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Present: Pereira J. and Ennis J..
ANOHAMT et al. v. PEDBIS ei al.
353—D. G. TangdUa, 1,251.
proof of deed signed by a cross—" Signature”— Mark Betdence
Ordinance, ss. 68 and 69.
In order to prove a deed signed by ineans' of a cross or mark,if no attesting witness can be found, it must be proved that theattestation of one attesting witness at least is in his handwriting,and that the marie of the person executing the document was madeby him on the document.
The word “ signature " in section 69 of the Evidence Ordinancemust be taken to include a "mark.”
JJIHE facts appear sufficiently from the judgment.
Bartholomeusz, for the plaintiffs, appellants.—The word “ signa-ture ” in section 69 does not include a mark. Handwriting meansthe fonning of letters with the hand, and does not mean a cross or amark. It is impossible to prove a mark if the attesting witnessesare dead. This is a casus omissus, and the Court should, be satisfied!with reasonable' proof of the deed. The Interpretation Ordinancedoes not affect the interpretation of this section. Counsel citedAmir Ali on Evidence—Commentary to section 69; 1 Tamb. 28.
Bawa, K.C., Acting S.G., for the defendants, respondents, notcalled upon.
February 20, 1913. Pereira J.—
There is very strong evidence of possession by the defendants ofthe land in claim, and it was only by proving deed No. 4,105 of'March 21, 1885, that the plaintiffs could succeed. Their contention,that the defendants' possession must be taken as having enured totheir benefit is maintainable only on the assumption that they wereco-owners of the land in dispute, and they could not "be co-ownersunless the deed referred to was duly executed by the two women,Sipilihami and Lokuhami. Now, sections 68 and 69 of the EvidenceOrdinance provide that in order to prove a deed required by law tobe attested, if no attesting witness can be found, it* must be provedthat the attestation of one attesting witness at least is in his hand-writing, and that the signature of the person executing the documentis in the handwriting of that person. In fEe present case it may beassumed that it has been proved that the signature of one attesting
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witness is in his handwriting, but the marks of the persons executingthe document have not been shown to have been made by them onthe document. It has been argued that the latter provision, ofsection 69 does not apply to the case of a person who signs, so to say,by means of a cross or mark.. There is no reason to suppose that itwas the intention of the Legislature to render a -deed, executed bysuch an individual easier of proof than one executed by a literateperson; and, moreover, section 2, sub-section (17), of the Inter-pretation Ordinance, 1901, provides that the word “ sign M withits grammatical variations and cognate expressions shall, withreference to a person who is unable to write bis name, include“mark" with its grammatical variations and cognate expressions.That being so, .the word “ signature ” in section 69 of the EvidenceOrdinance must be taken to include a mark. The case cited to usfrom Tambyak's Reports (voL Ip. 28) was decided long anterior tothe passing of the Interpretation Ordinance, 1901.
I would dismiss the appeal with costs.
Ennis J.—I agree.
ANOHAMY et al v. PEDRIS et al