(1.) THIS is a special appeal against the judgment and decree of a learned Single Judge of this Court.
(2.) THE appellants are defendants mortgagees. A suit for redemption was brought by plaintiffs respondents. THEir case was that a certain shop had been mortgaged by one Pratapmal and his sons with Roop Ram and Kaniram on Kartik Badi 13, St. 1917, for a sum of Rs. 451/ -. THE plaintiffs claimed to be successors-in-interest of the mortgagors along with certain others who were made pro forma defendants. THEy sued for redemption of the shop from defendants 1 to 5 who were successors-in-interest of the mortgagees. THE suit had a chequered history, but it is enough to say that eventually the mortgage was held to be proved, and the trial court ordered redemption. THEre was an appeal by the defendants mortgagees, which was dismissed, and thereafter, there was a second appeal to this Court, which was also dismissed by the learned Single Judge.
The main case of the defendants mortgagees in second appeal was that the plaintiffs mortgagors had failed to prove the mortgage, set up, and, therefore, the suit for redemption should have been dismissed. It was urged on behalf of the defendants mortgagees that though the fact that they were mortgagees could not be challenged by them, the plaintiffs had failed to prove the terms of the mortgage, and the date on which it had been made.
In this connection, the trial court relied on an entry in an account book kept by the predecessors-in-interest of the plaintiffs. That entry was proved by the statement of Chhaganmal, one of the plaintiffs, who stated that the entry was in the hand-writing of one Hirachand who was a munib in the employ of the plaintiff's predecessor-in-interest, and that Chhaganmal was acquainted with the hand writing of the said Hirachand In cross-examination it was brought out that Hirachand had died in St. 1930 which is equivalent to 1873 A D. Chhaganmal himself said that he was born in St. 1949 (1892 A. D.) i. e. 19 years after the death of Hirachand. It was thereupon urged on behalf of the defendants mortgagees that Chhaganmal could not be acquainted with the hand-writing of Hirachand, and his evidence was not enough to prove that the entry in question was in the hand-writing of Hirachand.
The contention on behalf of the plaintiffs was that Chhaganmal had stated in examination-in-chief that he was acquainted with the hand-writing of Hirachand, and it was for the defendants mortgagees to cross-examine him on that point, and as the defendants mortgagees had failed to cross-examine him about that statement, it was not open to them to say that Chhaganmal could not be acquainted with the hand-writing of Hirachand, and had therefore failed to prove it. The plaintiffs were contending that it was for the cross-examining counsel to make out circumstances from which the court would infer that the witness was not acquainted with the handwriting, and that it was not for the counsel putting in the witness to get a statement from him to the effect that the witness was acquainted with the hand-writing. The learned Single Judge accepted this view put forward on behalf of the plaintiffs, and held that it was for the cross-examining counsel to bring out the circumstances from which it could be inferred that the witness was not acquainted with the handwriting of Hirachand, and that it was enough that the witness stated in his examination-in-chief that he was acquainted with the hand-writing. He held further that as the witness was not cross-examined on this point by the counsel for the defendants mortgagees, his statement that he was acquainted with the hard-writing stood and he must be held to have proved the entry in dispute. Learned counsel for the parties agree that if the entry is held to be proved, this appeal must fail, while if the entry is not proved, the appeal must succeed and the suit must be dismissed.
The contention on behalf of the appellants before us is that the learned Single Judge was wrong in holding that it was for the cross-examining counsel to bring out the circumstances to show that the witness was not acquainted with the hand-writing, and that, in any case, circumstances had been brought out sufficiently for purposes of this case to show that the witness was not acquainted with the hand-writing of Hirachand,
We shall first address ourselves to the question of law raised by learned counsel for the appellants, namely that it was for the plaintiffs, when they put Chhaganmal as a witness, to bring out the circumstances in which he came to know the hand-writing of Hirachand, and that it was not enough for them to get from him the bald statement that he knew the hand-writing. It is enough to say that the weight of authority is against the appellants on this matter. Sec. 47 of the Evidence Act, which deals with this matter, provides that the opinion of a person acquainted with the hand-writing is a relevant fact, Then follows the explanation which defines what the words "acquainted with the handwriting" mean. Considering the manner in which sec. 47 is framed it has been held by the courts generally that it is enough for a witness to say in examination-in-chief that he is acquainted with the handwriting, and that if it is desired to challenge that statement of his he has to be cross-examined on that statement to show that he could not be acquainted with the handwriting in the circumstances of any particular case.
The English law on the point is thus summarised by Taylor. On Evidence (Second Volume, 12th Edition, paragraph 1863, p. 1151 ). "the witness need not state in the first instance how he knows the hand-writing, since it is the duty of the opposite party to explore on crop-examination the sources of his knowledge, if he be dissatisfied with the testimony as it stands. " The Indian law of Evidence is based on the English law, and there is nothing in sec. 47 which goes against this principle which has been accepted by the English courts. Following this principle; the Indian High Courts have also taken the same view, and we may refer to a few cases in support.
In Shankarrao Gangadhar vs. Ramji Harjivarj (l), it was held that the law on the point was correctly stated by Taylor in evidence, and the Bombay High Court followed the law as summarised above in Taylor On Evidence. The same view was taken by the Patna High Court in Mahanth Jagdish Das vs. Emperor (2 ).
