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Second Appeal No. 753 of 1951, decided on 7th March 1957.

Conclusion arrived at by comparison of signature‑When relating to question of fact cannot be interfered with in second appeal‑Civil Procedure Code (h of 1908), S. 100.

As section 73 of the Evidence Act permits the Court to make a comparison of signature or writing, however hazardous or dangerous the adoption of such a method might be, the conclusion arrived at by adoption of such a method, if it relates to a question of fact, does not merely by reason of the adoption of that particular method become a question of law.

Balak Ram v. Muhammad Said A I R 1923 Lah. 695 and Condu v. Tusliram and others A I R 1930 Nag. 27 agreed.

Ambika Charan Barua v. Nareswari Dasi and another 29 C W N 75 distinguished.

Sarojini Dasi v. Haridas Ghosh 26 C W N 113 and Barindra Kumar Ghose and others v. Emperor I L R 37 Cal. 467 ret/1Syed Amjad Hossain for Appellant.

A. W. Choudhury for Respondent.

This appeal is against the decision of the Subordinate judge, 1st Court, Chittagong, in Money Appeal No. 28 of 1949, reversing that of the Munsif, 1st Court, Sadar, Chittagong, in Money Suit No. 87 of 1948.

The plaintiff who is the appellant before me instituted the suit for the recovery of the sum of Rs. 1,500 from the defendant on, inter alia, the following grounds. He claimed that the defendant had entered into an agreement with him to give settlement of a particular holding known as Taluk Jagamohan Dutta, which the said defendant had auction purchased in a sale, held, for non‑payment of arrears of rent, in the benami of one Jamanullah. The plaintiff alleged that the premium for the said settlement had been fixed at Rs. 1,200 which the plaintiff had paid to the defendant in full and the defendant had also given a letter to the said Jamanullah to execute a patta but the latter refused to do so unless the plaintiff paid him a further sum of Rs. 100 and threw away the defendant's letter. The plaintiff duly informed the defendant of the refusal of the said Jamanulla and the defendant promised to set matters right but subsequently the plaintiff came to learn that the said Jamanullah had, in fact, given a settlement of the same land to one Hosanazzman. Thus the plaintiff claimed that he had been cheated by the defendant and demanded a refund of the said sum of Rs. 1,200 together with interest and damages amounting in all to Rs. 1,500.

The defendant contested the suit and averred that the agreement to give settlement of the taluk in question to the plaintiff was on a premium of Rs. 200 only ; that in pursuance of the said agreement the plantiff had, at his own costs, caused notices under section 167 of the Bengal Tenancy Act to be served in the name of the said Jamanullah but sub sequently the plaintiff, instead of taking the settlement in his own name because he was the owner of a tenure under the same taluk took the settlement agreed upon in the name of his relation Hosanazzaman on the 9th of April 1945. On the date of the execution and registration of the said pitta on the 22nd of May 1945,'in favour of the said benamdar Hosanazzaman, the plaintiff and his nephew Majibul Haque were present and actually bore the expenses thereof. They also executed a sarat namah in favour of the said Jamanullah and took‑back the defendant's letter from him. Thereafter, one Rasik Dbar filed a sale‑set‑aside case and got the sale set aside. Hence the plaintiff, thinking that the settlement obtained by him in the benami of Hosanazzaman had become of no value, filed this, false suit after altering the premium, mentioned in the letter of the defendant to Jamanullah, from Rs. 200 to Rs. 1,200. The defendant further alleged that it was, not probable for him to cheat the plaintiff, as the plaintiff's daughter had been married to the son of the defendant's brother on the 14th of May 1946, subsequent to the date of the execution of the pitta in favour of Hosanazzaman.

The trial Court took the view that since the defendant admitted the agreement for the settlement, as also the writing of the letter of the 4th March 1945, to the said Jamanullah (Exhibit 1), the onus was upon him to prove that the consideration mentioned therein was a forgery and that, in fact, it was only Rs. 200. According to the trial Court, the ‑defendant had failed to prove, particularly, as he had not even produced his own jama kharach book wherein he admitted that he had entered the receipt of the said sum of Rs, 200. It also took the view that it had not been established that Hosanazzmari was the benamdar of the plaintiff, particularly, as the said Hosanazzaman had himself deposed as P. W. 5 in the case and had stated that he took the settlement in his own interest and with his own funds. On these findings, the trial Court decreed the suit in full with costs.

On appeal the learned Subordinate Judge reversed the said finding of the Munsif, and came to the conclusion that it was nor against probability, in the facts and circumstances proved in this case, that the plaintiff would obtain a benami settlement of the sikimi taluk, Furthermore, that a bare look at the letter, Exh, 1, was sufficient to show that the figure '1' in front of 200 was a subsequent interpolation in a different writing with a different pen‑pressure and, therefore, neither the amount or Rs. 1,200, as now shown in the letter, nor the evidence of the said Hosanazzaman could be accepted as establishing the case of the plaintiff. Hence he allowed the appeal, set aside the ‑judgment and decree of the trial Court and dismissed the suit with costs.

