KAN SINGH, J. - (1.) THIS is a second appeal by the legal representatives of an unsuccessful plaintiff Karam Chand and is directed against an appellate judgment of the learned District Judge, Balotra by which the learned Judge while reversing the judgment and decree awarded in favour of the appellant by the Munsiff, Barmer dismissed the plaintiff's suit.
(2.) PLAINTIFF Kararn Chand and others were carrying on business of selling petrol and motor parts at Barmer. They filed a suit against the respondent Ismail and his brother Mirabux for the recovery of Rs. 1200/- as principal and Rs. 460/-as interest, total Rs. 1760/-on the foot of a promissory note said to have been executed by the defendant Ismail in their favour. The suit against Mirabux was dismissed by the trial court but was decreed against Ismail. The plaintiffs did not file any appeal against Mirbux, and I am not concerned with him in this appeal. Defendant Ismail filed the appeal. The learned District Judge came to the conclusion that the suit document appeared to be suspicious and it had not been satisfactorily proved that they bore the signatures of Ismail. In view of this conclusion the learned District Judge dismissed the suit as observed already. In attacking the judgment of the learned District Judge the learned counsel for the appellants submitted that the discussion of evidence by the learned Judge was vitiated on account of his wholly wrong approach. The learned counsel argues that the two witnesses for the plaintiff viz. , P. W. 1 Ranmal, the plaintiff, and P. W. 2 Sultan Mal attesting witness clearly stated that defendant Ismail put his signatures on the promissory note and the receipt in their presence. According to the learned counsel it was not essential for them to have identified the signatures of the defendant which were in Urdu and the plaintiffs' witnesses were not acquainted with writings in Urdu. This, the learned counsel urges, constituted an error of law as would justify an interference with the judgment of the learned District Judge even in a second appeal. The learned District Judge has observed that the signatures on the promissory note and on the receipt do not purport to be Ismail at all. As none of the learned counsel nor I were acquainted with Urdu Shri Hamid Mohd. a Reader of this Court was asked to read the signatures appearing on these two documents in the presence of the learned counsel. Shri Hamid Mohammad read the signatures to be of Asulal and not of Ismail. Shri Hamid Mohammad also submitted his report to that effect and that has been placed on the record in the presence of both the learned counsel. The learned counsel for the appellants submitted that even if a person were not to sign his own name but that of another even then that signature will be taken to be of the person signing it. The essentials of the reasoning of the District Judge about the question agitated before me will be clear from the following passage: - "in support of the; above contention, it is urged that apart from the documents, there was simply the oral word of P. W. 1 and P. W. 2 to the effect that the appellant put his signatures on them in their presence. As pointed out above, the signatures were written in Urdu and in the face of the appellant's strong and unequivocal denial that the signatures were not his, this oral evidence of the plaintiff was not sufficient to prove execution. The plaintiff ought to have produced, if not a hand writing expert, at least some persons familiar with Urdu to prove that the signatures found on the two documents actually read as 'ismail'. It is urged that the disputed signatures do not spell out the name correctly and do not read as 'ismail'. In my opinion the contention is well found and before any liability can be fixed against the appellant on the basis of the signatures on the documents the plaintiffs must first establish that the said signature contained the name of Ismail Being faliar with Urdu, I have examined the signatures on the pronote and receipt in dispute and I find that they do not correctly spell out and do not read as 'isamil' at all. It is also revealed that whoever has written these signatures was not accustomed to writing in Urdu. In this context, the oral evidence of the plaintiff and his witness Sultanmal who do not claim to know Urdu has not much value. The plaintiffs who appeared to have thought it necessary to get the signature attested, ought to have taken care to get it attested from some one knowing that language, so that in case of dispute his evidence could have inspired confidence. In the absence of this, far from proving that the documents were signed by the appellant, the suspicious nature of the signatures rendered the whole documents quite suspicious upon which it would be unsafe to pass a decree against the appellant. " The learned counsel for the appellants submitted that the above passage brings out that the approach of the learned District Judge was wholly wrong. He points out that in the very nature of things there can be only oral evidence to prove the signatures. The learned District Judge, learned counsel for the appellant maintains, was in error in observing that the oral evidence of the plaintiff was not sufficient to prove the execution. It was not right for the learned District Judge, continues the learned counsel, to think that a hand writing expert or persons familiar with Urdu should have been produced to prove the signatures of Ismail. Learned counsel also criticised the observation that the oral evidence of the plaintiff and his witness Sultanmal was not of much value on the ground that attestation of some person acquainted with Urdu should have been obtained. Learned counsel for the respondent, on the other hand, strenuously contends that the finding of the learned District Judge about the proof of the suit documents was nothing but a pure question of fact and the learned District Judge was justified in reaching his conclusion in view of the broader probabilities of the case to which he has adverted in his judgment. He relies on the following passage from the judgment of the learned District Judge wherein he has summarised the position: "10. Considering all the circumstances mentioned