H. A. CHARLES PERERA and another, Appellants, and M. L. MOTHA and another, Respo

061-NLR-NLR-V-65-H.-A.-CHARLES-PERERA-and-another-Appellants-and-M.-L.-MOTHA-and-another-Respo.pdf


294
Charles Pwstra «. Motha
Present: Basnayake, C.J., and H. N. G. Fernando, J.
H. A. CHARLES PERERA aud another, Appellants, and M. L. MOTHA
and another, Respondents
S. C. 268/1959—D. C. Colombo, 5293/MB
Handwriting—Opinion of expert—Weight—Evidence Ordinance, ss. 5, 46, 47, 59.
The evidence of a handwriting expert must be treated as only a relevant fac fcand not as conclusive of the fact of genuineness or otherwise of the hand-writing in question. The expert’s opinion is relevant but only in order toenable the Judge himself to form his own opinion.
Mortgage—Bond given to secure future debts—Promissory note given, thereafter inrespect of pre-existing debts—Incapacity of payee to sue upon the bond.
When a mortgage bond i9 executed ae security for the payment of moneywhich will fall due on promissory notes to be given in respect of debts whichmay be incurred in future, after the execution of the bond, a hypothecary actiondoes not lie on the bond in reepect of promissory notes given after the date ofthe bond but in substitution for debts already due from the mortgagor to themortgagee prior to the execution of the bond.
.A.PPEAL from a judgment of the District Court, Colombo.
H. V. Perera, Q.C., with. W. D. Ounase/cera and E. E. P. Cooray, fordefendants – appellan ts.
Nadesan, Q.C., with C. Ranganathan and M. Shanmugalingam,for plaintiffB-reepon dents.
Cur. adv, milt.
BASNAYAKE, C.J.—Charles Per era v. Motha295
March 24, 1961. Bashayaks, C.J.—
I have had the advantage of reading the judgment prepared by mybrother. I am in entire agreement with him. But I wish, to add oneword to what he has said on the subject of the correct approach to thejsyidence of experts.
Under our law (Evidence Ordinance, s. 5) " Evidence may be given inany suit or proceeding of the existence or non-existence of every fact inissue, and of such other facts as are hereinafter declared to be relevantand of no others. ”
Opinions of persons as to the identity or genuineness of handwritingare declared to be relevant facts by sections 45 and 47 of the EvidenceOrdinance. The former section declares that the opinions as to identityor genuineness of handwriting of persons specially skilled in such questionsare relevant facts, while the latter section declares that the opinion ofany person acquainted with the handwriting of another that it waswritten or signed by that other is a relevant fact. In practice the classof persons whose opinions are declared to be relevant under section 45are described ** experts ”. As we are here concerned with the opinion ofan " expert ” on handwriting I shall confine what I have to say to theopinions of “ experts ” on handwriting. In tbe first place for the opinion■of an “ expert ” on handwriting on the question of the identity orgenuineness of handwriting to be a relevant fact in a given case, it shouldbe one in which the Court is called upon to form an opinion as to theidentity or genuineness of handwriting. Secondly the person who givesoral evidence as to the identity or genuineness of handwriting must beone who is specially skilled in questions as to the identity or genuinenessof handwriting. Whether he is a person specially skilled in such questionsis a question of fact to be decided by the Court. If he is not such aperson his opinion would not be a relevant fact in the case.
