1. This is an appeal by the defendants in a suit for recovery of money due on a settlement of accounts. It appears that there were sale and purchase transactions between the firms of the plaintiff and defendants. The case for the plaintiff is that upon adjustment of accounts to the end of the year 1964 (Sambat) Rs. 10,049-15 were found due from the firm of the defendants (Ganga Ram and Moti Ram) to the firm of the plaintiff (Luchi Ram Kishen Lal), and that thereafter payments were made, with the result that at the date of the institution of the suit, a sum of Rs. 7,900 was payable to the plaintiff by the defendants jointly. The defendants, who are brothers, filed separate written-statements. The first defendant stated that he had separated from his brother and had made, on his own account, a payment of Rs. 1,200 to the father of the plaintiff on the 15th July 1908, in consideration, whereof the latter had agreed to release him, from all liability on account of the transactions mentioned. His defence in substance was that there was no came of action against him. The second defendant admitted liability to the extent of Rs. 4,669-9-9. The first defendant in support of the defence taken by him produced a document, called a farkati, which he asserted was in the handwriting of the father of the plaintiff. The document is in these terms: 'Ram Ram of Luchi Ram Kishen Dyal to honoured Ganga Ram Chota Ram. There was money due to this firm, out of that I have received Rs. 1,200. Out of the amount due from his firm, I received Rs. 1,200 from him and struck out his name. I have no business left with Ganga Ram Chota Ram I shall realise from Moti Ram Sheo Ram. No claim against Ganga Ram Chota Ram remains. Whatever is found_ due in my khata, I shall take from Moti Ram. I have no complaint against Ganga Ram. If I do, I shall be held a liar in Court. Sambat 1965,month saon Badi 2 = 15th July.' This document, it will be observed, does not bear the signature of the alleged executant. The plaintiff repudiated the document as a forgery. The Subordinate Judge has held upon the evidence on the record that the document is genuine, and that the whole of it was written by Luchi Ram, the father of the plaintiff, Kishen Dyal. But he has held that the document is not operative in law, because it was never signed by the executant, in his opinion, the document was in substance little more than a draft which Luchi Ram might have intended to execute. In thin view the Subordinate Judge has refused to give effect to the contention of the first defendant that upon payment of Rs. 1,200 to the creditor, he had secured a release from all liability in connection with the transactions mentioned. The result has been that the Subordinate Judge has made a joint decree against the defendants for the entire sum claimed, but he has made it payable in 12 monthly instalments.
2. In the present appeal by both the defendants, it has been urged that the document was valid and operative though not signed by the executant, and, was in any view, admissible in proof of the payment of Rs. 1,200. On behalf of the plaintiff-respondent, it has been argued that the document is not genuine and that the alleged payment was never made. The first question for consideration consequently is whether the document is genuine. In our opinion there is no room for reasonable doubt that, as found by the Subordinate Judge, the document is genuine.
3. The document was shown to one Gobind Ram Maheswari, who was examined as a witness on behalf of the plaintiff, he was first asked whether he knew the handwriting of Luchi Ram. He answered in the affirmative and then stated that the document was in the handwriting of Luchi Ram, The Pleader for the plaintiff then alleged that the witness had been gained over; but beyond a mere assertion there is nothing tangible to show that the witness was hostile to the plaintiff, There is also the testimony of Mr. Hardless, the handwriting expert, who states affirmatively that the document in question was written by the same person as the executant of seven other documents which were admittedly written by Luchi Ram. The expert is positive in his assertion that the writer of all these documents was the same person. We have in addition the testimony of Tarakeshwar Sarma and Ganga Ram that Rs. 1,200 was actually paid. Reliance, however, has been placed by the plaintiff upon the circumstance that the payment is not entered in the books of the firm represented by the plaintiff. The absence of an entry in a book of account has no doubt been regarded as a relevant fact, not under Section 34, but under Sections 9 and 11 of the Indian Evidence Act, to prove that an alleged payment was not made Imrit Chamar v. Sridhar Panday 13 Ind. Cas. 120 : 15 C.L.J. 7 : 17 C.W.N. see also Ali Nasir Khan v. Manik Chand 25 A. 90 at p. 92 (F.B.) : A.W.N. (1902) 207. But the question remains, what weight should be attached to this circumstance in the present case. The books of the firm, which the plaintiff represents, were, it may be assumed, even during the life-time of his father, written by himself. But as the payment was made in the shop of the defendants where the creditor had called to receive the money, it is conceivable that if the fact of payment was not mentioned by the father of the plaintiff to him no entry would be made in the account books. We must hold in concurrence with the Subordinate Judge that the document was written by Luchi Ram and was made over to the first defendant on receipt of Rs. 1,200 from him.
