CHEYT RAM ‘U. CIIOWDHREE NOWBUT RAM [1858] YII MOOaE IND. UP., %i?

[Z07] CHEYT ~ A M , - ~ ~ e ~ ~ ~ ~ ; ~ O W D ~ R E ~ NOWBUT ~ ~ , - ~ e ~ ~ o ~ e ~ ~ *

Xov. 30, and Dec. 1, 1858).

OB ea^ from $he Sudder ~e~~~~~ A ~ ~ ~ ~ u ~ , ~ ~ ~ - W e s ~ e ~ Provimes, Agra.

In a question involving the genuineness or forgery of an i n ~ r u m e n t sued upon,

which the Courts in India had opportunity of personally inspecting, and held

genuine, it is necessary that the evidence impeaching the document, be clear

and strong to justify the appellate Court reversing the decree appealed from.

Circumstaxices in which the Judicial Committee upheld a Bond impeached as

a forgery, and reversed the concurrent decrees of the Zillah and Sudder

Courts in India.

Costs in India and upon appeal allowed to the Appellant, upon a reversal of the

decree of the Court below.

This was an appeal from a decree of the Sudder Dewanny Adawlut of the North-

Western Provinces, affirming the decree of the Zillah Court of Bareilly, which decided

against the authentic~ty of a Bond, the subject of the suit, in which Radhakis~~en,

since deceased, the father of the Appellant, was the Plaintiff, and the Respondent,

the party who had executed the Bond, was the Defendant.

[ZerrJ The pleadi~gs and evidence are so fully stated in their Lords~~~ps’ judg-

ment as to render any statement here unnecessary, beyond an outline of the principal

facts in issue.

The Courts in India, in their decrees, proceeded entirely upon the suspicious

circumstances of the case, and decided againat the validity of the bond, chiefly

on the ground that the appearance of the impression of the seal of the Respondent

affixed thereto was unsatisfactory ; and on that ground charged Radhakishen with

the forgery of the Bond, against the testirnony of the attesting witnesses, who

in their evidence deposed that the Bond was executed by the Res~ondent in their

presence. Subsequently to the decree pf the Sudder Dewanny Adawlut, the

Magistrate of the District of Bareilly, to whom the investigation of the criminal

charge against Radhakish~n was formally made over by that Court, held that i t was

sat isfac~ri ly proved by the evidence before him that Radhakishen was innocent

of the charge, and that the seal used was, in fact, the genuine seal of the Respondent;

and he was further of opinion, that the impression of the seal on the Bond had been

distinct and perfect when the Bond was filed by Radhakishen in the suit in the

Civil Court, but had been tampered with (at the instance, as the Magistrate suspected,

of the Respondent, through his agents) in the Civil Court, after the document had

been filed, which the Magistrate thought accounted for the suspicious appearance

that it presented when examined a t the hearing of the original suit. A review

of the judgment of the Sudder Dewanny Adawlut was applied for by Badhakishen,

the appl~cat~on being grounded upon the ~agis t ra te’s judgment. The appl~cation

was, however, refused, and this appeal was instituted by the present Appel-

lant, Cheyt Ram, the son of Radha~ishen, who had died pending the proceedings, to

reverse the two decrees of the Zillah and Sudder Dewanny Courts, which, the

Appellant submitted, mere, independently of the finding and judgment of the

~ a g i s t r a t e , contrary to the weight of t ~ t i m o n y given in the original suit, which

established the authenticity of the Bond in question, and the due execution thereof

by the ~espondent, and the amount which formed the consideration of the Bond

proved to be due to ~ a d h a ~ ~ s h e n from the Respondent. The Respondent insisted,

that, the question a t issue being one of fact, and the Courts in India having in-

spected the document, and having had the opportunity of observing the demeanour

of the witnesses while under examination, were most competent to judge of the

credibility of the evidence: and he further insisted that the onus ~ o ~ ~ n ~ ~ was in

the appellant'^ father to prove the consideration for the Bond and itp, genuineness,

* Present : Members of the Judicial C o ~ i t ~ e , - ~ h e Right Hon. Lord Kings-

down, the Right Hon. Dr. Lushin~on, the Right Hon. The Lord Justice Knight

Bruce, the Right Hon. Sir Edward Ryan. Assessor,-The Right Hon. Sir Lawrence

Peel.