The fact which is declared to be relevant by section 45 stands in thesame position as any other relevant fact which the Court has to takeinto consideration in forming its opinion as to the identity or genuinenessof the handwriting in question. It is important to remember that it isthe Court that is called upon to decide the question of identity or genuine-ness of handwriting and not the “ expert ” . The expert’s opinionis only a relevant fact to be taken into account in forming the opinion ofthe Court. Cases which have come up before us in appeal indicate atendency on the part of Judges to regard the opinion of persons whodescribe themselves as handwriting experts as conclusive on the questionof identity or genuineness of handwriting and not merely as a relevantfact, like any other such fact, to be taken into account in arriving at theCourt’s opinion as to the identity or genuineness of the handwriting inquestion. A Court should guard against that tendency. The duty offorming the opinion as to the identity or genuineness of the handwritingis on the Court and the Court alone. The expert’s opinion on the pointsof identity or genuineness of the writing is a relevant fact in forming its
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BASNAYAKS/, QJ.—Cfhorlae Par era v. Moiha
opinion. The weight to be attacked to snob, a fact would dependon the circumstances of each case. The standing of the expert, his skilland experience, the amount and nature of the materials available forcomparison, the care and discrimination with which he has approached
the question on which he is expressing his opinion, the extent to whichhe has called in aid the advances of modern science to demonstrate tothe Court the soundness of his opinion, are all matters which will assistthe Court in assessing the weight to be attached to the fact of his opinion.The cross-examination of the " expert ” by the opposing side, whereit is properly directed, would also assist the Court in determining whatweight it should attach to the fact declared relevant by section 45. Inthe instant case the Court was called upon to form an opinion as to thegenuineness of the signatures on documents X5 and X6. The AssistantGovernment Examiner of Questioned Documents, who was called by theplaintiff, stated that he had before him 14 documents signed by the 1stdefendant alone and 4 documents signed by both defendants. Heexpressed the opinion that the documents X5 and X6 had been signedby the 1st defendant. He did not explain how he reached his conclusionalthough he had made photographic enlargements of the signatures. TheCourt was therefore not afforded any assistance in performing its functionof determining the genuineness of the signatures in question. An“expert ” should endeavour to assist the Court by explaining the processesby which he reaches his conclusion and by giving the reasons for it;he should not be content with merely expressing his opinion. Bothdefendants on oath impugned the signatures in question. Now thelearned District Judge, instead of treating the opinion of the AssistantGovernment Examiner of Questioned Documents merely as a relevantfact which fell to be considered along with the other relevant facts informing his opinion as to the genuineness or otherwise of the signaturesin question, treated it as conclusive of the dispute without forming anopinion himself as to the genuineness or otherwise of the signatures ashe should have. He says :
“ The 1st defendant denies his signature on the promissory notemarked X3. The evidence of the handwriting expert called by theplaintiff proves beyond any doubt that the signature on this promissorynote is that of the 1st defendant. The two defendants have also deniedtheir signatures on the two promissory notes X5 and X6 on which theplaintiffs base their claim in this action. Again the evidence of thehandwriting expert leaves no room for doubt whatsoever that at leastthe signature of the 1st defendant appears on these two notes. ”
It would appear from the words I have quoted that the learned Judge'sapproach to the opinion of the Assistant Government Examiner ofQuestioned Documents was wrong. He treated it not as a relevant factbut ae conclusive of the fact of genuineness of handwriting.
H. N. G. FERNAiJDO, J.—Charles Per era v. Motha
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I wish also to advert to an incidental matter. The Assistant Govern-ment Examiner of Questioned Documents in the course of giving evidenceproduced a report marked X20. He said :
“ I produce my report marked X20 and the enlarged photographsof these signatures marked X21. I photographed and developed thesephotographs. This is a report sent by me on a commission issued byCourt. This report is signed by two examiners which is a practicecustomary in our Department. The other examiner also examinedand signed the report after having agreed with me. ”
All facts except the contents of documents must be proved by oral•evidence (s. 59). The report which the witness produced is neither oralnor documentary evidence. It is a record of the testimony he proposedto give in Court. Our Evidence Ordinance does not sanction a procedureby which a witness who gives oral evidence may reduce to writing hisviews on the matter on which he is called to give oral evidence and producethe writing at the end of his examination-in-chief. What is worseis that in the instant case the witness claimed that the writing hetendered to the Court contained not his views alone but also those ofanother, who was not called by either side as a witness.
H. N. G. Fernando, J.—By a Mortgage Bond dated 30th July 1953 the two defendants, husbandand wife, bound themselves to the plaintiff Firm, consisting of twopartners, in the sum of Rs. 100,000, and hypothecated certain propertiesfor securing the payment to the firm of “ all sums of moneys payable asspecified in the Recitals hereto, or under or by virtue or in respect ofthese presents
The first of the Recitals is that “ the Obligors ”, (the defendants),“ have requested the said Obligees to supply us on credit with the pro-ducts manufactured by the said Obligees to lend and advance moneysto us the said Obligors upon cheques, I. O. U. chits promissory notesmade or endorsed by us the said Obligors or any of them …. inthe aggregate to the extent of a sum at the discretion of the said Obligeesand the said Obligees agreed to do so upon our entering into and grantingthis security unto the said Obligees ”. The next Recital was that theObligors had requested the Obligees to “ allow us the use of their motorlorries and vans fully described in the second schedule for the sale and•distribution of the products manufactured by the Obligees and theythe said Obligees have agreed to give us the said Obligors the use oftheir lorries and vans fully described in the second schedule hereto uponour entering into and executing these presents and agreeing to be res-ponsible for all damages by accident and use other than those covered"by the Insurance Policies in respect of such vehicles entrusted to ourcare by the said Obligees such damages to be incurred hereafter being-also part of this security Bond and shall be covered by this Bond and
29S
H. 2*. G. FEBHA2ID0, J.—^Jharlaa F»*ra ». Moiho
, -.— n— i—■
security Thereafter in the Bond the parties agreed that the totalextent of the security and liability in their aggregate upon the Bondshall be Ra. 100,000.