above, the documents appeared suspicious and it was not proved that they bore the signatures of the appellant. The pltfs' unbusiness like conduct in advancing such a big amount of a person in the position of the appellant who was a butcher by his calling and at the most, according to plaintiffs' own evidence, working as a Khalasi (cleaner) on his brother's motor-lorry further enhanced suspicion against these documents, The plaintiff had further failed to prove this advance of loan from any independent source such as entries from Rokar Bahis, etc. There was not even the customary evidence by issue of a registered notice in writing to prove a genuine demand for return of the money. " I have given my anxious consideration to the matter having heard the learned counsel at great length. While I am unable to endorse what the learned District Judge has said in the first passage extracted above it can not be predicated that on the facts and circumstances the learned District Judge could not have reasonably arrived at the conclusion to which he did. It is quite possible for a scribe of a document to say who appended his signatures on that document even though the scribe may not be acquainted with the signatures of the person signing it. Similarly it may be quite possible for an attesting witness also to depose to that effect about the signature, if it is appended in his presence, even if he did not know the language or the script in which the signature is put. The scribe in the one case and the attesting witness in the other will be identifying the paper or the document on the basis of their own writing, and they will be deposing to the particular person being the author of the signature on account of their own personal knowledge about the person putting the signatures in their presence. For example in a case where an illiterate person puts his thumb impression on a document and that thumb impression is sought to be proved by the evidence of a scribe or the attesting witness then even though it is not likely that the scribe or the attesting witness will be able to identify the thumb impression, it will be quite possible for them to say that the thumb impression that was put in their presence was of a particular person. A signature may be proved in a variety of ways like any other fact. It may be proved by calling a person who signed or wrote a document; (2) by calling a person in whose presence the document was signed or written; (3) by the evidence of a hand writing expert; and (4) by the evidence of persons who are acquainted with the hand writing of the person whose writing or signature is to be proved. Also it will be permissible to compare the disputed signature with any submitted signature of the person concerned. However it is certainly permissible for the court to look to the nature of the document itself for making up its mind about its genuineness. In the present case the court was greatly swayed by the circumstance that the alleged signatures of Ismail on the suit documents never purported to be that of Ismail, and as noticed by me above it reads to be that of Asulal. It was therefore, the duty of the plaintiffs to have explained how this signature purported to be of Ismail. The plaintiffs did not come with the plea that the defendant practised fraud while executing the document and instead of signing his own name he signed that of another man and on account of his ignorance of the script in which the name was written the plaintiffs could not detect the fraud. It was then for the plaintiffs to have dispelled all possible doubts occasioned by the alleged signatures of Ismail on the document not in fact purporting to be that of Ismail but one of Asulal. Having come to the conclusion that the signatures of Ismail did not purport to be there on the document the court observed that the document ought to have been, as an act of the wisdom, got attested by some one who knew the script in which the defendant had signed it. I may not wholly agree with the learned District Judge but it cannot by any means be said that the learned District Judge was not justified in treating the document so written to be of a suspicions nature. The learned District Judge also commented on the lack of trustworthy evidence about the consideration. This was however not necessary as the fate of the case turned only on the question about the authorship of the suit documents. If the execution were not taken to be established then it was wholly unnecessary to enter into the question of consideration, and if it was taken to have been established it was not for the plaintiffs to show that the suit document was executed for consideration. Any way as I have observed above, the document was rendered highly suspicious on account of the alleged signatures of the defendant reading as Asulal and not as Ismail. No explanation worth the name is forthcoming from the plaintiff's evidence about this. I may now briefly refer to some of the decisions which were cited at the bar. , for showing that a person need not sign his own name. Learned counsel for the appellants relied on Gangadhar Rao Venkatesh vs. Shidramapa Desai (1), Uma Shanker vs. Govind Narain (2), and Nirmal Chunder Bandopadhya vs. Saratmoni Debya (3 ). In Gangadhar Rao Venkatesh (1) the question was whether the so called acknowledgment on the basis of which the extension of limitation was claimed was in fact signed. The words which were said to be in the handwriting of the debtor were. 