281

both of which points, the Respondent contended, he had failed to do, and that more-

over the Bond had not been registered.

Mr. Leith for the Appel la~t ; and Mr. F o r s ~ h , Q.C., and Nr. Joyce, for the

Respondent,

The case of ~ w a ~ ~ ~ Bass v. Baboo Jankee Doss (6 Moore’s Ind. App. Cases, e$),

was cited by the Appellant, as authority that the items in Radhak~shen’s banking

books were evidence to est&bli~h the c 5 n ~ ~ d e ~ a t i 5 ~ of the Bond; and Cir. Ord.

No. 178, 29th July, 1836, to show the possibility of the Bond having been unfairly

treated while in the custody of the Court. On the part of the Rerpon-[ILlO]-dent,

~~~s~ v. Cooper (11 Nee. and Wels. 778. S.C. in error, 13 Wee. and Wels. 343),

Crouck v. UicBert, (6 L.J.N.S. Chan. 153), were relied upon as a u t ~ ~ o r i t y for the

dismissal of the suit, the Bond, as it. was alleged, having been tampered with while

in ~adhakishen’r custody, which fact prevented the A p p e ~ ~ n t from recovering.

The appeal stood over for con side ratio^.

Their Lordships’ judgment was now ddivered by

The Right Eon. Lord K i n ~ d o ~ (Dec.18, 1858).-The A p ~ e l ~ a ~ t , in this case,

has undertake^^ a task of no ordinary difficulty, since be asks for a reversal of the

decision of two Couria in India, upon a mere quest~on of fact, that fact being the

genu~neness or forgery of an instrument which is the f o u ~ d a t i o ~ f the action in

which the appeal is brought.

The Judges in the Court below have formed their opinions mainly on an inspec-

tion of the document, which we have had no opportunity of seeing. The case must

be very strong, to justify such an unusual exercise of authority, and the question

is, whether the Appellant has establ~shed such a case.

~adhakishen, the original Appel~ant, and whom we shall call the AppeIlaiit in

the observations we are about to make, brought an action against the RespoI~dent

on a Bond for Rs. 15,000. The name of the Respondent appeared to the Bond, im-

pressed by the stamp of a seal. The Ziltah Court, on examining the s i ~ n a t ~ r e , and

comparing it with other ~mpressions of the seal of the Respondent acknowledged to

be genuine, decided that the impression on the Bond was a forgery, and disniissed

the suit. The Sudder Court, E2111 on appeal, con~rmed this decision, and, in eBect,

ordered the Appe~lant o be prosecuted for forgery. He was so prosecuted, and was

acquitted. 13e then applied €or a review of the judgment against him in the civil

suit, which was refused, and he has now appealed to Her Majesty in Council.

The Appellant and Respondent were both residents a t Bareilly, the former being

apparently a Banker and money-lender, and the latter a landowner. It ie admitted

on all hands, that pecuniary t~ansactions had taken place between these parties ;

that moneys were adyanced by the Appellant to the Respondent, and securities

given by the Respo~~dent to the Appellant. In particular, a mortgage by the Re-

s p o ~ ~ d e r ~ t to the ApgelIant, under which the latter was in possession of a village

of the ~espondent, and a Bond for Rs. 4000, by the Respondent to the A ~ p e l ~ a n t ,

are specifically mentioned.

But in a ~ d ~ t ~ o n to these transactions~ the Appell&nt alleges that there were

many other advances made by him to the Respondent upon Bonds and notes of

hand, in respect of which, in the month of August, 1851, a large sum was due for

principal and interest; that in the course of that month the parties came to a

s e t t ~ e ~ e n t of accounts ; that. the Appe~~ant having consented to make an abatement

from the amount due, the balance was settled a t Rs. 15,000; and on the 30th of

August, 1851, a Bond was executed by the Respondent to the Appellant, to secure

the payment of that sum, with interest at one per cent. per month, in the month of

May then following.

The amount due upon the ~nstrument being unpaid, the Appellant, on the 30th

of September, 1852, filed his plaint in the Zillab Court of Barei~ly, c l a i ~ ~ n g E2127