The plaint in this action refers firstly to the relevant provisions ofthe Bond and thereafter contains in paragraph 6 the following averment:
££ In pursuance of the said Bond the defendants became indebtedto the plaintiffs in a sum of Rs. 39261/71 on promissory note dated1st August 1953 and in a sum of Rs. 47987 /- on promissory note dated1st August 1953 respectively marked P2 and P3.”
Alleging that the sum of Rs. 87,000/- odd has not been paid, the plaintprays for judgment in the said sum with interest and a hypothecarydecree for the sale of the properties mortgaged by the Bond.
The defendants pleaded and alleged in their answer that neither ofthem had signed the promissory notes and on that account denied liability.The learned District Judge rejected this defence, and, holding that the1st defendant had at any rate signed the promissory notes, has enteredjudgment in favour of the plaintiffs.
The first issue framed on behalf of the plaintiffs was : 1£ What amountis due to the plaintiffs on the security Bond No. 1871 dated 30.7.53attested by K. Rasanathan and the two promissory notes both dated
8.53 V'. Having regard to the terms of the Mortgage Bond which havebeen set out above, the hypothecation was for the purpose of seemingthe payment of all sums of money payable as specified in the Recitals-hereto. There are only two Recitals, the first being that the Obligorshave requested the Obligees to supply them on credit with products, andto lend and advance moneys to them, and that the Obligees had agreed to do so.The second Recital relates to the motor vehicles and concludes bystating that damages to be incurred hereafter (to the vehicles) shall becovered by the Bond. In these circumstances counsel for the plaintiffsin appeal could not attempt to argue that the Bond was anything but asecurity for the payment of debts which may be incurred by the defen-dants after its execution and damages to the vehicles which may occurthereafter. In so far as promissory notes are contemplated, the Bondcovered liability only on notes which may be given for credits or loans oradvances made after 30th July 1953.
The evidence given by the 2nd plaintiff at the trial constitutes a per-fectly clear version of the circumstances in which the two promissorynotes were alleged to have been executed. In brief, that version wasthat the 1st defendant had borrowed money from the 2nd plaintiff andalso had for a considerable period been obtaining goods on credit, that thedebt owing by the 1st defendant on this account was represented by anumber of I.O.U. chits and promissory notes whioh he had signed fromtime to time, and that at the time of the execution of the Bond the totalliability on this score represented the aggregate of the two amountsspecified in the promissory notes. Very shortly after the execution
H. N. G. FERNAJ'JDO, J.—Charles Perera v. h&otha
299
of the Bond (in fact only a day or two later) the amount of the outstand-ing debt was ascertained by reference to the various documents and inrespect of the full debt then due the defendants on 1st August 1953signed the two promissory notes referred to in the plaint. The 2nd^plaintiff said that these debts were due to him personally because theFirm was not able to give the credit but that circumstance is not relevantfor present purposes. What is important and indeed decisive is that thetwo promissory notes, if they were in fact executed by the defendants,were in reality substitutes for a number of I.O.U. chits and promissorynotes upon which the 1st defendant had previously become liable, butwere not given by the defendants in circumstances contemplated inthe Mortgage Bond, namely in consideration of credits, loans or advancesmade to the defendants or either of them after the execution of the Bond.Apart from the 2nd plaintiff’s evidence as to the actual circumstances inwhich the notes came to be executed there was also at the trial his ex-pression of opinion that the Bond was a floating Bond, which ordinarilyat any rate, is intended to secure future debts. If in fact this was notso, and the object of taking the Bond was to obtain covering security foran alleged existing debt of so large an amount as Rs. 87,000/-, it wasmost unfortunate for the 2nd plaintiff that the Bond is in a form quiteirreconcilable with such an object.
The first issue framed at the trial placed upon the plaintiffs the burdenof proving that the sums specified in the promissory notes fell due onthe Bond of 30th July 1953. Since according to the 2nd plaintiff thenotes were executed in consideration not of a transaction contemplatedin the Bond but instead of a pre-existing liability due to the 1st plaintiffalone the amounts so specified cannot be said to be due on the Bond.
