[Walsh, A.C.J:— The Court is of opinion that under the terms of the reference and the wording of the question formulated it is not open to you to argue that point. You must treat the document as one purporting to be executed by Lotu Rai.]
If it be taken that the principal whose name is put down there is the person who purports to execute the document, then there is no further argument and the presumption sought by the appellant must be made.
Walsh, A.C.J:— This is a question of law which arose in a Letters Patent Appeal which came before my brother Sulaiman and myself. Owing to certain decisions, to which it will be necessary to refer in a moment, the result of the decision by way of appeal from the judgment of the learned Judge of this Court was that the following question was referred to this Bench:—
“Whether the presumption permitted by section 90 of the Evidence Act, in the case of a document purporting to be 30 years old, that it was duly executed by the party by whom it purports to be executed, includes the presumption that when the signature of the executant purports to have been made by the pen of the scribe, the latter was duly authorized to sign for him.”
It should be observed that question is carefully conclined to the ambit or extent of the presumption of due execution which is permitted by section 90. It does not purport to open the door to a discussion whether in the particular case the document purported to have been executed by the executant or party, through or by the pen of the scribe. That question, therefore, is not before us. It is assumed for the purpose of the general question of interpretation. For my own part, I merely wish to say that it seems to be a question which must depend upon the circumstances of each case as they appear, either from the document, or from matters outside, and in this case it is a matter which still remains to be decided by the Bench which will finally dispose of the appeal.
The question, therefore, is a simple one, and deals only with a document which purports to be executed by the party or executant, not by the hand of the executant himself, but by the pen of the scribe. There must have been thousands of such cases occurring for generations in India, and there must be a large number, which from time to time come into the courts, where the document is more than 30 years old. In our view the expression “duly executed” must include all the facts which would be necessary in order to establish due execution before a court by positive evidence if the obligation of producing positive evidence were not dispensed with by the presumption. In other words, as Mr. Justice Neave put it in argument if this document were ten years old, it would, be necessary to prove that the scribe who purports to have executed it with the authority of the executant had such authority in fact. If that fact may not be presumed in the presumption of due execution which is permitted by section 90, that portion of the section would become a dead letter. We, therefore, hold that, the question must be answered in the affirmative.
The necessity for referring the matter to a larger Bench arose owing to certain authorities which were cited to us, and which appeared to us to place obstacles in the way of our coining to the decision which this Bench now arrives at unanimously. It is not necessary to go through them at length. The decision in the case of Ubilack Rai v. Dallial Rai may clearly be distinguished inasmuch as there the agent who signed purported to sign, not as a physical act carried out under the express authority and supervision of the executant, but rather to execute the document himself, authorized for that purpose by another document in the nature of a power of attorney, which gave him general authority to do other things as well as execution. We express no opinion about that decision. The question has arisen in England in the case of Airey v. Stapleton , which was cited to us in argument, but the point there is clearly distinguishable from this point, because the document purported to be executed not by the executant but by an agent having authority under a power of attorney, and it may well be that, even although it is of sufficient age, the authority under the power of attorney must be proved by independent proof of the document constituting such authority.
It is, however, difficult to decide this question in the affirmative without coming to the conclusion that the decision in the case of Sheo Nandan Ahir v. Ram Lagan Singh was wrong. In one sense, but only in a pedantic sense, it may be distinguished from the question submitted to us, inasmuch as the view there taken was founded upon a statement that the document did not purport to be executed by the mortgagors at all, a question which Dr. Agarwala would have liked to have argued before us to day. But that statement in the judgment is inconsistent with a statement in the same judgment which precedes it, namely, that the names of the executants purported to have been written upon the document by the hand of Gajadhar Das, the scribe. That being so, repeating what I have said at the beginning of this judgment, I should hold that the document purported to have been executed by the mortgagor by the pen of the scribe, and if that is a correct finding of fact, then the decision was wrong, and the presumption under; section 90 ought to have been allowed.
It would appear also that it would be difficult, if we answer this question in the affirmative, not to disagree with the view taken in the case of Gokul Singh v. Saheb Singh . There the question was of attestation, but the attestation was clearly placed upon the document by an agent employed for that purpose. In our view, if the document come within the section and is 30 years old, the presumption of due attestation includes the authority of any person who purports to have attested the document as agent for a person who purports to be the real witness attesting it.
In conclusion, it seems superfluous to point out that it is only a presumption. Every presumption is rebuttable. The court is not even bound to make it. It is another question if there are circumstances which justify it in rejecting it. But if it is unable to give any reason for not making it, and holds itself bound to make it, then it includes all the facts necessary to prove due execution, and, therefore, the authority of the scribe.
Sulaiman, J.:— If this reference is confined to the only question whether, when a document does purport to have been executed by a party thereto, the presumption under section 90 as to its due execution includes the presumption that the person making the signature of the party was duly authorized to sign for him, then there can be only one answer to the question. If the document does purport to have been executed by him, the presumption certainly is that it was duty executed, and due execution includes the authority of the agent to make the signature for the party.
The cases which seem to lay down a contrary rule proceed on the assumption that where a document merely bears the signature of the party by, the pen of another, it does not purport to show that other person had authority to make the signature for the party. In a case where a party does not sign and seal a document, or make a mark thereon, but asks another to sign it for him, due execution by him implies two elements, namely, the making of the signature by that other person, and the authority given by the party to him to make that signature. The question whether a document which merely shows the signature of a party, by another person does purport to have been “executed” by the other party, i.e does purport to contains both the necessary elements, may require consideration. That however, on the terms of the reference, does not arise in this case. I, therefore, agree that the answer to the question should be in the affirmative.
Mukerji, J.:— After what has fallen from the learned Chief Justice and Mr. Justice Sulaiman, I have hardly anything to say, because I am entirely at one with them. In the case of Lokman Das v. Ganga Sahai , the Court really refused to assume that the document had been executed by any party at all. At the place where ordinarily the signature of the party professing to execute the document is to be found, there was a mere line, and there was no note to show that line had been drawn by the person whose name appeared at the head of the document. Whatever, therefore, was said in that case was in the nature of obiter dicta, and cannot be considered to embody the considered opinion of the eminent Judges who decided that case.
I agree in answering the question in the affirmative.
Dalal, J.:— I agree. The point is that when a document purports to have been executed by 4, and the signature of A is by the hand of B, can it be assumed that B had A's authority to put down the signature? The answer to this question must be in the affirmative. In the rulings cited by the learned Chief Justice, there appears to be a confusion between two distinct matters. The question was not put distinctly whether the document purported to have been executed by A. The two questions, whether the document purports to be executed by A and whether B had authority to sing it were jointly considered; hence the confusion arose. In this reference the two-matters are kept distinct, and the answer is that by due execution is meant that B had A's authority to put down the signature.
Neave, J.:— I agree. I have nothing to add to the judgments which have been delivered by the learned Chief Justice and Mr. Justice Dalal.
Reference answered in the affirmative.