the sum of Rs. 16,955 for principal and interest on the alleged Bond.

On the 2nd of ~c tober , 1852, the ~ e s p o ~ d e n t undertook to file a defence to the

su i t witbin two weks. This, however, he neglected to do; and on the 2nd of

December, 1852, an Order was made by the Court that the Appellant should procmd

to prove his case e$-parte.

He a c c o r d ~ n ~ ~ ~ , on the 3rd of December, 1852, o b t a ~ ~ ~ an order to s u m ~ o n

288

CHEVT RAM d. ~~~~~H~~~ ~ U ~ 3 U ~ RAM [l 8583 VXI HOORE INR. *P., %3

his witnesses, and brought into Court the Bond in question, which was ordered by

the Court, on that day, to be kept with the misl or record of the proceedings.

The production of this Bond, and its deposit in Court a t this early stage of the

proceed~ngs, when it was open to the inspection of the Respondent and his agents,

appear to be of great im~ortance in this case.

The Bond p u r ~ o r ~ e d to have been given after a settlement of accounts, to be

tamped with the seal of the Respo~kdeI~t, and to be witnessed by ~ o o r ~ a p e r s h a ~ , the

Mootsuddee, or man of business, of the Respondent, who is also described as the

writer of it, and it was dated only thirteen months before the suit was instituted.

The ~ s p o n d e n t was resident on We spot where the Bond was executed, and where

the suit was brought, and both be and his agent must have k ~ o w n with a ~ s o l ~ t e

certa~nty whether the one had written and the other had sealed such an ~ n s t r u ~ n e n ~ ~

or whether the document was a mere forgery.

It is

difficult to suppose that if he had never executed any sucb i i istrume~t he should not

instantly have protested against the forgery; but he took no step whatever to defend

the suit on 12131 this round, ox any other, till the case was ordered to proceed e$-

pavte. He then, on the 9th of December, 1852, appl~ed to be admitted to defend

the suit, not on the groui~d that the Bond was a for~ery , but on the a ~ ~ e g a t ~ o n “ that

he has several object~ons to the ~ 1 a ~ n t i ~ ’ s c ~ a ~ ~ , which ~ n v o l ~ e s a cons~derable sum

of money.”

He was let in to defend ; and on the 6th of January, 1853, he put in his answer.

In this answer he states that the Plaintiff’s claim i s based on a fict,~tious Bond, and

he assigns various reasons to show that the fact of his having given such a Bond is

improbable ; but he nowhere d~st~K~ctly sa s, ‘‘ I never executed any such Bond, The

seal is not my seal; i t differs from the genuine i~r~press~on of my seal: the writing

is not the writing of my agent.” Amo~gst other c~r~umstances of probability on

ivhich he insist3 against the Appellant, he urges that it is very tin like^^ that the

exact balance of accounts should result in a sum of Its. 15,000, without any f r ~ c t i o n a ~

sum, and that n, Bond for so large a sum should not haye been re~istered, more

especially as the Bond for Rs. 4000 was registered.

With referen%

to the two object~ons referred to, he states that, as to the amount of the Bond, the

sum really found due on the settlement of accounts, for p r i n c ~ p a ~ and interest, was

Rs. 1’7,319. l, 3.; but that the Appe~~ant, on the ~n~portunate entreat~es of the Re-

spon~ent, consented to give up the surplus beyond Rs. 15,000, and to take a No11d

for that amount; and he says, that the accounts and documents, showing the exact

balance which were cancelled on the execution of the Bond, still exist to @34]

remove the ~espondent’s object~on. ~~t~ respect to the want of registration he

states, that he was in the habit of ad~anciug thousands of rupees to the ~espondent

upon unreg~~tered documents.

The rejoinder of the ~espondent was filed on the 23rd of arch, 1853, in which,

amongst other t h in~s , he alleges, that if the former documents had ever any exist.

ence and were cance~led, they ought to have been given up to him, the Reaponden$,

on the exeeut~on of the Bond, and that ‘‘ when the former document8 are produce&,