'guru Samrath'. The question that was canvassed in the circumstances was whether these words amounted to the signing of an acknowledgment. It was observed that as it was customary with the debtor to sign in that form the putting of the words 'guru samrath' amounted to the signing of the acknowledgement, within the meaning of sec. 19 of the Limitation Act. The basis of the decision is the customary mode in which the defendant in that case used to sign. This is not so in the present case. It is not the case of the plaintiffs that Ismail used to sign as Asulal according to his usual mode. In Uma Shanker vs. Govind Narain (2) there is an observation of the learned Judge that mere name of the firm in the heading of the letter was good signature. This observation to my mind is obiter dictum because in the result the suit was dismissed as time-barred and the so called acknowledgement in relation to which the observation was made was not relied on for the extension of the period of limitation. Even otherwise signing or putting of the firm's name may be something as it may be according to the mode of dealing of the particular party. This case also is not of any help. In Nirmal Chunder Bandopadhya vs. Saratmoni Debya (3), the question that arose for consideration was about the execution of a will. The executant did not himself sign the document but under his direction his servant affixed the impression of his name stamp on the will. The learned Judges held that the will could be taken to have been executed in accordance with the provisions of section 50 of the Indian Succession Act of 1865. The judgment of the case thus turned on the express language of sec. 50 of the Succession Act. In the present case as I have already pointed out above the question is one of the mode of proving the document. It could be proved in any of the ways discussed above. Learned counsel for the respondent drew my attention to the observation in 4 QB 625. It was observed therein that to prove the execution of an instrument by a defendant on which he was sued it is enough if it is shown that the said instrument was executed by a person bearing the defendant's name and it was not necessary to give evidence strictly identifying the person whose signature is proved with the party on whom process has been served, unless facts appear which raise a doubt of the identify. I have no quarrel with these observations but they are hardly applicable to the] case in hand which is of reverse kind to the one dealt with in the case referred to by the learned counsel. In Salail Chand vs. Mt. Tamiz Bano (4) it was held that: "the execution of a document cannot be deemed proved as required by the Evidence Act merely because it is proved in the sence of the definition of the word proved. That definition of the word proved must be read along with sec. 67 of the Act. That section requires that there must be specific allegation that the signature purporting to be that of the executant is in the hand writing of the executant. Until this is proved, the court cannot proceed to consider whether execution is proved. In other words, sec. 67 makes proof of execution of a document something more difficult than proof of matter other than the execution of a document. " The case that the learned Judges were considering was about a mortgage-deed which was a registered document. The observations therefore cannot be held to lay down a general proposition applicable to the proof of all kinds of documents or writings and for that as I have already observed that the modes indicated by me have to be followed, Lastly the learned counsel cited Mt. Riazul Nisa Begam vs. Lala Puran Chand (5 ). That case related to the mode of proving attestation on a document. It was observed by the learned Judge that it was not necessary for the attenuator to point to the signature or mark of the executant. The learned Judge pointed out that it was not necessary for an attesting witness to see the actual signing of the document and it is enough for him if the executant acknowledges before him that he had signed the document. Some of the observations in this case support the view that I have already taken about the mode of proving the signatures I may cite the following passage from the judgment - "because a witness is unable to point to the signature on a document of the person whose signature he purports to have attested it does not necessarily follow that he had failed to prove that signature within the meaning of secs. 67 and 68. According to the definition of attested in sec. 3, T. P. Act, it is only necessary for the person attesting to have seen the other person sign or affix his mark on the instrument in his presence, or to have received from the executant a personal acknowledgment of his signature or mark. If either of these conditions is satisfied then there is valid attestation, and there is nothing in the Evidence Act which indicates that it is necessary for the attesting person in order to prove execution to point to the signature or mark made by the executant. That this is not necessary is clear from the fact that a person can attest merely on receiving acknowledgement from the executant of his signature or mark. Such an attesting witness is competent to prove execution as well as any other attesting witness, though he might not be able to point to the signature or mark of the executant. The definition of 'proved' in the evidence Act applies to such cases. Sec. 71, Evidence Act has no application. " What applies to the mode of proving attestation can in an appropriate case apply to the mode of proving the signatures. As observed earlier, while I am unable to endorse all what the learned District Judge has said in dealing with the matter, I am in agreement with him that the documents are rendered highly suspicious on account of the so called signatures of Ismail, in fact purporting to be those of Asulal. In view of this intrinsic infirmity in the document itself it was the duty of the plaintiffs to have clarified the position. Were he to plead fraud or misrepresentation and then try to place the necessary circumstances for inferring the existence of any fraud or misrepresentation on the side of the defendant, then the matter could have stood on a different footing, but in the absence of that as the matter stands if on account of the infirmity in the document itself the learned District Judge did not consider the oral evidence of the plaintiffs sufficient to fasten the defendant with any liability then it cannot be said that the learned District Judge could not reasonably have reached this conclusion, though I may guard myself against being understood that one could not have come to the opposite conclusion on the same material. Any way I do not find sufficient reason for interfering with the finding of fact. The result is that the appeal has no force and I hereby dismiss it. Looking to all the circumstances of the case I leave the parties to bear their own costs. . ;