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Present: Bertram C. J. and De Sampayo J.
HERATH SINNO e. APPUHAMI.
69—D. 0. Negombo, 1,806.
Handwriting—Forgery—Handwriting expert examined by Court ofAppeal—Forgeries by tracings.
H. J. C. Pereira, for appellant.
E. W. Jayawardene (with him Croos-Dabrera), for respondent.
Cur. adv. vuU.
November 25,1920. Bertram C.J.—
This is a very remarkable case. It is the case of a will which isimpugned as a forgery, and it is attested by no less than fivewitnesses. It was drawn, by a notary’s clerk living at a distance offive miles from the house in which the alleged testator died. Therewas a notary living within two miles of this house, but the pro-pounder of the will explains that he was not on good terms withthis notary, and, therefore, went further afield to the office of anotary who had, as a matter of fact, the right to practise at theplace where the will was drawn. This notary being absent, thenotary’s clerk, who says he had drawn fifteen previous wills, wentto the house, received instructions, so he alleges, and drew up thewill on the spot. It was then executed in the presence of fivewitnesses. The learned District Judge who heard all the witnesseshas delivered a very vigorous judgment upholding the will in veryuncompromising terms. He examined the contention that the willwas a forgery, and rejected it observing that he had no doubt aboutthe genuineness of the will: There is one part of the case, however,which the learned Judge seems hardly sufficiently to have examined,and that is the signature of the will and its correspondence with anadmittedly genuine signature of the supposed testator on anotherdocument. The other document was, in fact, in the house where12*
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Herath Sinnov. Appuhami
the will was said to have been signed. It was a document executedby the propounder of the will transferring certain properties to thedeceased, who was his son-in-law, in anticipation of the deceased’smarriage with the propounder’s daughter. It is a remarkable factthat the will which disposes of all the deceased’s numerous pro-perties specifies the same properties which are mentioned in thisearlier document, but refers to all the rest of his properties withoutspecification. It is suggested that this document being in the houseit was made use of for the purpose of forging the will, and thesignature to the will bears a very remarkable resemblance to thesignature on the earlier document, so remarkable that it appears tobe a- tracing of the signature on that document. I have alwaystaken it that when one signature is shown to be a tracing of anotherwhich is genuine, that of itself is almost conclusive evidence thatthe traced signature is a forgery. There may be some specialexplanation, but, at any rate, such.a signature is open to the gravestsuspicion. In view of the remarkable correspondence in these twosignatures, we acceded to a request by Mr. II. J. C. Pereira thatexpert evidence should be called in this Court, and Mr. C. T. Symons,the Public Analyst, who is also a handwriting expert, has given usa very full and careful report on the subject of this, signature,&nd he has also given evidence before us. Mr. Symons producedvarious text books to which he referred in his report, and I shouldlike to cite them with reference to the general impression which Ihave formed, from other sources based partly on the well-knownPiggot and partly on other cases within my experience, ,thattraced signatures are primd facie forgeries. Mr. Symons referred toHardless on “ Forgeries in India,” where that principle was onlyadmitted, subject to very great qualifications. The author of thatbook refers to signatures which arp reproduced in his book, as towhich he says that “ there are examples of coincidences and super-imposing occurring among genuine signatures.” It does not appearto me on examining these reproductions that they are so apparentlytracings as to come within the principle. There are certaincorrespondences of measurement referred to, but I am not clear, atany rate, in regard to some of them, that the signatures referred tocan be described as having the appearance of tracings. Anotherauthor referred to by Mr. Symons, “ Ames on Forgeries,” has thispassage at page 69: “ Forgeries by tracings usually present aclose resemblance in general form to the genuine, and are thereforemost sure to deceive the unfamiliar or casual observer. It some-times happens that the original writing from which the tracingswere made is discovered, in which cage the closely duplicated formswill be positive evidence of forgery.”
The author points out that traced forgeries are not exact dupli-cates, since it is very easy to move the paper by accident or designwhile the tracing is being made as appears to have been done in the
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present case. Another author cited by Mr. Symons, ‘ ‘ Blackburn onthe Detection of Forgery,” published in 1909, has this passage:“ There is a well-knoWn case of forgery being brought home to theperpetrator through the accuracy of the tracing. It is a fact easilyproved that no man can write a word twice so exactly, that ifthe two are overlaid they fit. If two such signatures be produced,it is safe to assume that one has been traced or otherwise mechani-cally produced,” and he refers to a case in which, as in the presentcase, the original document used for the purpose of the forgery hadbeen in the possession of the supposed forger. Mr. Symons said thatit is possible that one genuine signature may be so like another asto have the Appearance of being a tracing, but he makes the acuteobservation that this only happens when a man’s signature followa regular form. It cannot happen where, as in the presentcircumstances, a man's signature do not show any marked uni-formity.
I am very much struck with the report of Mr. Symons, and I thinkthat his evidence confirms very strongly the impression we hadformed.. There are two points in his report which greatly impressme. There are certain characteristic features in all the genuinesignatures of the deceased whch do not re-appear in the forgedsignature. Mr. Symons says that there is a marked spur at thecommencement of certain letters in the genuine signature, andgives several examples of it. This spur disappears in the tracing,a result which might well happen owing to the difficulty of tracingone signature from another over paper. Small peculiarities like thiswould not be visible through the paper. There is also the factwhich he pointed out that the signature has obviously been touchedup in certain places. I observe, too, in one letter the mute symbolis made in such a way that it does not correspond to the manner inwhich the same mute symbol is regularly made in all the-genuinesignatures. I do not believe that the testator could have made thismute symbol in this peculiar way, but it is a deviation which mightwell occur in tracing. There is also this striking fact. The signatureis very carefully and firmly made. Now, there is definite evidencethat the supposed testator was extremely ill. It was because hewas so ill that a notary was sent for to make his will. The pro-pounders of the will are in this dilemma. If he was very ill, it is notlikely that he would make so firm and clear a signature. If he wasnot ill, there is no reason why he should not have waited until theservices of the notary himself were available. I am unable toresist the report of Mr. Symons and the effect of the circumstanceswhich he points out.
In spite of the impression that the witnesses made upon thelearned Judge, it seems to me that there can be no doubt that thesignature of this supposed will was a very deliberate forgery, and aforgery of a very gross and scandalous character.
Hcrath Sinnov. Appukami
. I would, therefore, allow the appeal, and in view of the circum-stances that have oome to light, I think that the record, after beingtransmitted to the District Court, should be returned to this Courtwith all the documents and the report and papers prepared byMr. Symons, and should be sent to the Attorney-General for suchaction as he may seem fit to take in the matter.
De Sampayo J.—I entirely agree.
HERATH SINNO v. APPUHAMI