the i ~ p o s t u r e of the claim will be fully exposed.”

In this state of the record the p a ~ i e s went into evidence.

The evidence of the Appe~~ant in the suit may be convenient81y c ~ ~ s ~ d e r e d ulx er

three heads :-First, the tran8ac~,ions ~ e a d ~ n ~ u p to the Bond. Second, the e~ecution

of the Bond. Third, the subse~uent recogn~tion of it by the Respondent.

The clerk of the Appellant, named’ Laljeemul, gives the following account

under the first head:-“The facts are these: there are mutual dealings betwixt

~ ~ o w d h r e e Nowbut Ram and LaUa ~ ~ d h a ~ i s ~ e ~ . ~ ~ d h a k i s h ~ d ~ ~ d e d p a y ~ e n ~

from Ch#wdhree N ~ w ~ ~ t Ran. Chowdhree ~ o w b u t Ram sent to ~ a d h a k i s ~ e n his

~ ~ t ~ ~ d d ~ ~ P e s i ~ ~ scribe) o o r ~ a p e r s h a d , to comp~le aceounts, and find the

balance due by him, ~oorgapershad, ~ o o t ~ u d ~ e e , th n came to ~adhakishen and

computed accounts, on which a balance of Rs. 17,389. 1. 3. appeared against NowbuL

Ram. ~ ~ r ~ a p e r s h a d returned to Chowdhree Nowbut Ram with the list of accounts,

leaving one copy of it wit~h ~ a d h a k ~ s h e n , and telling him to have the accounts

examined, and that he would himself do the [2l5] sanie. Radhakishe~~ then gave me

The ~espondent had notice of this claim on the 2nd of ~ctober , 1882.

On the 12th of ~ e b ~ , u a r ~ , 1853, the Appellant filed hia repl icat~o~~.

F.C. n x r . 289 10

VII MOORE IND. APP., 216 CHEYT RAM v. CHOWDHREE NOWBCT RAM [1858]

the list of accounts, and told me to go to the firm of Lalla Muthar Doss, and to have

the accounts examined by Lalla Doorgapershad, his agent. I accordingly went to

Doorgapershad, agent, with the account, and showed it to him, and told him to see

i f there was any discrepancy in it. Doorgapershad and Kishen Chund, the principal

agent of the firm, looked at the account, and said there was no discreparlcy in it.

I brought the account back to Lalla Radhakishen, and told hinl it wa8 corect. 0 1 1

the same day, Doorgapershad, Mootsuddee, accompanied by Sheonarain, the brother-

in-law (sister’s husband) of Chowdhree Nowbut Ram, came again to Lalla Radha-

kishen, and said that Chowdhree Nowbut Ram had seen the account and understood

it, but he had desired that some reduction should be made in the interest. On this

Lalla Radhakishen said, ‘ Pay me my money, and I shall make any reduction you

will propose in the interest.’ On this Sheonarain and Doorgapershad, Mootsuddee,

said, ‘ The money is ready, and we promise to pay in the month of Jeyt.’ Radha-

kishen then asked what reduction he should make ; and Doorgapershad, Mootsuddee,

and Sheonarain, the brother-in-law of Nowbut Ram, said, ‘ You may have a Bond

for Rs. 15,000, and relinquish the balance in our favour.’ Radhakishen agreed, and

said, ‘ Very well, pay Rs. 15,000, in Jeyt.’ Then they returned to the Chowdhree,

and must have told him everything.” He then says, on cross-examination, that of

the balance, actually due, 10,200 and odd rupees were for principal, and the re-

mainder for interest; that interest was charged at 1 per cent. per month, and that

there were six Bonds and notes of hand.

[216] This witness refers to an examination of these accounts by the Gomashta,

or head clerk, a t Bareilly, of the firm of Muthra Doss, one of the largest banking

firms in India. This gentleman appear8 to be above all suspicion ; he is examined

on behalf of the Appellant, and he entirely confirms the account of Laljeemul. He

says:-“It is something less than two years when Laljeemul, Mootsuddee of Lalla

Radhakishen, brought me Chowdhree Nowbut Ram’s account in order to have the

computation of interest examined by me, and I and Kishen Chund accordingly

examined it; subsequently, eight or ten days after, I heard that Lalla Radhakishen

had relinquished 2000 and odd rupees, and that he caused Chowdhree Nowbut Rani

to execute a Bond for Rs. 15,000.”

He then says there were many previous dealings between the Appellant and Re-