The legal position I have just been considering passed unnoticed bythe learned trial Judge and perhaps also by counsel who appeared for thedefendants, but as Mr. H. V. Perera argued it is perfectly in order toconsider this question at the stage of appeal. Plaintiffs had to satisfythe Court that the promissory notes were executed in consideration oftransactions contemplated in the Bond. This the plaintiffs could do bygiving evidence of the circumstances in which the notes came to beexecuted. The plaintiffs cannot now complain that they would havetestified to an entirely different set of facts if they had realised the precisepoint which issue No. 1 required them to establish. In such a situationthe learned trial Judge should have dismissed the action without callingfor a defence because the cause of action relied on was a liability on theBond and not the liability on tbs notes. That which he should havedone at that stage it is the duty of this Court now to do. Counsel forthe plaintiffs did not invite us to hold that if the plaintiffs are not entitledto a hypothecary decree they are at least entitled to a money decree inrespect of the notes. Nevertheless it seems desirable to consider thecorrectness of the learned District Judge’s finding of fact that the 1stdefendant executed the two promissory notes dated 1st August 1953.His reasons for that finding are based partly upon an examination of the
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H. IT. G. FERiTANUO, J,—Ghorlae P«rsm v. Mciha
teems of the Mortgage Bond itself, partly an the evidenoe of the hand-writing expert and partly on his belief of the evidence given by the2nd plaintiff.
He says that it iB absurd for the defendants to contend that they gavethis Mortgage Bond solely for the purposes of securing the motor vehiclesthat were entrusted to them. This statement of the learned Judge isfactually incorrect because the let defendant’s evidence was that afterexecuting the Bond he did obtain goods on credit; that in fact he hadbeen sued upon* a promissory note dated 17 August, 1954 for a sum ofRs. 19,000/- odd plus interest and had consented to judgment. Hisposition was that the Bond was intended to oover and did in fact coverfuture credits and constituted in addition a security in respect of theentrustment to him of the motor vehicles belonging to the plaintiffs.There is little doubt that the value of the vehicles must have been aboutRs. 50,000/- or more, so that in respect of half at least of the penal sumof Rs. 100,000/- specified in the Bond, it was in my opinion quitereasonable for the defendants bo maintain that the Bond was execu-ted partly in consideration of the defendants’ liability at some stage torestore possession of the vehicles and to repair any damage mentionedin the Bond.
The learned Judge then states that it is absurd to contend that thedefendants owed no moneys to the plaintiffs at the time of the executionof the Bond. His only reason for this opinion is that the documentX22 dated 11th December 1951 shows that a sum of Rs. 43,000/- oddless commissions amounting to Rs. 16,000/, i.e. a sum of Rs. 27,000/-was due to the plaintiffs at that date. I am unable to see how the factthat Rs. 27,000/ was due at the end of 1951 serves to prove that a debtof Rs. 87,000/ must have been due in August 1953. X22 itself demon-strates that in five months the 1st defendant earned a commission of overRs. 16,000/. The chance that the debt would become reduced and notincreased was at least even. Moreover the learned Judge failed to giveany weight to the significant circumstance that the Bond made no men-tion of any pre-existing debt. If indeed it were time that the principalpurpose of the Bond of 30th July 1953 for a sum of Rs. 100,000/ was inorder to secure cover for a pre-existing debt of Rs. 87,000/, it is in my.opinion most surprising that this most important object was not referred•to in the Bond. Surely if that was the object, the normal and reasonablecourse would have been to ascertain the total liability prior to 30th July1953 and to cause it to be covered by the terms of the Bond or at leastto state in the Bond that such ascertainment would take place afterexecution.
In regard to the evidence of the handwriting expert, I do not think itwas approached in the correct manner by the learned Judge. He statesthat that evidence “ leaves no room for doubt whatsoever that at leastthe signature of the 1st defendant appeara on these two notes Inother words he regards the signature as being proved purely because ofthe opinion of the expert. This approach does not accord with section45 of the Evidence Ordinance whereby the expert’s opinion is relevant
H. 1ST. G. FERNANDO, J.—Charles Perera v. Motha
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“but only in order to enable the Judge himself to form his own opinion.The correct approach is referred to in the Privy Council decision inWakeford v. Lincoln {Bishop)l.
“ The expert called for the prosecution gave his evidence withgreat candour. “ It is not possible,” he says, “ to say definitely thatanybody wrote a particular thing. All you can do is to point out thesimilarities and draw conclusions from them ”. This is the mannerin which expert evidence on matters of this kind ought to be presentedto the Court, who have to make up their minds, with such assistanceas can be furnished to them by those who have made a study of thesematters, whether a particular writing is to be assigned to a particularperson. Questions depending upon handwriting are in many casesdoubtful, and in the past have given, and in the future will give,cause for great anxiety in courts of justice ”.
