KARALI PROSAD DUTTA Vs. EIRYCO

JUDGEMENT

(1.) The plaintiffs sued to recover from the defendants, the East Indian Railway Co., the price with interest of a bale of cloth, which formed part of a consignment dispatched from Howrah to the plaintiffs at Durgapur. The consignment was covered by a risk-note in form B, The Subordinate Judge decreed the suit, but on appeal taken from that decision the District Judge reversed the same and dismissed the suit. The plaintiffs have preferred this second appeal.

(2.) The District Judge held that the risk-note was signed by one Basudev who delivered the goods to the Railway Company for carriage, and the Railway Company absolved by reason of the risk-note.

(3.) It is contended on behalf of the appellants, in the first place, that it has not been legally proved that Basudev signed the risk-note. This fact was sought to be proved in this way : Basudev who is said to be alive was not called, obviously for the reason that it was either not possible for the defendants to find him out or to rely on him. D.W. 1, a freight calculator of the East Indian Railway at Howrah, who calculated the freight for the consignment, was called and he said that he attested the signature of Basudev on the risk-note, on Basudev having told him in answer to his enquiry that he had signed the note. It has been argued that this does not amount to legal proof of the fact that Basudev signed the note and reliance has been placed in this connexion on Secs.60 and 67 Evidence Act. It is said that as it was alleged that Basudev had signed the risk-note, under Section 67 it was necessary to prove that the signature on the risk-note was in Basudev's handwriting; and as the signing of the risk-note by Basudev was a fact which could be seen under Section 60, only such oral evidence of the fact could be given as was of a person who had seen Basudev signing the document. This precise contention was dealt with and overruled by Markby, J., in the case of Neelkanto Pandit V/s. Jaggobandhu Ghosh 12 B.L.R. App. 18. He held that Secs.60 and 67 were somewhat ambiguous, but that it was never intended by Section 67 that direct evidence of handwriting was always necessary, but the section merely stated with reference to deeds what was the universal rule in all cases, that the person who makes an allegation must prove it and lays down no new rule as to the kind of proof to be given and that it was never intended by Section 60 to exclude circumstantial evidence of a thing which could be seen, heard and felt, though at first sight the section might appear to have that meaning. If circumstantial evidence is allowable, then to prove that Basudev signed the note it is relevant to establish that Basudev admitted that he has signed it. This admission has been proved, and if believed it is a legal mode of proof of the fact in issue, namely, the fact of Basudev having signed the note. Whether it should be considered sufficient or not is a matter which we can go into on second appeal. "This contention of the appellants, therefore, must fail.