spondent; that whenever Chowdhree Nowbut Ram wanted money, no one but the

Appellant supplied him with it. That dealings had been carried on from the time of

Chowdhree Bussunt Ram, who was the father of the Respondent.

The statement of these witnesses, as to the settlement which took place, and the

abatement which was made by the Appellant, is confirmed by the: evidence of

Ramsookh and of Gholam Hussun, who concur with Laljeemul in representing that

Sheonarain, the brother-in-law of the Respondent, was one of the persons at whose

instance the abatement was made.

That extensive dealings took place between the Appellant and Respondent, is

further proved by the evidence of Seetaram, a Tehseldar, or who had filled that

office, which we understood is one of respectability, who says that “ dealings existed

from the time of the Respondent’s father, and that whenever [21a they wanted

money they borrowed it from the Appellant, and that very often money was drawn

m notes of hand, without the execution of a Bond.”

In addition to this evidence the Appellant produced the Bonds and notes upon

which the balance was alleged to have been found due, and the account said to have

been made out, showing the balance.

The Respondent had alleged that when these documents were produced, the im-

posture, as he calls it, would appear. They are produced, and no attempt whatever

is made to discredit them.

It is difficult to imagine proof more distinct and positive upon the first point :

the transactions which led up to the Bond. But the Appellant’s evidence distinctly

names two persons, connections of the Respondent; one is agent, the other his

brother-in-law, by whose intervention this arrangement is alleged to have been made.

The Respondent does not examine either of these witnesses, or offer in any other

manner whatever to contradict the testimony of the Appellant’s witnesses.

That the balance. was ascertained : that the abatement was made; that there

290

CHEPT RAM 21. ~ ~ O ~ ~ H ~ ~ ~ ~ ~ ~ 3 U ~ RAX [ 18 581 VI1 XOOBE IND. APE’., !A18

was an agreeinent to give a Bond for Rs. 15,000, are facts which must be considered

as conclusi~ely established.

L a l j ~ m u ~ ~ after the passage which

we have read from his evidence, proceeds thus:-~‘Again the nex? day, four

ghurries after sunrise (two ghurries and a half make one hour), Doorgapershad,

~ ~ ~ o t s u d d e e , came to ~adhakishen, and said, ‘ Send your witnesses that the Bond may

be recorded.’ Lalla Radhakishen then sent myself (Laljeemul), Chohyloll, Ramsookh,

Sheikh Ameeroollah, and Gholam [218] Nussun, with Doorgapershad, and told us,

‘If the Chowdhree should record a Bond, and acknowledge it before you, you

should witness it.’ A11 five of us ~ccordingly went in the dewankhanah (a hall for

receiving visitors) of Chowdhree Nowbut Ram, accompanied by Doorgapershad.

The ~howdhree was seated there. Door~apershad told him that Lalla R a d ~ a k ~ s h e n

had sent us to witness the Bond. The Chowdhree told Door~apershad to bring out

paper and to record the Bond. On this, Doorgapershad brought out paper, and

e~i~rossed a Bond thereon. He gave the Bond to the ~ h o w d ~ r e e , who saw it; and

having sent for his box, impressed it with his seal, and told us to witness it. Door-

gapershad, ~ootsuddee (the writer ), and Ramsookh, C’hoteyloll, myself, Sheikh

Ameeroo~a~ and Gholam HUSSUR, a c ~ r d i n g ~ y w~tnessed the Bond. The Bond was

reGorded in our presence.“

His account is confirmed by ~ h o t e y ~ o l ~ , a friend of the Regpondent, another

attesting witness; by Ramsookh, also an attesting witness (though his name i s

written by Doorgapershad, the agent of the Respondent, as Ram Sing); and by

Gholam Hussun, who was present, and saw the transaction, though there appears

to be some error as to his being an attest~ng witness ; at least, his name is not found

in the inst.rument as printed in the record of the proceedings of the Court befow.

These witnesses are cross-examined, but their evidence is not in the least shaken,