Reference to the proper approach was made recently by Sinnetamby, J.in Qratiaen Perera v The Queen 2 :
“ I think the modern view is to accept the expert’s testimony if thereis some other evidence, direct or circumstantial, which tends to showthat the conclusion reached by the expert is correct, provided ofcourse the Court, independently of the expert’s opinion, but with hisassistance, is able to conclude that the writing is a forgery.
“ The Judges of our Courts as well as of the Indian Courts, havemade it clear that it is the function of the Court, with the assistanceof an expert, to decide on the similarity of handwriting, and that it isnot proper to act solely on the opinion of the expert.”
In considering whether the 1st defendant signed the notes, the ques-tion whether the signature alleged to be that of the 2nd defendant wasitself genuine was highly relevant. As to this the learned District Judgethought it was “ unfortunate that sample signatures of the 2nd defen-dant were not available to the handwriting expert to express an opinion ”.Here again he lost sight of the fact that sample signatures were in factavailable to the plaintiffs : there were the admittedly genuine signaturesof the 2nd defendant on the Mortgage Bond and on the Proxy filed in theaction. What was unfortunate to my mind was that the plaintiffs didnot think it fit to make the sample signatures available to the expert.Their omission so to do gives rise to an inference that they did not havethe confidence that the expert’s opinion as to the 2nd defendant’s signaturesin the notes would be in their favour. Equally unfortunate was thefailure of the trial Judge to refer to the 2nd defendant’s testimony denyingher signature on the notes If there was, as I think there was, somedoubt as to the genuineness of the 2nd defendant’s signature on thetwo notes that circumstance itself would cast doubt on the genuinenessof the 1st defendant’s signatures on the same notes.
With regard to the oral testimony the learned District Judge merelystated that he had no reason to doubt the evidence of the 2nd plaintiff
1 1921 L. J. P. C. 174 at page 179 ad finem.s 61 N. L. R. 522 at 524.
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H. N. G. FERNANDO, J,—Otorfaa Pjwa
that the two defendants did come to his house and there signed the twopromissory notes. Ho doubt the judge may have bean impressed with,the manner in which the 2nd plaintiff gave his evidence ; but it does seemto me that his acceptance of that evidence was based largely upon the
considerations to which I have^ust referred and which in my opinion wereof little weight for reasons T have attempted to sta te. On the other handthe evidence as it reads is of so unsatisfactory a nature particularly havingregard to the fact th? t it cam( from a businessman who spoke to trans-actions involving considerable sums of money. For instance, while healleged that he had for a considerable period allowed the 1st defendantto take goods on credit, ha did not produce any hook of accounts in whichwas reflected any of the alleged transactions. Indeed he admitted thathis books did not contain any indication that the transactions were oncredit. His explanation was that although the 1st defendant did notpay for the goods as taken the transactions were entered in the books asbeing cash transactions. This he said was because the Firm (whichconsisted of himself and one other partner) could not allow the credit andthat credit was allowed by him personally. He made no reference howeverto the source from which he was able to provide cash in large amountswith which to pay into the Firm the price of the goods supplied to the1st defendant. If a businessman maintains his boots in such a way thatwhat is alleged to have been a credit transaction is reflected in the booksas being one for cash, he can scarcely expect a Court to give credence tohis allegations.
If the books had been produced, the plaintiffs could at least have pointedto the relevant cash entries in order to establish that there had been infact large transactions, the total value of which by August, 1953, hadamounted to over Rs. 80,000. The failure to produce them even toestablish this prima facie neutral fact justifies the opinion that even suchfact could not have been thus established.
Nor again was the 2nd plaintiff able to give any satisfactory reasons forallowing the 1st defendant to incur unsecured debts in so large a sum asRs. 87,000. If as he maintained bis own business was a profitable onethere was no reason why the principal and perhaps sole agency for thedistribution of those products was entrusted to a person who accordingto the plaintiff didnot merely keep for himself a margin of profits realisedupon disposal of the goods hut appropriated for himself a large partof the value of the goods themselves. The explanation for this quiteextraordinary state of affairs is entirely unsatisfactory.
For these reasons I would hold that the learned District Judge waswrong in his conclusion that the plaintiffs had satisfactorily proved thesignature by tbe 1st defendant of the two promissory notes referred to inthe plaint. That being 30 the plaintiffs are not entitled to judgment fortbe amounts of the notes on the basis of e simple money claim. Thejudgment and decree appealed from are set aside and decree will beentered dismissing the plaintiff’s action with costs in both Courts.
Appeal allowed.