- (1.) THIS is a plaintiffs second appeal in a suit for recovery of Rs. 1,746. 60 p. on the foot of a Hundi for Rs. 1,800, Ext. 7, said to have been executed for M/s. Chunni Lal Satyabrat by Satyabrat, defendant No. 1, in favour of Bhagwan Das Puttu Lal for Rs. 1,800 payable on the expiry of 361 days from the date of the Hundi viz, Kuwar Sudi 10 Sambat 2017 equivalent to 30th Sept. 1960. The defence gave rise to a large number of issues. It is not necessary to refer to them all. The Trial Court found in favour of the plaintiffs and decreed the suit for recovery of Rs. 1,746. 60 P. with pendente line and future interest at 6 per cent per annum and costs. On appeal by the defendants, the lower Appellate Court has dismissed the suit on the findings that the Hundi was insufficiently stamped and the court could not act upon it and that the Hundi was not executed for consideration.
(2.) LEARNED Counsel for the plaintiff-appellants has assailed both the findings or the lower Appellate Court. A perusal of the judgment of the Trial Court shows that the Hundi was admitted in evidence and marked Ext. 7 on 26th Nov. 1968, without any objection to its admissibility on the ground of deficiency in stamp being raised by the defendants. The objection was raised later by an amendment of the written statement and gave rise to issue No. 14. The Trial Court relied on S. 36 of the Stamp Act and held that the Hundi having been admitted in evidence, its admissibility could not be challenged in the suit. There could be no doubt that the Trial Court is right and the view taken by it is amply supported by the ruling of the Supreme Court in Javer Chand v. Pukhraj Surana (AIR 1961 SC 1655 ). In my view the lower Appellate Court went astray in dealing with this point and came to a wrong conclusion. Learned Counsel for the defendant respondents, however, relied on the decision of the Supreme Court in Ram Rattan v. Bajrang Lal (AIR 1978 SC 1393 ). That case is clearly distinguishable on the facts. A perusal of the judgment of the Trial Court shows that when the Hundi was placed before the defendants for endorsing their admission or denial, the Counsel for defendants Nos. 1 to 5 including Satyabrat, who had executed the Hundi, made the following endorsement : "signatures admitted subject to pleas in W. S. Sd/- Illegible, Counsel for defendants Nos. 1 to 5 26-11-62". The Counsel for the guardian ad litem appointed by the court for defendants Nos. 6 to 14 dispensed with the formal proof of the document. The pleas raised in the written statement of defendents Nos. 1 to 5 did not include any plea that the document was inadmissible in evidence on account of deficiency in stamp duty payable thereon. That plea was taken by a subsequent amendment of the written statement of defendant No. 1 only. Under the circumstances the Court was not invited by any of the defendants to decide the question whether the document was inadmissible on account of deficiency in stamp duty and it was accordingly admitted in evidence and given an exhibit mark on 26th Nov. 1962. On the other hand in Ram Ratan's case (supra) the objection to the admissibility of the document on the ground of insufficiency of stamp was not decided. Instead the Court made the Note: "objected. Allowed subject to objection" and proceeded to mark it as Ext. I. That was a case where the Court postponed the decision of the objection. The present case before me is thus not governed by the ruling of the Supreme Court in Ram Ratan's case (supra ).
(3.) THE substantial point that remains is whether the finding of the lower Appellate Court that the plaintiffs have failed to show that the Hundi in question was executed for consideration or that the evidence on the record and the circumstances showed that the Hundi was not executed for consideration is vitiated in law. The signatures on the Hundi were not denied. What was suggested by the defendants was that Bhagwan Das, father of the first plaintiff and uncle of the second plaintiff, was the uncle (father's sister's husband) of the first defendant and on 8th Jan. 1961 Bhagwan Das sent a message through his Munim Surajbali to the first defendant that there was some bungling of some amount in the accounts of their partnership and because the Account Books had to be shown before the Income-tax Authorities, he, the first defendant should sign in back date on a Hundi for Rs. 1,800 and when the Munim of Bhagwan Das gave that message to the first defendant with a slip from him (Bhagwan Das) he, the first defendant, signed the Hundi, on seeing that slip and the message given by Surajbali. The genuines of the slip which is Ext. A-2 on the record was disputed by the plaintiff and the handwriting thereof was compared with the signatures of Bhagwan Das as a witness on a registered document Ext. A-3, by a handwriting expert Mr. A. N. Majumdar. The slip is in Muria. On the basis of a transliteration of the slip which was passed on to me by the learned Counsel the slip reads as under: MUNIM JI KO MALUM HO KI SATYABRAT SE RS. 1,800 PAR DASTKHAT KARVA LENA, MITI KUAR SUDI 9 SAMBAT 2017. " After the Sambai 2017 there are two words which I would read as 'ko LIKHI' although in the transliteration passed on to me they have been read as ME HO. On the left, hand corner of the slip the date 8-1-61 has been written in an altogether different handwriting and ink. The expert Mr. A. N. Majumdar who compared the handwriting on the slip with the signatures of Bhagwan Das on the registered deed Ext. A-3 did not appear to know Muria for, although he said he could read the contents of the slip, he was unsuccessful when asked to do so and pleaded that the handwriting was not good (Ghasit) Another peculiar aspect of the case is that the expert thought vide his report paper No. 71ga that the signature of Bhagwan Das on paper No. 34-Ka, that is, Ext. A-3 was the disputed signature which he had to compare with the handwriting in Mahajani on paper No. 33-K, that is, the slip Ext. A-2. The slip Ext. A-2 does not contain any signature of Bhagwan Das and I do not think that the expert Mr A. N. Majumdar was right in saying that he could say on a comparison of the handwriting on Ext. A-2 that the signature of Bhagwan Das on Ext. A-3 were written by the same person particularly when both the writings were in Muria, a language with, which the expert was not well-versed, I need not emphasise the fact that even where the disputed signature is sought to be proved by expert evidence on comparison with the admitted signatures of a person that evidence is of very little evidentiary value because the science of judging handwriting by comparison is not very precise, and cannot be relied upon unlike the science of comparing disputed finger prints and thumb impressions with the admitted finger prints and thumb impressions. I have yet to come across an expert who could say merely on comparing a handwriting with a signature, and not two signatures one admitted and the other disputed, that both were written by the same person, particularly when the expert is not acquainted even with the script of the writing and the signatures, as in this case. Mr. A. N. Majumdar was, in my opinion, trying to do or at any rate claimed to have done what would appear to most people to be an impossible thing to do. The lower Appellate Court was in my opinion in error in relying on the opinion evidence of Mr. A. N. Majumdar in this case.;