Fazl Ali, J.:— This appeal arises out of a money suit instituted by the appellant in the Court of the Munsif, Gopalganj. The case of the appellant was that on 25th August 1925 the defendant had borrowed Rs. 981-0-0 and executed a hand-note (Ex 1) in his favour which bore the thumb impression of the defendant. On 31st December 1925 the defendant borrowed a further sum of Rs. 100-0-0 from the appellant and on the account being adjusted between the parties it was found that a sum of Rs. 1,118-1-0 was due from the defendant and the defendant accordingly put his thumb-impression upon the fard-hisab, Ex. 2 (paper showing adjustment of account) which was prepared on that date. The appellant thus claimed to recover a sum of Rs. 1,118-1-0 with interest from the defendant. The defendant's case was that the hand-note as well as the fard-hisab sued upon were forged, that he had not borrowed any money on either of the occasions mentioned by the plaintiff and that the suit had been instituted by the plaintiff owing to enmity between him and the defendant. The defendant however admitted that he had certain transactions with the plaintiff long ago when he had put his thumb-marks on the plaintiff's account books and suggested that those thumb-marks had been utilized for the purpose of fabricating the Exs. 1 and 2. Both the plaintiff and the defendant adduced evidence at the trial, one of the witnesses examined by the plaintiff being a finger print expert who proved that the thumb-impression both on Ex. 1 and Ex. 2 were those of the defendant. The learned Munsif however dismissed the suit as he came to the conclusion that the hand-note as well as the hisab were not genuine and the plaintiff's case was false. The plaintiff thereupon appealed to the District Judge of Saran who dismissed the appeal and affirmed the decision of the learned Munsif. The learned District Judge came to the conclusion that the plaintiff “had failed to call any reliable evidence” in support of his claim and “in the circumstances it must be held that he had failed to prove his case.”
2. Now, Mr. Nirsu Narayan Sinha who appears on behalf of the appellant contends that the judgment and the decree of the lower appellate Court are not in accordance with the law because the learned District Judge misplaced the onus of proof upon the plaintiff. His argument is that in view of the fact that it had been proved by the plaintiff that both Exs. 1 and 2 bore the thumb-impression of the defendant, it was the duty of the latter to prove that the thumb-impressions were given on blank pieces of paper and not on the hand-note and fard-hisab as alleged by the plaintiff. This question appears to have been raised before the learned District Judge also but the learned Judge decided it against the appellant relying upon the decisions in Pirbhu Dayal v. Tularam (1) and Hoe Moh v. I.M Seedat (2). In Parbhu Dayal v. Tularam it was held by a Division Bench of the Allahabad High Court that an admission by a defendant regarding the putting of a signature or a thumb-mark on a document while he maintains that the paper when he signed it was blank is not such an admission of the execution of the document as to thrust the burden of proving his case upon him and it was for the plaintiff in such a case to prove primarily the due execution of the document relied upon by him. Similarly in Hoe Moh v. I.M Seedat where the defendant to an action based on a promissory note for Rs. 1,300-0-0 had admitted his signature on the paper but stated that he had signed a blank note with only the figure of Rs. 300-0-0 written on the top of the paper, a Division Bench of the Rangoon High Court dealt with the question of onus of proof as follows:
“Nor can we see that the admission of the defendant that the signature did appear on the document was sufficient to alter the initial burden of proof. The admission by the defendant did not establish the plaintiff's claim and if there had been nothing on the pleadings besides the plaint and the defendant's denial, the suit must have failed. It is quite true that the fact that the defendant's signature is on the note is of great evidentiary value and in many cases of this nature it might be sufficient corroboration of evidence given by the plaintiff himself to establish the plaintiff's case. That would depend on the circumstances of the particular case. But the defendant did not and never has admitted the material propositions of fact which would give the plaintiff a right to sue and the burden of proving the loan in our opinion rested upon the plaintiff.”
3. Now, Mr. Nirsu Narayan Sinha tries to explain away these two cases on the ground that a distinction should be drawn between those cases where the defendant admits his signature or thumb-impression on the document sued upon but tries to explain it by saying that he had given it on a blank piece of paper and those cases where the plaintiff does not rely merely upon the admission of the defendant but proves by evidence that the thumb-impression on the document sued upon is the thumb-impression of the defendant. It is said that in the former case the admission is to be taken as a whole and so the plaintiff cannot take advantage of that part of the admission which relates to the identity of the thumb-impression only, ignoring the other part where the defendant tries to explain how his thumb impression had been obtained on a blank piece of paper. As to the second class of cases it is contended that as soon as the thumb-impression on the document sued upon is proved by the plaintiff to be identical with the thumb-impression of the defendant, the Courts are bound under Section 114 of the Evidence Act, to raise a presumption that the document must have been duly executed by the plaintiff. In my opinion, however no distinction can be drawn in principle between the two classes of cases referred to by Mr. Sinha, because when a certain fact is admitted, the admission takes the place of proof and further proof is unnecessary. What we have to keep in view is that the plaintiff has to prove the due execution of the document and strictly speaking such execution cannot be proved merely by either the proof or by the admission of the fact that the particular thumb-impression on the document sued upon is the thumb-impression of the defendant. As was pointed out in the case of Sheikh Ebadut Ali v. Muhammad Fareed (3):
“execution consists in signing a document read out and understood and does not consist of merely signing a name upon a blank sheet of paper. To be executed a document must be in existence. Where there is no document in existence there cannot be execution. So, where the executant clearly says that he signed a blank paper the statement is a denial and not an admission of execution.”
