080-NLR-NLR-V-50-CADER-SAIBO-Appellant-and-AHAMADU-Respondant.pdf
Coder Saibo v. Ahamadu
303
1948Present: Dias and Basnayake JJ.CADER SAIBO, Appellant, and AHAMADU, Respondent
S.C. 48—-D. C. Kandy, 1,020
Document—Dispute as to genuineness—Mere comparison with, admittedwriting—No finding on oral testimony.
Where there is a conflict of direct testimony as to the genuineness of adocument it is dangerous to base a decision on a mere comparison othe document with admitted signatures. The decision in such a casemust depend on the view formed by the Judge of the oral testimony.
Appear, from a judgment of the District Judge, Kandy.
(.1947 ) 48 N. L. S. 293.
304
BA8NAYAKE J.—Coder Saibo v. Ahamadu •
A. L. Jayaeuriya, for plaintiff appellant.
C. Renganathan, with N. Nadarasa, for defendant respondent.
Cur. adv. vuU.
March 8, 1948. Basnayake J.—
The parties to this action are brothers. One Ran Banda sold the landdescribed in deed Pi to the plaintiff-appellant (hereinafter referred toas the appellant). The defendant and one Dingiri Banda were instru-mental in bringing about the sale. The purchase price of Rs. 1,500 wasnot paid entirely in cash. A sum of Rs. 1,200 was paid down. For thebalance the appellant executed a note in favour of Ran Banda. Theproceeds of the sale were shared by the defendant and Dingiri Banda.Within a few days of his purchase the appellant discovered that the landwas the property of a temple and that Ran Banda had no title to it.
. Ran Banda was therefore made to take back the land and refund thepurchase price. As he was short of money upon the execution of the■deed of retransfer, the purchase price was repaid in the followingmaimer :—
(а)A sum of Rs. 480 was paid in cash in the presence of the notary ;
(б)two promissory notes for Rs. 360 were given ;
(c) the promissory note given by the plaintiff to Ran Banda wascancelled.
This action is in respect of the promissory note given by Mum KunaSeyad Ahamadu.
The appellant alleges that Muna Kuna Seyad Ahamadu mentionedin the attestation in PI is the defendant who had to pay his portion of theTefund because he had shared with Ran Banda and Dingiri Banda theproceeds of the original sale to the appellant.
The answer of the defendant is that the promissory note sued on wasnot given by him and that it is a forgery.
The parties went to trial on the following issues :—
Did the defendant grant the promissory note sued upon to the
plaintiff ?
What sum is due on the said note ?
The plaintiff gave evidence in support of his claim and also called thenotary who attested the deed PI. The notary stated that, althoughhe did not know the defendant and cannot now identify him, there wasnevertheless present at the execution of the deed PI a person callinghimself Muna Kuna Seyadu Ahamadu. This man gave a promissorynote for Rs. 360 to the plaintiff as part of the consideration, which facthe duly recorded in his attestation. The plaintiff asserted that that manis his brother the defendant. The fact that there were other witnesseswhom the plaintiff could have called in support of his case, but did not;
BASNAYAKE J.—Coder Saibo v. Ahamadu
305
does not entitle us to disregard the evidence given by the plaintiff aridthe witness called on his behalf. That evidence establishes that thedefendant was present at the execution of the deed PI ; that he wasas interested in the transaction as Ran Banda himself, and that it wasin their joint interest to pay the plaintiff who had a just ground foraccusing Ran Banda and himself of practising a fraud on him.
Apart from a bare denial that the defendant was either present or gavethe promissory note, no attempt was made to prove the allegation in theanswer that the note was a forgery.
The District Judge accepted the defendant’s allegation that thepromissory note is a forgery and dismissed the plaintiff’s action. Heformed that conclusion on a comparison by him, unaided by any expert,of the signature thereon with genuine standards produced in the case.
It is unsafe to take the course adopted by the learned District Judge,The method of comparison by formation has its shortcomings and cannever be relied on as a sure guide for forming any satisfactory conclusionas to the genuineness or otherwise of disputed handwriting. A personcan wilfully distort his own signature so that it may seem different fromhis true signature. Apart from that it should be borne in mind that theposture of the writer, the material on which he writes, the solemnity or theinformality of the occasion, an unfamiliar pen, fear, nervousness, excite-ment are some of the factors that affect a person’s handwriting.
The procedure adopted by the learned trial judge is one that cannotbe encouraged. It has been viewed with disfavour by the Privy Counciland repeatedly criticised by the appellate courts in India. It will besufficient to mention here the cases of Kessarbai v. Jethabai Jivan 1and Latafat Husain v. OnTcar Maiz. In the former case where there is aconflict of direct testimony, as in this case, as to whether the documentin question was genuine, the Privy Council laid down the rule that itwas unsatisfactory and dangerous to stake a decision on the correctdetermination of the genuineness of a signature by mere comparison withadmitted signatures especially without the aid in evidence of microscopicenlargements or any expert adviser.
The learned trial Judge has not expressed the view he has formedof the oral testimony in the case nor has he rejected the evidence of theappellant and his witnesses. We are therefore free to draw our ownconclusions from the evidence, and we have no difficulty in acceptingthe appellant’s version.
The judgment of the learned District Judge is set aside. Issue 1 isanswered in the affirmative and under Issue 2 the plaintiff is declaredentitled to. a sum of Rs. 430'20 being Rs. 360 principal and Rs. 70 •20-interest. The appellant is entitled to costs in both courts.
Dias J.—I agree.
1 (1928) A. I. R. Privy Council 277 at 281..* (1935) A. 1. R. Oudh p. 41 at 44.
Appeal allowed.