4. The question next arises, whether the document, though not signed by the creditor, is operative as a release. It is worthy of notes that the document is produced by the first defendant and that there is no suggestion that he obtained possession of it by unfair and fraudulent means. Consequently the theory, which found favour with the Subordinate Judge, that the document was incomplete and was little more than a draft which Luchi Ram might have intended to execute, cannot be accepted as well founded. Does the circumstance then that the document does not bear the signature of Luchi Ram affect its legal operation as a release? It has not been disputed that the document was not required to be signed or executed in any particular manner under any statutory provision. Consequently the well-settled principle applies that the place and manner of signature of a document are immaterial, provided that the signature is inserted in such a manner as to authenticate the document; and where an instrument is in the handwriting of the party to be charged, it is sufficient if his name is inserted at the commencement. Lord St. Leonards in his Classical Treatise on 'Vendors and Purchasers' states the rule in the following terms (14th Edition, Page 142): 'The signing of the name at the beginning of an agreement, which is required to be signed under the Statute of Frauds, will take it out of the Statute, as if a person write an agreement himself and begins 'A B agrees to sell;' and such a signature will be sufficient, although space be left for signature at the bottom of the instrument.' This statement is borne out by cases of the highest authority, amongst which we may mention those 'of Ogilvie v. 'Foljambe (1817) 3 Mer. 53 at p. 62 : 17 R.R. 13 : 36 E.R. 21; Propert v. Parker (1830) 1 Russ. & M. 625 : 39 E.R. 240; Lobb v. Stanley (1844) 5 Q.B. 574 : Dav. & M. 635 : 13 L.J.Q.B. 117 : 8 Jur. 462 : 114 E.R. 1366 and Holmes v. Mackrell (1885) 3 C.B. (N.S.) 789 : 140 E.R. 953 : 111 R.R. 837. We are of opinion that the document in this case was operative as a release though not signed by the executant. The position consequently is that the creditor received Rs. 1,200 from the first defendant and released him from all liability under his claim. This was a valid agreement, although it might not operate to life prejudice of the other debtor, should a question of contribution arise as between them. But it is plain that the plaintiff, as representative of Luchi Ram, cannot recede from the position deliberately assumed by his I father and impose a liability upon the first defendant in contravention of the terms of the release and the decree of the Subordinate Judge discharged. The suit will stand dismissed with costs in both the Courts as against the first defendant. The suit will, however, be decreed as against the second defendant for a sum of Rs. 6,466. This amount is obtained by a deduction of Rs. 1,200 together with interest thereon at the rate of 9 per cent, per annum, from the 15th July 1908 (date of payment) to the 22nd September 1910 (date of the institution of the suit), from the sum of Rs. 7,900 claimed by the plaintiff as the sum due to him. The plaintiff will be entitled to his costs on the sum now decreed as against the second defendant only in the Court of first instance. As between the plaintiff and the second defendant, there will be no order for costs in this appeal. The order for payment by instalments made by the Subordinate Judge will stand cancelled. A self contained decree will be drawn up in this Court.