Patna High Court
Tilakdhari Bhagat vs Jagat Rai And Ors. on 16 August, 1960
Equivalent citations: AIR1961PAT76, AIR 1961 PATNA 76
JUDGMENT Raj Kishore Prasad, J.
1. This appeal, by the plaintiff, Tilakdhari Bhagat, is from the concurrent decisions of the courts below, dismissing his suit for setting aside the compromise decree, exhibit B, on the ground of fraud.
2. The sole question for determination, in the present appeal, is whether the grievance of the appellant that the finding of the court of appeal below that the compromise, exhibit B, was signed by the present plaintiff, then defendant 2 to the previous suit, is really based on a mere comparison of the signature of the plaintiff by the court itself and has been largely and mainly influenced by its own opinion, and, as such, it is not a legal finding which is binding in second appeal, is correct.
3. In order to determine this question, it is necessary to state briefly the material facts of the case having bearing on this question.
4. On the 20th October, 1950, the present plaintiff and his brother, Dhora Bhagat, defendant 2, are alleged to have jointly executed a handnote for Rs. 401, in favour of defendant 1, in lieu of an unpaid price of a bullock, alleged to have been purchased by Dhora, defendant 2, from defendant 1, because, the case of defendant 1, was that they were members of a joint Mitakshara family.
5. It will appear from the order-sheet of the previous suit, exhibit 14, that defendant 1, as plaintiff, brought a Money suit of the 17th December 1951, Money suit 339 of 1.951 in the court of the Munsif of Gopalganj, on the basis of the aforesaid handnote against Dhora Bhagat and his brother, the present plaintiff. In that suit Dhora Bhagat was defendant 1, and the present plaintiff was defendant 2.
6. The plaint of Money suit 339 of 1951 was filed and admitted on the 17th December 1931, and summons was ordered to be issued against the defendants of that suit fixing the 15th February 1952 for settlement of issued. Before the date fixed in that suit, on the 28th January, 1952, a petition of compromise, exhibit B, alleged to have been entered into between the parties to that suit on the 25th January 1952 was filed in court, on which the court ordered it to be put up on the date fixed. On the 16th February, 1952, the compromise petition was put up and the court ordered that the suit be decreed in terms of the compromise and that the compromise be recorded. On the 19th February, 1952, a decree was drawn up in terms of the compromise, and this is the compromise which was challenged in the present suit ay forged and fabricated.
7. The trial Judge, who decided the present suit, dismissed the plaintiff's suit, because he found that the handnote in question was not forged and that the impugned compromise was properly entered into by the plaintiff in the previous money suit.
8. The plaintiff, thereafter, took the matter in appeal to the court of appeal below. The learned Additional Subordinate Judge, who heard and decided the appeal, affirmed the judgment of the first court, but on many points he disagreed with the findings of the first court and recorded his own findings to the contrary.
9. The learned Judge, of the court of appeal below, held :
1. That the case of defendant 1 that the plaintiff and his brother, defendant 2, were joint, is false, because the plaintiff and defendant 2, lived separately and, at the date of the alleged handnote, that is, the 26th Kuar 1358 Fasli corresponding to the 20th October 1950, they were separate from each other, and, therefore, it was improbable that the plaintiff and defendant 3, would jointly purchase a bullock from defendant 1, and, would jointly execute a handnote in his favour.
2. That defendant 2, Dhora Bhagat, had no lands to cultivate, for which he would have the necessity of purchasing a bullock, and, therefore, this also makes the execution of a joint handnote by defendant 2 and the plaintiff in favour of defendant 1 for an unpaid portion of the price of a bullock improbable.
3. That the evidence of the handwriting expert, D.W. 1, on the point of movement, the pen pressure and similarly of the writings could not be accepted, but, the left thumb impression of the plaintiff was present on the disputed handnote and there was nothing to explain it.
4. That the service of summons, in the money suit in question, on the present plaintiff was not proper, but the fact that the summons was not served upon him did not improve the matter when the plaintiff had failed to prove his assertion that he did not compromise.
5. That the compromise petition exhibit B, was signed by Tilakdhari, the plaintiff.
6. That the frauds alleged have not been proved by the plaintiff on whom the onus lay to prove the indicia of fraud alleged in the plaint.
7. That, in spite of several circumstances being against the disputed handnote being genuine and for consideration it was not necessary to decide, in the present suit, as to whether the handnote sued upon in the previous suit was genuine and for consideration.
10. On the above findings, therefore, he held that the plaintiff had failed to prove that he was not a party to the compromise and that the compromise decree is fraudulent or forged. He, accordingly, affirmed the judgment of the trial court dismissing the plaintiff's suit.
11. On second appeal to this court, it was very strenuously urged by Mr. Thakur Prasad, who appeared for the appellant, as stated earlier, that the finding of the learned Judge of the court of appeal below that the disputed compromise, exhibit B, way signed by the present plaintiff, was, really based on, and largely influenced by his own comparison of the disputed writing of Tilakdhari on the compromise petition, exhibit B, which legally he could not do.