It is against this decision that the plaintiff has now come up on appeal to this Court. The learned Advocate appearing on behalf of the appellant has confined his attack against the said judgment of the learned Subordinate judge, mainly, to his finding regaraing the genuineness of the letter, Exh. 1. According to him, the learned Subordinate Judge had been mainly influenced by this finding. He urges that having come to the conclusion that the letter was a forgery he had been prejudiced against the plaintiff on all other points also. The learned Advocate seriously challenges the finding of the learned Subordinate judge with regard to the genuineness of the said letter, Exh, 1, based as it is solely on the learned judge's own inexpert comparison of the writings, spacings, and pen‑pressures on the various letters and figures in the said Exh. 1. He contends that such a method of comparison by the Court itself unaided by expert opinion has been repeatedly condemned by the Courts as a dangerous method of determining the genuineness of a writing.

In support of this contention, he has placed strong reliance on the decision in the case of Ambika Charan Barua v. Nareswari Dasi and another (29 C W N 75), where Sanderson, C. J , and Chakravarti, J., observed :‑

"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 a signature is a mode of ascertaining the truth which ought to be used with very great care and caution.' The observations which I have quoted are to be found in the case of Sarojini Dasi v. Haridas Ghosh (26 C W N 113)."

Their Lordships then went on to hold that as the learned ,,j District judge in disposing of the First Appeal, against which, their Lordships were hearing a second appeal, relied only upon his own impression as to the nature of the signature giving a go‑by entirely to the oral evidence adduced in the case, he had failed properly to try ,the case on the evidence and, therefore, allowed the second appeal. The learned Advocate also relied on certain observations of Sir Lawrence Jenkins, C. J., and Carnduff, J., in the case of Barindra Kumar Ghose and others v. Emperor (I L R 37 Cal. 467) with regard to the practice of comparison of hand‑writing by the Court itself which are to the same effect as the observations which I have already quoted above.

In further support to his arguments, the learned Advocate also draws my attention to the judgment of the learned Subordinate Judge as well as the judgment of the Munsif, and contends that the Munsif, in coming to his conclusion with regard to the genuineness of the said Exh. 1, took into consideration various circumstances, namely, as to how the said Exh. 1 came to be retained by the plaintiff, why the jama kharach book in which entries were admittedly made by the defendant were not produced, the circumstances in which the sarat namah, Exh. B, came to be executed by the plaintiff and his nephew Majibal Haque, who was in no way concerned with the said agreement for settlement, and also the other oral evidence in the case. It was, therefore, according to the learned Advocate for the appellant, the duty of the learned Subordinate judge also to take these into consideration and to draw an adverse presumption against the defendant for the non‑production of the said lama kharach book ; but the learned Subordinate judge had not even taken the trouble to notice that the defendant admitted that he had such a jama kharach book and that he had made an entry therein of the receipt of the salami in question.

The learned Advocate for the respondent, however, contends that since section 73 of the Evidence Act provides that comparison of writings or signatures is a legitimate method of proof in a case, these merely constitute items of evidence, and, therefore, the wrong appreciation of evidence or the attachment of improper weight to a particular items of evidence cannot be a question of law which can be agitated in a 2nd appeal. In support of this contention, lie has relied upon the cases of Balak Ram v. Muhammad Said (A I R 1923 Lah ) and Condu v. Tulsiram and others (2).

In the first‑mentioned case, Broadway and Moti Sagar, JJ., of the Lahore High Court clearly held that

"Comparison of signatures is one of the modes of proving handwriting and although, where there is no other evidence, such proof would be regarded as hazardous and inconclusive; it .cannot be regarded as an error in law to base the conclusion on such proof alone, and a Court of Second Appeal would have no power to set aside a finding based on such comparison".

In the second case also, Jackson, A. J. C., took the same view and observed

"It is clear that the Court has power to make comparison and come to a conclusion from it. It cannot, in second appeal, be considered whether that conclusion is correct or not."

The learned Advocate for the appellant finally pleaded that at least for the ends of justice there should be a remand of this appeal to enable his client to have the document examined by an expert.

It does not appear from the record that any attempt whatsoever was made by the plaintiff at the trial to take any step for the examination of the said document by an expert. But, in view of the insistence of the learned Advocate, I asked him if his client was prepared to make an application even now for such examination by an expert in this Court. The learned Advocate asked for time to take instructions and I gave him two weeks' time to obtain such instructions Today he has informed me that "the application is not forth coming." In the circumstances, I am not satisfied that the prayer for the examination of the document by an expert is a genuine one and not merely an attempt to delay the disposal of this matter.

On the question of the propriety of the decision of the learned Subordinate judge, by his own comparison of the writings in the document, I am in respectful agreement with the decisions relied upon by the learned Advocate for the respondent that since section 73 of the Evidence Act permits the Court to make such an examination, then however hazardous or dangerous the adoption of such a method might be, the conclusion arrived at by the adoption of such a method, if it relates to a question of fact, does not merely by reason of the adoption of that particular method become a question of law. This case is distinguishable from the decision in 29 C W N 75. There the learned District Judge had relied solely upon his own comparison when there was no other evidence. In the present case, however, whilst it is true that the learned judge has mainly relied upon his r comparison of the evidence but he has also considered some of the other circumstances and the oral evidence on the record in arriving at the conclusion that the result of his own examination of the document is the more probable and the more correct one. This clearly distinguished it from the other case.

The result, therefore, is that I am unable to accept the contention put forward on behalf of the appellant on the only point urged in this appeal, This appeal must, therefore, fail and is accordingly dismissed with costs.

Z. A. S.

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