SITA RAM Vs. NANKU

JUDGEMENT

(1.) This second appeal arises out of a suit brought by the respondents Nanku and Sukhu, against one Sitaram, appellant, for a declaration that a sale-deed purporting to have been executed on the 2 June, 1923, by Deosaran defendant 2 (i.e., respondent 3) was forged, fraudulent and fictitious. The suit was decreed by the trial Court on a finding that the defendant Sitaram had failed to prove the due execution of the deed by Deosaran his vendor.

(2.) On first appeal the Subordinate Judge of Benares found that there had been no clear issue in the trial Court as to forgery, and that, by reason of the absence of a clear issue, defendant 1 may have been led into supposing that he was not required to produce evidence of due execution of the deed by Deosaran. He accordingly framed an issue whether the sale-deed was genuine and had been executed by Deosaran, and took fresh evidence.

(3.) The defendant Sitaram produced a finger impression expert. He gave evidence that the thumb-impression on the deed purporting to be that of Deosaran agreed with the undoubted thumb-impressions tendered in evidence. He also produced the scribe by name Bishunath Singh and one Ramsundar, who purported to be an attesting witness. The conclusion of the Subordinate Judge, after hearing this evidence, was that: (a) the thumb-impression on the deed did agree with Deosaran's thumb-impression; (b) that the thumb-impression suggested that one of the thumb-impressions of Deosaran was taken on the top of another thump- impression of Deosaran, (c) that the scribe could not be believed, because he being a man of experience would never have allowed one thumb-impression to be taken on the top of another, but in the event of the first impression being obscure would have taken a second one on a different portion of the paper, and (d) that the other witness escontradicted one another and the scribe. On these findings the lower appellate Court came to an extraordinary conclusion. It was that somehow or other the thumb-impression of Deosaran had been fraudulently obtained upon the document, and that the defendant had failed to show that it was Deosaran's thumb-impression voluntarily impressed on the document. In order to give any meaning to this decision we have to suppose that the Subordinate Judge conceived the possibility either of a die having been made from some other thumb-impression of Deosaran and a forged impression by means of the die impressed on the document in question or that Deosaran's thumb-impression had been obtained when he was asleep or drunk.