MT SHAHZADI Vs. BENI PRASAD

JUDGEMENT

(1.) This is an application in revision on behalf of two ladies who were defendants against whom the Small Cause Court has granted a decree. The suit of the plaintiff was a claim for Rs. 100 principal and Rs. 53 interest on a loan to these ladies on 14 August 1930, within three years from the date on which the suit was brought, which was 11 August 1933. The plaintiff based his suit not only on the loan but also on a promissory note which he stated has been lost, but which was eventually filed. The promissory note purported to bear the thumb-marks of defendants 1 and 2 and to be signed by defendant 3, Wilayat Ali, the brother of defendant 1. Defendant 2 is the daughter of defendant 1. The plaintiff gave his evidence to the effect that the two ladies borrowed Rs. 100 from him through defendant 3, Wilayat Ali, and Wilayat Ali produced the promissory note in question purporting to bear thumb-marks and told him that the promissory note was executed by defendants 1 and 2 who were pardanashin ladies, and also tendered a receipt purporting to bear the same marks. The receipt also has the signature of defendant 3. The plaintiff says that Wilayat Ali told him that the money was required for the redemption of a mortgage-deed which the ladies had executed in favour of one Shadra Nath Misra. The plaintiff was supported by Gur Prasad, who was the scribe of the promissory note. Neither of these persons was present when the thumb impressions of defendants 1 and 2 were taken on the promissory note or the receipt. The defence produced only one witness, Anwar Husain, the husband of one of the ladies, and he admitted in cross-examination that the house of Mt. Shahzadi had been mortgaged and that the mortgage was redeemed, but he stated that he advanced the money himself. He was asked if the redemption took place on 14 August 1930, the date on which the money was lent according to the plaintiff, and he said ho did not know if redemption took place on that date. Wilayat Ali, defendant 3, was present in Court, but he did not give evidence in the witness-box. Defendants 1 and 2 did not give evidence either. Learned Counsel is not able to explain why these defendants 1 and 2 did not give evidence other than the usual statement that they were pardanashin ladies. It is quite possible for pardanashin ladies to give their evidence in pardah or on commission. But neither course was adopted. In revision two grounds have been taken. The first ground is that the finding on issue 1 is bad in law as there is no evidence on the record to support the finding. Issue 1 was : Whether the defendants had executed the pronote and for what condition and on what terms? The argument of learned Counsel was that the Court below should not have found that the promissory note was executed when there was no direct evidence that it had been executed by defendants 1 and 2. The Court acted on the circumstantial evidence already set out that the money had been borrowed from the plaintiff by Wilayat Ali, and that he had told the plaintiff that it was required for the redemption of the mortgage debt which was due from these ladies, and the further admission of the defence witness, Anwar Husain that the mortgage was in fact redeemed. Learned Counsel alluded to the provisions of the General Clauses Act, Section 3(52) which states: sign, with its grammatical variations and cognate expressions shall, with reference to a person who is unable to write his name, include mark, with its grammatical variations and cognate expressions.

(2.) He argued that this would apply to the Evidence Act. The sections in question are Secs.67 and 73. In Section 67 it is stated: If a document is alleged to be signed or to have been written wholly, or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in. that person's handwriting must be proved to be in his handwriting.

(3.) I do not consider that the definition of "sign" in the General Clauses Act can be held to apply to Section 67, Evidence Act. Section 3, General Clauses Act, states: Unless there is anything repugnant in the subject or context the definition given shall apply.