and, if it be believed, it proves most distinctly that the instrument in question was

written by Doorgapershad, the agent of the Respondent, who also attested it, and

that the ~espondent d e ~ ~ b e r a t e ~ ~ s t a m p e ~ his seal upon it, in order to give it effect.

[219] But what makes this evidence conclusive i s this; that the Respondent

having the means of disproving the story, if untrue, by producing his own agent to

say that he did not write and did not witness the Bond, does not venture to call

him, or any other witness, to the point. He examines thirteen witnesses upon matters

totally irrelevant to the real issue, and does not examine one who tends even to

throw a doubt upon one single material fact of the Appellant’s case.

So far from denying this Bond, the Re-

spondent, after i t s execution, endeavoured to obtain time for payment of it, which

brings us to the third head of evideace; the r e c o ~ ~ ~ t i o n . Doorgapershad, Moot-

suddee, i s asked : “ Did any one, ever coming before you, make any acknowled~n~ent ?”

He answers: “ I n the last month of Katuk I went to Chowdhree Nowlout Ram, to

write a note on account of Lalla Kalka Doss, resident of P ~ ~ i b e e t , who had mort-

gaged the village of Rooppoor. Chowdhree Nowbut Rssm told me to give Lalla

R a d ~ a k i s ~ e n Rs. 4000, for which the latter had brought an action ; further saying,

‘ “here i s another suit, for Rs. l5,OOO. You may give Rs. 4000, and Lalla Radha-

kishen will take something less in the amount of cods ; you should haye t h i s matter

settled, and the suit for Rs. 15,000 you may have adjusted a~~i ,wards . ’ I said that

the matter as it then stood would cause disrepute, and that it should, therefore, be

settled. Again Chowdhree Nowbut Ram said, ‘ You should have the matter settled.’

I said, ‘ Tell me what to say, that I may go to him and settle ac~ording~y.’ Chowdhree

Nowbut Ram replied, ‘ that he would be [220] able to pay the money in five years,

and that if he were made to pay in a lump it would ruin him.’ I said, ‘ Your and

Lalla Radhakishen’s affairs are founded on mutual friendship. He is like your

patron, and will not ruin you ; but he will not aqree to the promise of payment in

such length of time, because, in six years’ time, interest on the sum of Rs. 15,000

will accrue to nearly Re. 15,000. Such promise of ~ a ~ e n t , without interest, he

will not agree to.’ Again the Chowdhree said, ‘ You may give Rs. 4000 on account

of the suit for that Bum. I shall send Sheonarain, and, as you also will be there,

you may have the matter settled ; and, if he will not come to terms, I will defezld the

suits.’ After this I came and told Lalla Radhakishen what the Chowdhree had said ;

and also that, as the transaction was like a family agair, he shouId settle it

291

Secondly, as to the execution of the Bond.

But the matter does not end here.

WI NOORE XND, APR.,

amicably; adding, ‘ It is difficult for him (the Chowdhree) to pay Rs. 15,000, at once.

I t is advisibfe to agree to i n ~ a l m e n t payment,’ ~adhakishen said, ‘ I have no

objection; but how can I agree to receive insta~ments without any one’s coming to

propose it’? Have in&alments ever bean agreed to without intareeta ’ ”

This attempt of the Respondent to obtain time for payment of the Bond is further

proved by Seetaram, the witness already mentioned, who, speaking of Sheodut Ram.

Jamadar, whom he describes a8 the Dewan of the Respondent and‘sole manager and

agent of his household, ssys :-“ Sheodut Ram, Jamadar, told me that ‘ Lalla Radha-

kishen had brought a a action for Rs. 15,000, against the C~owdhree; you should

persuade the tatter to fix an instalment of Rs, 3000, per annum for five years without

interest. You visit Lalla ~adhakishen frequently) and should, therefore, E2213 have

this matter settled.’ I and the Jamadar according^^ went to Radha~ishen and intro-

duced a negotiation relative to the payment by instalments. Lalla ~ a d h a ~ i s h e n

