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Civil Petition for Leave to Appeal No. 279‑K of 1984, decided on 24th June, 1985.

(On appeal from the Judgment of the High Court of Sind, dated 2‑4‑1984, in F.C.A. 43/83).

‑‑‑Art. 185(3) Evidence Act (I of 1872), S. 68---Execution of document‑‑Onus to prove‑ Factum of execution of document supported by respondent (plaintiff) and attesting witness‑‑Respondent having produced sufficient legal evidence to prove execution of document, it was then for petitioners to prove by positive evidence that disputed agreement was forged and fabricated‑‑Bare denial, held, was not sufficient to set at naught evidence thus produced‑‑Not necessary for respondent to produce evidence of an expert to prove thumb‑mark was actually of executor.

Usman Ghani Rashid, Advocate Supreme Court and M.A.I. Qarni, Advocate‑on‑Record for Petitioners.

Nemo for Respondent.

Date of hearing: 24th June, 1985.

‑This petition for leave to appeal is from judgment, dated 2nd April, 1984, by a learned Single Judge of the Sind High Court, whereby the first appeal of the petitioners was dismissed and decree passed by the trial Court was maintained.

2. The facts giving rise to this petition briefly are that Gharib. Shah, the predecessor in title of the petitioners, owned and possessed the agricultural land comprising a paisa 50 share in Survey Nos. 413 and 414, situated in Deh Elchi, Taluka Qamber, District Larkana. Akbar Shah, respondent herein, brought a suit against the petitioners on the allegation that Gharib Shah had entered into an agreement for sale of the said land on 30th June, 1981 and in pursuance thereof had received Rs.50,000 as advance leaving the balance of the price amounting to Rs.70,000 to be paid at the time of execution of a proper sale‑deed. The respondent also claimed that in part performance of the agreement Gharib Shah had delivered possession of the suit land to him under the terms of the agreement. However, Gharib Shah having died three months after the execution of the agreement, the petitioners, being his legal heirs repudiated the contract after initially agreeing to honour it. He, therefore, brought the suit for a decree for specific performance of the contract for sale. The defendants resisted the suit and denied that Gharib Shah had entered into the agreement, or accepted the advance payment of Rs.50,000, alleging that the instrument of the alleged agreement was a forged document. Certain other pleas of law and fact were also raised by the petitioners in their defence but it is not necessary to state the same.

3. The trial Court held that it was proved that deceased Gharib Shah had executed the agreement for sale and had received the advance payment as averred by the respondent. But as the trial Court found that Gharib Shah owned 2/3 share in the suit land (remaining 1/3 share being owned by his sister Mst. Budhi), the trial Court passed a decree for specific performance of the contract for sale to the extent of 2/3 share in the suit land, by judgment, dated 30th June. 1983. The petitioners then filed first appeal against the judgment and decree of the trial Court which was dismissed by the impugned judgment.

4. In support of the petition, Mr. Usman Ghani Rashid, learned counsel for the petitioners first urged that the respondent (plaintiff) had failed to prove that the agreement for sale in question, was executed by Gharib Shah. The High Court in its judgment had referred to the evidence led at the trial by the respondent to establish the factum of execution of the agreement in question. It has been pointed out that the deed of agreement Exh 60 was written on a stamp‑paper by one Ramzan and was attested by two attesting witnesses, Jadal Khan and Haji Faizal who had witnessed the execution of the document by deceased Gharib Shah by putting his thumb‑impression. The factum of execution was supported by the respondent (plaintiff) and attesting witness Jadal Khan who testified to' the terms of the sale, namely, the consideration amount of Rs.12,000, the payment of advance of Rs.50,000 and the execution of the argeement in his presence. On the basis of this evidence the learned Judge in the High Court came to the conclusion that the respondent had discharged the onus of proof sufficiently and had established the execution of the agreement. In the opinion of the learned Judge, it was then for the petitioners to prove by positive evidence that the agreement was forged and fabricated. Learned counsel took exception to the approach adopted by the learned Judge in the High Court and contended that it was for the respondent to have produced expert evidence in proof of the fact that the thumb‑mark appearing on the document was in fact that of Gharib Shah. We however, find no substance in this contention. The two Courts below have concurrently believed the evidence produced by the respondent on the point of execution of the disputed document. The mode of proof of execution of a document is laid down in sections 68 to 71 of the Evidence Act. It has been held that the ordinary meaning of executing a document is signing a document as a consenting party thereto. Execution consists in signing a document written out and read over and understood by the person signing it. Execution can be proved by calling the person who signed or wrote the document or a person in whose presence the document was signed or written one by calling a handwriting expert who has examined the disputed signature with the admitted signature. Additionally execution can be proved by calling a person acquainted with the handwriting of the person who has signed or written it. Lastly the Court can compare the disputed signature or writing with some admitted signature or writing. Even circumstantial evidence can be adduced in proof of the execution of a document. We agree with the learned Judge in the High Court that the respondent had produced sufficient legal evidence in proof of the execution of the agreement in this case and that a bars denial on the part of the respondent was not sufficient to set 'at naught the evidence thus produced. In the circumstances, it was not necessary for the respondent to produce the evidence of an expert to prove that the thumb‑mark was actually that of the deceased executor. In this connection the High Court has further pointed out that the thumb‑impression was distinct and clear, so that the petitioners who may be in possession of other documents bearing the thumb‑impression of the deceased, were in a better position to rebut the evidence by calling expert evidence showing that the thumb impression was not genuine. On the rule of preponderance evidence the issue seems to have been correctly decided.

5. Learned counsel then submitted that the surrounding circumstances which tended to show that the agreement for sale was not a genuine document have been ignored by the Courts below. In this connection, he referred to the fact that no separate receipt was produced for the payment of Rs. 50,000 and that Gharib Shah was not the sole owner, nevertheless he was shown to have disposed of the whole property. It is unfortunate that the copy of the agreement for sale on which the suit was based has not been placed on the record. However, it appears that the receipt of the advance payment was acknowledged in the deed of agreement. So far as the question of Gharib Shah not being the sole owner of the land in dispute, suffice it to say that the Courts below have taken into consideration this fact and passed a decree only to the extent of 2/3 share which was owned by the deceased vendor. There is nothing unusual in this part of the country, especially in rural society, where male members deal with the jointly held share of females in immovable property. We, therefore, find no substance in the second contention advanced in support of this petition.

6. In view of the foregoing reasons, we find no merit in this petition which is accordingly dismissed.

M. I. Petition dismissed.

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