He further argued that the learned Judge not having accepted the evidence of the defendant's expert, D. W. 1, and, also after having observed that the report, exhibit 4, of the plaintiff's expert (P. W. 2), as also the report, exhibit A of the defendant's expert, D. W. 1, and the depositions of the two experts, D. W. 1 and P. W. 2 respectively, were of no help, he erred in constituting himself as an expert and in himself comparing the disputed writing with the admitted writing of Tilakdhari, on the registered ekrarnama of the 16th November, 1949, exhibit 10, and, on the basis of that comparison alone in coming to the conclusion that the compromise had been signed by the plaintiff Tilakdhari, and, that he compromised.
It was further urged that the court of appeal below was wrong in saying that D. Ws. 4 and 5 were independent witnesses, without considering their important statements in their cross-examination which made them unreliable and their evidence valueless.
12. The court of appeal below, on the question or the signature of the plaintiff, observed, in paragraph 13 of his judgment, as below :
"The exhibits 4 and A(1), namely, the opinions of the handwriting experts examined on either side and the depositions of the P. W. 2 and D. W. I do not help. I have myself looked into the disputed and the admitted writings. Certainly the formation of some of the letters in the disputed (writing) do differ from corresponding letters in the admitted writing. But the general formation and the characteristics of the writings of the disputed and the admitted writings do not widely differ to the naked five. Therefore, I am of the opinion that the compromise petition was signed by him."
13. With reference to the above observation of the learned Judge of the court of appeal below, I cannot do better than reproduce here what Lord Atkin of the Privy Council, in Kessarbai v. Jethabhai Jivan, AIR 1928 PC 277 at p. 281, said in similar circumstances :
"But their Lordships are unable to come to the same conclusion as the members of the appellate court. They would have thought it unsatisfactory and dangerous in any event to stake a decision in such a case as this on the correct determination of the genuineness of a signature by mere comparison with admitted signature, especially without the aid in evidence of microscopic enlargements or any expert advice. But their Lordships have also themselves carefully compared the endorsements with the admitted signatures, and they are unable to feel the certainty which was expressed by the Chief Justice."
14. In that case also, the genuineness of certain endorsements were in dispute and, the learned Chief Justice of the Bombay High Court, who presided over the Bench, which heard the appeal, which came up ultimately on appeal to the Privy Council, on comparing the endorsements with the admitted signatures felt no doubt that the endorsements were genuine. The judgment of the High Court was set aside by the Privy Council and the judgment of the criminal court was restored.
15. The present case, it appears to me, is on all fours with the facts of the just mentioned Privy Council case. The learned Judge of the court of j appeal below here, after having rejected the evidence of the defendant's expert, D. W. 1, and not having disbelieved the plaintiffs expert, P. W. 2 and also after having felt that the reports and the evidence of the two experts were of no help, should not have converted himself into a handwriting expert and after himself comparing the disputed signature with the admitted signature of Tilakdhari, the present plaintiff, without the aid in evidence of any other expert advice, by a mere comparison with the admitted signature, staked a decision in such a case as this on the correct determination of the genuineness of the signature of the plaintiff, and held that the impugned compromise, exhibit B, had been signed by Tilakdhari Bhagat, the present plaintiff.
16. In order to satisfy myself if the above opinion of the court of appeal below, was really correct and convincing, I also looked, although with great reluctance, on being asked by the appellant, into the disputed writing of Tilakdhari on the compromise, exhibit B, for comparing it with the admitted writing of Tilakdhari on (he just mentioned document, exhibit 10, and, also looked into their photographic enlargements.
17. After carefully comparing them, I feel convinced, and have no doubt in my mind, that the alleged signature of Tilakdhari on the compromise petition, exhibit B, is most dissimilar to his admitted signature on the ekararnama exhibit 10. There is so much dissimilarity that On such a comparison I am unable to feel the certainty which has been expressed by the learned Judge of the court below. On the other hand, if I feel any certainty about any matter hi this connection, it is to the effect that the compromise, Ext. B, does not at all bear the signature of Tilakdhari, the present plaintiff, nor, is the alleged writing; on the compromise, Ext. B, of Tilakdhari Bhagat. I do not at all agree with the learned Judge of the court of appeal below in his observation that "the general formation and the characteristics of the writings of the disputed and the admitted Writings do not widely differ to the naked eye".
In my opinion, they do widely differ and there is absolutely no similarity whatsoever. I examined the writings also with the help of a magnifying glass.
18. It was, however, argued by Mr. A.B.N. Sinha, appearing for the respondents, with equal vehemence on behalf of defendant 1 -- respondent 1, that it was not correct to say that the finding of the court of appeal below that the compromise was signed by the present plaintiff was based on his own observation of the disputed writing with the admitted writing, because it was also based on the evidence of the lawyer D. W. 4 and his clerk, D. W. 5, whose evidence has been accepted by the court of appeal below.
