore he does not give evidence as an expert witness but discharges his legal duty to decide a depute by expressing that opinion.
38. I am, therefore, unable to accept the theory of judicial blindness curable and redeemable only by the light of the handwriting expert. 1 do not conceive justice in that sense is blind or should be blind. Physiologically the opticians tell us that every one has a blind spot. So indeed have judges. But that need not make them any more blind than they must be by nature's ordinance. Indeed, pitifully enough justice is not always all-seeing as it should be and no one is more conscious than the Judges themselves of the limitation of their vision. The judicial lights are no longer the pole star to guide the erring steps of the benighted pilgrims in the present wilderness in the Rule of law. But never theless I am reluctant to extinguish and take away from the eyes of the Judge, that still small flickering light, that remnant of a fading vision, although I confess much bas gone out of those discerning eyes ever since Gilbert and Sullivan sang the Lord Chancellor's song in lolanthe to say:
'The law is the true embodiment of everything that's excellent It has no kind of fault or flaw And I, my Lords, embody that law.'
39. With these observations, I agree that the appeal should be allowed with costs as my learned brother has proposed.