There was, therefore, clear, positive, consistent, u n c o n t r a d i c ~ testimony of the

agreement to give the Bond ; of its actual execution, and of its subsequent recogni-

tion; and, in the teeth of all this t ~ t i m o n y , upon what grounds have the Courts

below held it to be a forgery?

They compared the impression made by the seal on this instrument, with the

pressio ion made upon ot.her instruments by what is admitted to have been a genuine

seal of the Respondent, and they say that upon a very minute inspection, and measure-

ment by a pair of compasses, the letters, or some of the letters, of the Respondent’s

name appear on the Bond to differ someth~ng in their size from the signatures

admitted to be genuine. Whether this may have arisen from the mode in. which the

stamp was affixed on the different ~ n s t r u ~ n ~ , or from the greater or less quantity,

or the greater or less fluidity, of the ink used on such occasions, i t is i ~ m a t e r ~ a l to

inquire. The question is, is it or not proved, beypnd all shadow of doubt, that the

Res~ondent did affix some seal to this instrument for the purpose of giving i t effect?

The evidence on this point i s quite irresistible.

It never occurred

to &he Respondent, or his agents, to set u p such a defence when the Bond was de-

posited in December, 1852, nor, as far as alppears, t*ill July or August, 1853. The

Bond had been lying, in the interval, in the office of the Court; [222] and it is to

be collected from the Circular Order referred to in the argument, that it is not

difficult and not unusual for parties to procure access to, and to tamper with, docu-

ments so placed, and we cannot have the least doubt that such discrepancy as exists

between this seal and the others produced, if they were the impressions of the same

stamp, and if the difference is not to be accounted for by the accident^ circu~stances

to which we have adverted, has been occasioned by the fraudulent acts of the Respon-

dent’s agents while the Bond was in the custody of the Court,

When the direct evidence in favour of the instrument is 60 o v e ~ h e l ~ i n g , i t is

needless to rwort to confirmatory proof; i t mayt however, be observed, that i t is

shown that the stamp on the i n s t r u ~ e ~ ~ t had been sold, shortly before the date of the

Bond, to an agent of the Respondent for his use ; and if the Bond had been a forgery,

it is utterly inconceivable that of all persons in the world, the name of the Respon-

dent’s own confidential agent should have been selected for forgery, as the writer

of i t and one of the attesting witnesses.

Every circu~stance of suspicion which could be alleged against the A p p e ~ ~ a n t ’ ~

claim was brought forward, and urged with great force and ability by Mr. Forsyth,

but there really i s none of any value.

The only observations which a t first had some weight with their Lordships were

three-first, that the Bond was not r ~ i s t e r e d ; secondly, that the cancelled document8

were not delivered up ; and thirdly, that i t was strange that a suit should have been

~ n s t i t ~ i ~ e d (as it was) upon the later Bond for &S. 4000, instead of th0 two being

united in one [223] suit, or that which was first executed (the Bond for Rs. ~ 5 ~ ~ 0 0 ~

being first put in suit.

But as to the first point, we are in for^^ by Sir Lawrence Peel, that in India

two-thirds of the Wnds, which are payable a t short dates, as this was, are not regis-

tered : as to the second, that a Plaintiff is required to prove the consideration for his

Bond, and that the document5 relating to i t were) therefore, properly left in the

292

CHEYT RAM II. CBOWDEREE: NOWBUT RAM El858 J

ee to receive instalments for five years w i t~ou t interest.’ ”

It i s not till the case is on hearing that this objection is made.

RATCEY K, R. K. TOLA OODlAR ‘U. H. CHETTET [1859] VI1 ~ 0 0 ~ ~ INXJ. UP., 2%

possession of the Appellant : and as to the third, supposing the two Bonds could by