19. It cannot be doubted, as observed by the Supreme Court, in Kishore Chandra Singh Deo v. Ganesh Prasad Bhagat, AIR 1954 SC 316, that conclusions based on mere comparison of handwriting must, at beat, be indecisive, and, yield to the positive evidence in the case.
20. Let us, therefore, see if there is such positive and reliable evidence as contended by the respondent and if D. Ws. 4 and 5 on whose evidence reliance was placed by Mr. Sinha, and whose evidence has been accepted by the court of appeal below, are really independent and reliable witnesses and if their evidence can be said to be such positive evidence. It is true that the finding as to fraud is a finding of pure fact, which cannot be interfered with in a second appeal, provided it is based on legal evidence.
Here the grievance of the appellant is that the finding is a coloured finding as it is really based on the mere comparison of the signatures by the court itself, inasmuch as, if the evidence of D. W. 4 and D. W. 5 referred to by the court of appeal below, is properly considered their evidence was not only valueless but it could on no account be considered to be positive evidence to prove the signature of the plaintiff on the compromise.
21. It is true that the learned Judge of the court of appeal below has said that D. Ws. 4 and 5 are independent witnesses and that they have not lied and therefore their evidence has been accepted. But on reading the judgment in appeal the impression which it creates is that really what has influenced the decision of the learned Judge is his own opinion formed on his comparison of the disputed signature and writing with the admitted signature and writing. If he had not done so, I feel certain he would not have, only on the evidence of D. Ws. 4 and 5, held that the compromise was signed by the plaintiff.
I say so because towards the end of paragraph 13 of his judgment, he said that D. W. 4, the pleader, did not know the present plaintiff from before, but that his clerk D. W. 5 introduced the plaintiff to him. The learned Judge did not refer to the important statements made by D. W. 4 and D. W. 5, which, if considered, would have made him feel that only on the evidence of D. Ws. 4 and 5 it could not be said with confidence that the disputed compromise was signed by the plaintiff. (After discussing the evidence of D. Ws. 4, 5 and 2 His Lordship proceeded).
22. These were the only three witnesses relied upon by the learned Judge of the court of appeal below in paragraph 13 of his judgment. I am, however, not at all impressed with their evidence. From paragraph 13 of the judgment itself it will appear that the learned Judge held that the compromise was signed by the plaintiff not really because of the evidence of these three witnesses, but because of his conviction as a result of his own comparison of the writings.
23. On the findings arrived at by the court of appeal below, which have been set out earlier, in my opinion, the plaintiffs have succeeded in proving that defendant 1 by a fraudulent suppression of summons managed to get a fraudulent compromise decree on the basis of a forged compromise. I may mention that the court of appeal below is wrong in observing that on 25-1-52 the plaintiff was not at Patna, because the attendance register, Ext. I, does support the plaintiff.
24. I would, therefore, reverse the finding of the court of appeal below and hold that the plaintiff has proved that he was not a party to the compromise and that the compromise was forged and, therefore, the compromise decree based thereon is also forged and fabricated.
25. In the ordinary course, I would have remanded the appeal to the court of appeal below for a rehearing, but, on reading the evidence of the D. Ws. and the judgments of the courts below and particularly on comparison with the naked eye as well as with a magnifying glass of the disputed writing and signature with the admitted writing and signature of the plaintiff, Tilakdhari, with the help of the expert advice of P. W. 2 and the photographic enlargements, I felt absolutely convinced that the compromise was forged, and, that it did not bear the signature or writing of the plaintiff, and, therefore, I did not like the parties to be put to further harassment, and unnecessary expenses, which would be the natural result of a remand, when the original suit is being restored to be retried on merits.
26. On a consideration of the evidence on the record and all the facts and circumstances of the case and also after reading the judgments of the two courts below, I fee] no hesitation in corning to the conclusion that the impugned compromise, Ext. B. is a forged and fabricated document, which was never entered into or signed by the present plaintiff, Tilakdhari Bhagat, and that the present defendant 1, then plaintiff, by fraudulent suppression of summons on the present plaintiff, then defendant 2, and, by forging the compromise, Ext. B, fraudulently got the impugned compromise decree passed against the defendants of that suit including the present plaintiff. The compromise decree being tainted with fraud cannot, therefore, stand. I would, accordingly, set aside the compromise decree, Ext. B, and, decree the plaintiffs suit with costs of this Court and of the two courts below.
27. The question, however, which, then, arises, is what would be the result of the setting aside of the compromise decree? As the question of genuineness of the hand-note, which was the basis of the money suit, brought by defendant 1 against the plaintiff and defendant 2, has not been decided by the court of appeal below in the present suit, I think the proper order to make is to direct that the original money suit, Money Suit No. 339 of 1951 of the court of the Munsif at Gopalganj, should be restored to its file, and, decided now on its merits, expeditiously, as it is a suit of 1951, and, disposed of in accordance with law.