4. It follows therefore that where the law places the onus on the plaintiff to prove that a document is duly executed, the onus cannot be discharged by merely proving the identity of the thumb-impression, but it must be further proved that the thumb-impression was given on the document after it had been written out and completed. There is no doubt that as was pointed out in Hoe Moh's case the fact that the defendant's thumb-impression appears on the paper is a strong piece of evidence in favour of the plaintiff and in the majority of cases very slight evidence would be necessary to prove that the thumb-impression was given on the document after it had been written out and completed. But the fact remains that if the evidence offered by the plaintiff to prove that the document was duly executed, or in other words, that the thumb-impression was given on the document after it had been written out and completed is found to be unreliable, he cannot be deemed to have discharged the onus properly and no onus is necessarily thrown on the defendant merely by reason of the fact that the defendant asserts that the thumb-impression was given on a blank piece of paper. The learned advocate for the appellant says that a presumption should invariably be drawn in such cases in favour of the plaintiff under Section 114 of the Evidence Act. I am however not disposed to agree with this contention. In the first place, I am not quite sure whether the presumption which Mr. Sinha wants us to draw in this case can be placed on a par with such presumptions as have been referred to in the various illustrations appended to Section 114 of the Evidence Act, and which indicate the kind of presumptions which are to be generally raised under that section. The presumptions referred to in the various illustrations are based on long experience and have been drawn so often by Judges in England as well as in this country that many of them have come to be regarded almost as rules of law. The same however cannot be said with regard to the presumption which we are asked to draw in this case considering that it is not too uncommon in this country for ignorant people to put their thumb-impression on blank pieces of paper. Assuming however that such a presumption as we are asked to raise by Mr. Sinha, can be raised under Section 114 of the Evidence Act, we must remember that S. 114 is a permissive and not a mandatory section and the Court may, having regard to the circumstances of a particular case, refuse to raise a presumption in that case under that section, although in other cases such a presumption may be properly raised. I do not think that in this particular case the circumstances were such that the Courts below were bound to raise a presumption in favour of the plaintiff. The question raised by Mr. Nirsu Narayan Sinha appears to me however to be rather academic, because the learned District Judge has said in his judgment that assuming that a presumption of fact can be raised in favour of the plaintiff
“it loses much of its weight when considered is the light of the attendant circumstances.”
5. It is well settled that although a certain presumption may arise in favour of the plaintiff, yet it may be rebutted at the same time by circumstances brought into light in the plaintiff's own evidence by means of cross-examination or other wise and independently of the evidence adduced by the defendant. Reading the judgment of the learned District Judge as a whole I am satisfied that when he says that
“presumption of fact, if any, loses much of its weight when considered in the light of the attendant circumstances,”
6. He means that the presumption has been amply rebutted by the circumstances referred to by him in his judgment which have been brought into light in the evidence adduced on behalf of the plaintiff. I may say in passing that on the question of presumptions Mr. Nirsu Narayan Sinha relied upon the decision of a Division Bench of the Allahabad High Court in the case of Sitaram v. Nanku (4). The facts of that case however appear to me to be distinguishable from the facts of the present case. In that case the Sub-ordinate Court appears to have come to the finding that
“it was somehow or other the thumb-impression of Deo Saran had been fraudulently obtained upon the document and the defendant had failed to show that it was Deo Saran's thumb-impression voluntarily impressed on the document.”
7. Referring to this finding Ashworth, J., said:,
“In order to give any meaning to this decision we have to suppose that the Sub-ordinate Judge conceived the possibility either of a die having been made from some other thumb-impression of Deo Saran and a forged impression by means of a die impressed on the document in question or that Deo Saran's thumb-impression had been obtained when he was asleep or drunk.”
8. The learned Judge then observed as follows:
“The presumption which the lower appellate Court failed to make in this case was a presumption that when a signature on a document is proved by a certain person it is for that person to prove that it was affixed by him otherwise than voluntarily.”
9. So the presumption that was sought to be drawn in that case was not that the document had been duly executed, but that the thumb-impression had been voluntarily put upon the document and not given involuntarily as suggested in the passage which I have quoted above.
10. In my opinion there is no error of law in the judgment of the learned District Judge and whatever view we might have held if it was permissible for us to go into the facts of the case, I do not think that we can interfere with that judgment in second appeal. I would accordingly dismiss the appeal with costs.
Scroope, J.:— I agree.
S.N/R.K
11. Appeal dismissed.