the practice be included in one suit, we think that the delay in bringing the second

sui t is su~cien t ly accounted for by the n ~ o t i a t i o n s which were carried on for pay-

ment of the amount of the Bond by instalments.

Upon the whole, we can entertain no doubt that there has been in this case an

entire miscarriage of justice in the Courts below ; and we cannot but express our deep

regret that the Appellmt should not only have had his suit dismissed, but have beeii

subjected to the indignity, vexation, and expense of a criminal prosecution, in a case

where the claim is established by testimony, leas liable to suspicion than we exrer

remember to have seen brought forward on an appeal from India, in a question of

disputed fact.

We must do to this gentleman, or to his representati~re’ such justice as is in our

power, by a d v i ~ i ~ ~ g Her ~ a j e s t y M reverse the decisions c o ~ p l ~ i n e d of, to establish the

Plaintiff’s demand in the suit., and to order payment of the amount of the Bond with

the interest due upon it by the Respondent, together with costs both in the Zillali

and in the Sudder Dewanny Courts, and the costs of this appeal.

[224] KATCHY KULLYANA RANGAPPBH KALACKA TOLA 00DIAl2,-

Appellamt; BALOOSAMY CHETTY,-Bespo12d‘elzf * [March 18, 18593.

0% appeal f rom the Sadder ~ e ~ a l z ~ A ~ ~ w l a ~ , Zadras.

Suit to recover the amount of principa1 and interest upon certain pecuniary

transa~tiuns set forth in an agreement, alleged to have been executed by the

Defendant’s father in favour of the PlaintifT, for moneys advanced by him,

and also upon the Defendant’s own promise after his father’s death to pay

the amount due from his father. Defence, first, that the agreement sued upon

was a forgery; and, secondly, a denial of the promise of payment. Upon

appeal (reversing the decree of the Sudder Dewanny Adawlut a t M ~ d ~ ~ s ~ ,

the Judicial Committee, without declaring the agreement to be a forgery,

dismissed the suit upon the ground of failure of proof to support the claim.

The Appellant allowed costs of the appeal here, as well as of the Courts in India.

The Appellant in this appeal was the Zemindar of Oodiarpollienz, in the Zillah of

‘~sichinopo~y. On the death of his father, the late Zernindar, in July, 1838, the Zernin-

dwy devolved on the Ap~eliant’s elder brother, Katchy Moottoo Vejaya rang appal^

Kalacka ToIa Oodiar, and on the death of the fatter, which occurred in January, 1837,

fell into the hands of his widow, Oppayee, a8 guardian of her son, Katchy Rang~ppah

Kalacka Tola O d i a r , then a minor. The Zemindary was subsequently taken under

thc management of the Court of Wards. During the period in which the Zeuiiiitlary

was under such management, the [226] CoRector, acting under the i n ~ t r u c ~ i ~ ~ I i ~ of

the Board of Revenue, issued a notice for creditors of the late Z e ~ ~ n d a r t~ come in

and prove their debts. Accordingly, on the 28th of December, IS37, the Respondent

presented to the Collector the following petition (afterwards described as Exbibit

6.) :-“ Katchy Rangappah Kalacka, Tola Oodiar, the late Zemindar of Oodiar-

polliem borrowed from my father Rs. 2000, under a Bond executed on a stamped

paper of Rs. 4 value, and on the 22nd Anee of Vyaya (4th July, 1826). Besides thiv

Bond for Rs. 2000 (described as Exhibit B.), there were others executed by the said

late Zemindar to my father for loans formerly obtained, and on the 22nd Poorattasee

of Vyaya, the said Zemindar granted a sunnud directing pagodas 250 to be paid to

my father out of the produce of Avtandavady (one of the said Zemindar’s istimrary

villages), in full of all demands under the said old Bonds. When the said sunnud

* Prment : Members of the Judicial C o ~ ~ t t e e , - ~ h e Right Hon. the Lord Justice

Knight Brucg the Right Hon. Sir Edward Ry-, the Right Hon. The Lord Justice

Turner, The Right Hon. Sir CressweIl Cfresswell. Assessor,-The Right Hon. s i r

Lawrence Peel.

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293;