Learned counsel for the appellants relied on two cases for the opposite view, namely that it was for the party putting in the witness to bring out the circumstances under which the witness became acquainted with the hand-writing. In In re Basrur Nenkata Row (3) as observation was made, while dealing with a criminal case, that a bald statement by a witness that certain documents were not in the hand-writing of the accused, was not legal evidence of any knowledge of the accused's hand-writing, even when he says that he had seen the accused write documents and the accused had written documents for him. Without saying how long ago they were written, his evidence is of the weakest kind. These observations, in our opinion, were about the weight of the evidence and not as to whether it was the duty of the counsel examining the witness to question him about his source of knowledge, In that case, the source of knowledge of the witness was undoubted, and the question was only whether the evidence was sufficient to prove the hand-writing.
The next case is Mt. Jasoda Kaur vs. Janak Missin (4 ). In that, case, there is an observation that in order to prove the handwriting or signature of another person one must show that he is acquainted with the hand-writing or signature of that person This observation has been taken to mean that is for the counsel putting in the witness to bring out the circumstances, though the learned Judge has not said this in so many words. The learned Judge has gone on to deal with the evidence of the witness, and has shown that his evidence itself makes out that he had no knowledge about the hand-writing, for the learned Judge observes that in cross-examination the witness gave away the show altogether. These two cases, in our opinion, are no authority for the view that it is for the counsel producing the witness to bring out the circumstances in which the witness became acquainted with the hand-writing. We, therefore, agree with the statement of law as summarised by Taylor mentioned above, and hold that it is enough if a witness states in examination-in-chief that he is acquainted with the hand-writing, and it is then for the cross-examining counsel to bring out the circumstances challenging the statement and discredit the witness.
We now come to the circumstances of this case. Chhaganmal, witness, said that he knew the hand-writing of Hirachand, in his examination-in-chief. It is also true that he was not directly cross-examined on the question as to how he knew the hand-writing of Hirachand. The explanation to sec. 47 gives three ways in which a person may be acquainted with the hand-writing of another; namely: (i) if he has seen the other person write; (ii) if he has received documents purporting to be written by the other person in answer to documents written by himself, or under his authority and addressed to that person; (iii) when in the ordinary course of business documents purporting to be written by that person have been habitually submitted to him.
All that the cross-examined counsel brought out in this case was that the witness was born 19 years after the death of the writer, and that the account book in question, from which the entry was proved, was found accidentally in a Bukhari about four years before the witness gave this statement. The house was being cleaned on Dewali when the account book was found. It may be mentioned that Chhaganmal had given statements twice in the trial court, once in 1943 and again in 1947, and on the first occasion this account book was not produced. It was to explain this non-production that the witness stated that the Bahee was found accidentally while Dewali cleaning was going on
(3.) THE learned Single Judge held that on this cross-examination the first two modes of getting acquainted with the hand-writing of a person were excluded, for Chhaganmal could not have been Hirachand writing, nor could he have received letters from him in reply to his own letters. But he was of the view that the mere fact that Hirachand died 19 years before Chhaganmal's birth was not sufficient to exclude the third possibility, namely, that in the ordinary course of business documents purporting to be written by Hirachand might have been habitually submitted to the witness. We have given this matter our anxious consideration, and have come to the conclusion (hat in the circumstances of this case even the third method of acquaintance with the handwriting must be held to be excluded. We have the evidence that Hirachand died 19 years before the birth of Chhaganmal. Obviously Chhaganmal would have nothing to do with the account books of the family till he attained the age of discretion say till about the age 18 to 21 years. THErefore, Chhaganmal would have no opportunity of having anything to do with any documents written by Hirachand till about 37 or 40 years after his death. Can it be said under these circumstances that documents written by Hirachand must have been habitually submitted to Chhaganmal in the ordinary course of business 37 years after Chhganmal's death. To our mind the answer to this question must be in the negative in the circumstances of this case. We are not unaware of case of record-keepers giving evidence because they came across certain signatures in the course of their duty as record-keepers. This is not a case of a record-keeper, and it does not stand to reason that 37 years after Hirachand's death any documents written by him would be habitually submitted to Chhaganmal. This possibility is completely ruled out when we find 'that the account book in question was discovered accidentally, and that other account books were not available, and had been taken away by the Baqayat Department sometime before 1920, and were never returned to this family. THE chances, therefore, of the writing of Hirachand having been submitted to Chhaganmal in the ordinary course of business are in the circumstances nil. We therefore, cannot agree with the learned Single Judge that on the cross-examination in this case the third possibility had not been ruled out. We are of opinion that the third method of Chhagan-mal's acquaintance with the writing of Hirachand is also ruled out by the cross-examination that is available on the record. In this view of the matter, we must hold that the document is not proved, and as that document is not proved the terms of the mortgage are not available, and the mortgage set up by the plaintiffs cannot be said to have been proved.
We, therefore, allow the appeal, set aside the judgments and decree of the courts below, and dismiss the suit of the plaintiffs. In view, however, of the fact that the defendants mortgagees did not cross-examine Chhaganmal property as to his acquaintance with the hand-writing of Hirachand we order parties to bear their own costs of this litigation throughout. .;