041-NLR-NLR-V-61-JOSEPH-FERNANDO-Appellant-and-PEARLIN-FERNANDO-Respondent.pdf
Joseph Fernando v. Pearlin Fernando
177
1957 Present: Weerasooriya, J., and Sinnetamby, J.-JOSEPH FERNANDO, Appellant, and PEA~R.T-.TN FERNANDO,
Respondent
3. C. 233—D. C. Negomho, 16,654}L
^Evidence—Proof of execution of a deed -when attesting witness denies the execution-—Handwriting—Proof of its genuineness—Evidence Ordinance, ss. 68, 69, 71.
When an attesting witness, who is called-for the purpose of proving theexecution of a document required by law to be attested, denies the executionof the document, proof of his signature is not sufficient to establish due execution.Under section 69, read with section 71, of the Evidence Ordinance there mustbe, in addition, proof of the executant’s signature.
Quaere, whether, in the absence of other evidence and without the benefit ofthe opinion of an expert, it is open to a Court, on a mere comparison of twodocuments containing respectively an admitted signature and a signature whichis repudiated, to express the opinion whether the two signatures are of one
oHus&jXid p8rson>
1 (1899) 3 N. L. R. 325.
178
WEERASOOR-IYA, J.—Joseph Fernando v. Fearlin Fernando
^^-PPEAL from a judgment of the District Court, Negombo.
Ivor Misso, with A. Nagendra, for the 2nd defendant-appellant.
R.S. R. Coomaraswamy, witii B. B. Vannitamby and T. G. Gumaselccra,for the plaintiff-respondent.
Cur. adv. vult.
February 16, 1957. Weekasoobiya, J.—
The substantial question which arises in this appeal is whether therlearned trial Judge was right in holding that deed No. 154 of 1933, whichis one of the deeds relied on by the plaintiff-respondent in proof of hertitle to the entirety of the land in suit, and of which PI is a certified copy,had been duly executed* Deed No. 154 is a deed by which the 1stdefendant (who died while the action was pending) and one of herchildren, Emaline, purported to sell the land for a sum of Rs. 6,000 to-one Matilda Pieris. Although the deed purports to convey the entireland, actually the 1st defendant was entitled to only an undivided three-fourths share, and Emaline to an undivided one-sixteenth share, at thetime of its alleged execution.
The 2nd defendant, who is the appellant and a son of the 1st defendant,claims to have acquired the undivided three-fourths share of the 1stdefendant by virtue of a subsequent deed, D4 of 1951, from the 1stdefendant.
The 1st and 2nd defendants in the answer filed by them challengeddeed No. 154 as a forgery, and certain of the issues on which the casewent to trial related to the questions whether the signature on it pur-porting to be that of the 1st defendant was a forgery and whether it hadbeen duly executed. Although the name of the attesting notary wasincluded in the list of witnesses filed by the plaintiff, and summonsissued on him, the plaintiff refrained from calling him at the trial, on theground, as stated by her counsel, that he was “ not available Priorto the trial, and shortly before her death, the 1st defendant was examinedon commission as a witness, and she denied having been a party to anytransaction as embodied in PI. Neither PI nor the original deed or theduplicate, nor the other certified copy, Pla, (all of which were sub-sequently produced at the trial) was shown to her.
The names of the two attesting witnesses in PI refer to the 2nddefendant and one Leo Fernando (who is the husband of Emaline).The question whether in the absence of the notary and in view of theevidence given by the 1st defendant It was incumbent on the plain* iff tocall one or other of the attesting witnesses was discussed at the tidal andcounsel for the plaintiff conceded the burden being on the plaintiff (as itundoubtedly was) to eajl one of them. He ultimately decided to call the2nd defendant who, however, denied in his evidence that he signed thedeed or was present at its execution. In the course of his examinationby counsel for the plaintiff he was shown what, presumably, was theproxy granted by him for the purposes of this case and he admitted that
WEERASOORIYA, J.—Joseph Fernando v. Feartin Fernando
179
the signature m it looked like his. He was next shown an unmarkeddocument, described in the transcript of the evidence of the witness asthe “ original deed ” and he denied that a particular signature appearingin it, and to which his attention seems to have been drawn, was his. Itis not known what this document is, nor is the original of PI to he foundin the case record ; and none of the counsel who represented the partiesat the hearing before us could throw any light on the matter.
In the course of the address of counsel for the plaintiff he seems to haveinvited the trial Judge to compare the signature of the 2nd defendant inhis proxy with his purported signature in the unmarked documentdescribed as the “ original deed ”, -with a view to satisfying himselfwhether the signature in the “ original deed ” was that of the 2nddefendant, and it appears from the judgment that the learned Judgeproceeded to compare the 2nd defendant’s signature in his proxy with asignature appearing, not in the document described as the “ originaldeed ”, but in the document PI* which is referred to in the judgment asthe protocol (of deed No. 154) ; and the Judge came to the conclusionthat the 2nd defendant had signed Pla as a witness, but on what groundshe came to that conclusion are not set out. in the judgment. It appearsfrom the proceedings that counsel for the plaintiff put PI* in evidence asbeing the duplicate of deed No. 154. An examination of PI* shows,however, that it is neither the protocol nor the duplicate of deed No. 154,but is only a certified copy issued by the Registrar of Lands on the1st March, 1954, of the duplicate in his custody. As such, PI* is ob-viously of no use at all for the purpose of comparison with the signaturein the proxy. Since the proceedings do not show that the Registrar ofLands or any officer from his department was summoned, or attendedCourt with the duplicate, it may be assumed that the duplicate wasnever at any stage of the trial produced before the Court for inspection.If I may say so with respect to the learned trial Judge and the othersconcerned, these documents have been placed before the trial Court andreferred to in the proceedings in a most slip-shod and perfunctorymanner which is of no assistance whatever to us in dealing with this casein appeal and considering whether there was sufficient material beforethe trial Judge to enable him to come to a correct conclusion on thequestion whether the 2nd defendant was in fact a witness to theexecution of deed No. 154.
