Report No. 69

Chapter 31

Proof of Signature

Section 67

31.1. Introductory.-

Section 67 provides that if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the hand writing of so much of the document as is alleged to be in that person's hand writing must be proved to be in his hand-writing.

31.2. In a sense, this provision is redundant, because it is a general rule of law that a party who alleges a fact must ordinarily prove it. The section1merely states, with reference to documents, the universal rule. However, the section brings out specifically the application of this rule in relation to one aspect of proof concerning documents-proof of execution. The provision applies as much to primary evidence as to secondary evidence2 Even where secondary evidence is given, execution of the original must be proved.

1. Nilkant Pandit v. Jaggobaidh, 12 BLR App 18 (Marklay).

2. Subudhi v. Raghu, AIR 1962 Ori 40 (42), para. 8.

31.3. Principle.-

The principle underlying the section is a simple one. Questions relevant to the contents of a document having been dealt with in sections 61-66, the further question arises with reference to a document used as evidence, namely, whether it is that which it purports be; whether, in other words, it is a genuine document. This is a question of its authorship-identity of signatures. This question is dealt with in section 67.1

1. Sarup v. Crown, AIR 1925 Lab 299 (304).

31.4. The question of genuineness is dealt with more particularly in relation to attested documents in subsequent sections. These sections are followed by section 73, which, incidentally, is not confined to attested documents.

31.5. Documents not necessarily in writing.-

It should be noted that a "document" is not necessarily in writing or signed. Writings constitute only one species of documents. The definition in the Act of "document"1 and the illustrations thereto, make this clear. But, if the document is in writing, its genuineness should have been either admitted, or should be established by proof, which should be given before the document is accepted by the court. This is what section 67, in substance, leads to.

1. See section 3, definition of 'document', and illustrations thereto.

31.6. Nature of the evidence required.-

The nature of the evidence to be tendered for proving the execution of a document will greatly depend upon the nature of the document. Proof of signature must, of course, be given, as signature is almost universal. Attestation is sometimes an imperative formality1 for the complete execution of a document. Sometimes a seal may be required.

1. See sections 68-73.

31.7. Mode of proof.-

No particular mode of proof of signature is prescribed in the Act. Mode of put This leaves a wide scope as to the media of proof. It has been held,6 for example, that "in order to prove the writing of a person, it is not necessary that the person must know the language in which the document has been written. If he has deposed that execution has been made in his presence and he has seen the executant putting his signature in his presence, it has been held that the document stands proved. On the same reasoning, if a person is an illiterate and has seen somebody putting his signature on a document in his presence, in my opinion, he has proved that document."

1. Gajraj v. Board of Revenue, 1966 All LJ 149 (151).

31.8. Direct proof not required.-

31.8. It should be noted that proof of signature need not be direct, i.e. by evidence of an eye witness. It can be circumstantial or indirect also. The ordinary methods of proving hand-writing are1 by calling as witness a person who wrote the document, or who saw it written, or who is qualified to express an opinion on handwriting, or by comparison or by admission.2 There may be circumstantial evidence also. And there can also be presumptions.3 The document itself could furnish internal evidence of its genuineness. Of course, this is not to say that any one mode will be enough.

1. Barendra Kumar v. Emperor, 1910 ILR 37 Cal 437 (502).

2. Ganpatrao v. Vasantrao, AIR 1932 Bom 588 (591).

3. Govind Ram v. Abdul Wahab, AIR 1963 Raj 234, para. 19.

31.9. Whether strict proof required.-

Observations occur in an Allahabad case,1 in the judgment of Ashworth J., to the effect that section 67 requires specific evidence that the signature is in the handwriting of the executant, and that the definition of "proof" will not be of use for the purposes of section 67.

1. Salaikh Chand v. Tamiz Banu, AIR 1928 All 303 (304).

31.10. Later, in the same judgment, Ashworth J. has described section 67 as requiring "strict proof of signature". This, with respect, seems to be a debtable view. It may be noted that the practice in England is not so strict. For example, in a very early English case,1 where the attesting witnesses were either dead or out of reach for the process of the court, and it was proved that the attestation was in the handwriting of the attestor who was dead, the Court held the handwriting of the obligor need not be proved. The Court held that attestation, when proved, is evidence of everything on the face of the paper which purports to be seen by the attesting witness. We are referring to this case to show that English courts do not confine themselves to "strict proof" of signature or execution.

1. Adam v. Kerr, (1798) 120 ER 952.

31.11. A somewhat similar situation arose in a Madras case,1 where it was held that the signature of the attesting witness, when proved, is evidence of everything on the face of the document and of the fact that he saw the executant make his mark.

1. Ponnuswami v. Kalyansundara, AIR 1930 Mad 770: ILR 63 Mad 662.

31.12. In fact, it was pointed out in a Supreme Court cases1 that the genuineness of the document is proof of the authorship of the document, and proof thereof is proof of a fact, like that of any other fact. In that case, internal evidence afforded Dy the contents of the document-that the document constituting a genuine link in a chain of correspondence-was described as a fact from which the court may be in a position to determine authorship of the document.

1. Mobarik Ali v. State of Bombay, AIR 1957 SC 857 (864), para. 11.

31.13. English law.-

It was observed in one of the early Allahabad cases1 that, in England, there is a distinction between the proof of handwriting and presumptive or other evidence that the document has been executed. But, with respect, this view as to the English law does not appear to be correct. We have already mentioned one English case2 relating to attestation. The inference to be drawn in cases of this kind (proof as signature of an attesting witness) depends on a number of circumstances peculiar to the cases in which they arise. Of course, if the court is not satisfied with the evidence adduced before it as to execution, the document remains unproved. This is because the evidence is insufficient. As a matter of law, however, for the proof of execution, any of the modes of proof, including even statements relevant under section 32(2), can be admissible.3

1. Goverdhan Das v. Hari, 1913 ILR 35 All 634.

2. Adam Kerr, supra.

3. Abdulla Paru v. Gannibai, 1887 ILR 11 Born 690 (691). (Witness called to prove the hand-writing of one attesting witness of a deed of conveyance).

31.14. Registration.-

Some controversy seems to have arisen in the past as WI the value of an endorsement made by the Registrar in a document in relation to execution of the document, and the admission about that made before the Registrar. It is not, however, possible to lay down any hard and fast rule on the subject.

31.15. No change needed.-

The above discussion is intended to elucidate some important aspects of the subject. The points discussed above do not seem to call for any amendment of the section.

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