There are conflicting decisions, each of great authority, whether in theabsence of other evidence and without the benefit of the opinion of anexpert, it is open to a Court, on a mere comparison of two documentscontaining respectively an admitted signature and a signature which isrepudiated, to express the opinion whether" the two signatures are of oneand the same person. In the case of Wright1, it was held that it is opento a Court to form an opinion on such material. That is a decision in acriminal case but the ratio decidendi of it would apply to civil proceedingsas well. A contrary view was, however, expressed in the case of Saibo v.Ahamadu 2 where certain other decisions indicating the same view arereferred to.
180SIMU03TAMBY, J.—Joseph, Fernando v. Fearlin Fernando
In the present case it is not necessary, however, to express a definiteopinion on the point since we do not know precisely what document wasbefore the trial Judge for the purpose of comparing any signature in itwith the signature of the 2nd defendant in the proxy.
In the result it is not possible to uphold the finding of the learnedJudge that deed No. 154 was signed by the 2nd defendant as an attestingwitness. I would also observe that his finding, even if accepted ascorrect, is insufficient to prove the due execution of the deed since, in myopinion, the effect of section 69, read with section 71, of the EvidenceOrdinance is that there must he, in addition, proof that the signature ofthe person executing the document is in. the handwriting of that person.Such rights as the plaintiff has in the land in suit must, therefore, berestricted to. those acquired by her otherwise than throngh deed No. 154.These rights consist of the shares inherited by the 2nd, 3rd and 4thdefendants from their father (the husband of the 1st defendant) andtotalling an undivided three-sixteenths share, which share has devolvedon the plaintiff by virtue of deeds P4 and P6.
The judgment and decree appealed from are set aside and decree willbe entered declaring the plaintiff entitled to an undivided three-sixteenthsshare of the land described in the schedule to the plaint. The 2nddefendant will be entitled to Ms costs of appeal from the plaintiff. Imake no order as regards the costs of trial.
Sinststamby, J.—
In addition to the reasons given by my learned brother in his judgment,which I have had the advantage of reading, I should like to add a fewobservations of my own in support of the conclusions we have reached.
Even upon the footing that the documents wMeh the learned judgeused for the purpose of comparing the signature contained therein withthe signature on the proxy was not the document filed of record, markedPla, but the actual protocol copy or the duplicate and that his conclu-sions in regard to the identity of the signature are correct, I take theview that the plaintiff has still failed to prove due execution of theimpugned deed No. 154.
Section 68 of the Evidence Ordinance provides that a documentrequired by law to be attested shall not be used as evidence until oneattesting witness at least, if alive and subject to the process of the Courtand capable of giving evidence, has been called for the purpose of provingits execution. Section 71 provides that if the attesting witness denies ordoes not recollect the execution of the document, its execution may beproved by other evidence. One way of doing tMs may be by calling theother attesting witness. The Evidence Ordinance does not expresslyprovide that where one attesting witness is unable to give evidence of dueexecution the other must be called. It may be mentioned, however,that even where one attesting witness is able to give the evidence requiredour Courts have expressed the desirability of calling all the attestingwitnesses—vide Amolis v. Muiu, Menika 1. The question will naturally
1 {1896) 2 N. L. R. 199.
Adamjee LuJcmanjee <S> Sons, Ltd. v. JPonniah Ptffot
181
-arise whether where primary evidence of attestation is available byevidence of one witness who has not been called—it is open to a party tolead secondary evidence of due execution by proving the signature of theother attesting witness who has been called and who denies his signature.The law in England is that if an instrument is required to be attested bymore than one witness the absence of them all must be duly accountedfor in order to let in secondary evidence of execution (Taylor, Section1356).
Construing the corresponding provisions of-the Indian Act it has beenheld by the Privy Council that other evidence should not be allowedunless all the attesting witnesses alive and subject to the process ofCourt are called or their absence accounted for—vide Surendra v. BeJtari 1referred to by Sarkar in his book on Evidence.
"Where an attesting witness who is called denies his signature and thefact of execution the situation that arises would be the same as wherethere are no attesting witnesses available. In that case the proof musthe given of due execution and the law stipulates that this can only bedone by proof of the signature of one attesting witness and also proofthat the signature of the person executing the document is in his or herhandwriting—vide section 69. The learned judge was under the im-pression that if the signature of one attesting witness is proved thatestablishes due execution. In my view this is insufficient for thepurpose. There must also be proof of the executant’s signature. Evenon the footing that the learned judge’s conclusions are correct, theplaintiff has therefore failed to prove due execution of PI.
Decree set aside.