690 T H E IK D IA N L A W R E P O R T S . [V O L .

X L

ORIGINAL CIVIL.

Before M r. Justice Farran.

1887. A B D U L L A P A 'E U , ( P l a i n t i f f ) , v. G A IS T N IB A T a n d O t h e r s ,
( D k f e n d a n t s.)*

Evklence— JDml— P roo f o f deed denied hy the party hy whom it was executed, where
attesting witnesses were dead— Evidence A c t I o f 1872, Sec. 32, CL (2),

•A deed o f conveyance w as tend ered in eviden ce ivhicli p u rp orted to bear the

m ark of G. as vendor, and w h ich w as d u ly attested b y fo u r w itnesses, G ., h o w ­
ever, denied that she h a d ever e x e cu te d th e deed, and said that the m ark w as
not her’-s. A ll the attestin g w itnesses w ere dead. A w itness w as called w h o
knew the ha ndw riting o f one o f th e attestin g witnesses, and w h o sw ore th at the
signature o f that w itness to th e attesta tion clause o f th e d eed was genuine.

Held, on th e au th ority o f Whitelocke v . MusgroneiX), th a t th e d eed waa adm iss­

ible iu evidence, its execu tioii b y 6 . b e in g sufficiently p rov ed .

T he plaintiff sued the defendants to recover possession of

certain fajanddri land on which two houses had formerly stood,
but one of which had recently been pulled down by the
Municipality of Bombay. He derived his title to one of the
houses from one Dhanji Cristnaji, to whom (he alleged) the first
defendant, Gannib4i, had sold it on the 17th March, I860. At
the hearing of the case the plaintiff produced an English deed of
conveyance (exhibit 0) of that date, purporting to bear the mark
of the first defendant, and duly attested by four witnesses, all of
whom were dead. The first defendant, Gannibai, denied that she
had ever executed this deed, and said that the mark was not her s.
In order, therefore, to prove the deed, counsel for the plaintiff
called a witness who knew the handwriting of one of the attest­
ing witnesses (Dajibd Pandurang), and who swore that the sig­
nature of that witness to the attestation clause of the deed was
genuine.
Vicaji and Dhairyavdn for the plaintiff
Mdnkar and Sanjdnifov the first two defendants.
In giving judgment upon the case, Farran, J,, with reference
to the admission of the deed in evidence, said : The plaintiff"
relies upon exhibit 0 as the foundation of his case in respect of
•» Suit ITp. ,346 of 1886.
(I) 2 Cr. & M ., 511.^
VOLc XL] BOMBAY SERIES. mi

this house 154s. It purports to be a conveyance from Gannibai. 1887:

to Dhanji Oristnaji, and it bears date the 17th March, I860- Abdulla ,
Pi.KU
I have no doubt tbat it is a genuine document in the sense V.
G annibai.
that it was, in fact, executed by Gannibai^ though she denies'
that she put her mark to it. It is proved ta be attested by
Ddjibd Pandurang Joshi, a deed-writer who is dead, and is mani­
festly all ill his handwriting, including the words descriptive
of the marks— woman. The question is, whether that is suffi­
cient proof of its execution to allow of its being put in evidence.
I admitted it on the authority of the law laid down in Whitelcohe
V . Masgrav<i^'^\ and I think rightly so. Section 67 of the Evidence

Act I of 1872 enacts that ‘ ifa document is alleged to be signed

* * by any person, the signature * * * must be proved to be
his handwriting.’ This proof may, of course, be by any of the
recognised modes of proof; and amongst others by statements
admissible under section 32. The statement of the deed-writer,
that the mark was Gannibai’s, is, I think, admissible under section
S2, clause (2) see Taylor on Evidence, sec. 1658. No inference
can, I think,, under the circumstances of the case, be drawn
against the plaintiff from, his failing to call, or to strictly prove
the death of,, the other attesting witnesses. The deed appears
to have been presented in the municipal office in 1863, and now
comes from the proper custody. Disbelieving the evidence of
the defendant.Gannibai I hold that it was executed by her.”
Attorneys for the plaintiff:—Messrs. Bdlkrishna and Dikshit.
Attoraey for the first two defendants :-~Mr., Bland..
(1) C r. & M ., 511.

ORIGINAL. CIYIL.,

B efore-M r.-Justice Farran.

I N je ^ 7 S H jA T K A B D U L A Z I Z . 1887.
Jul’i / 14.
RegiBtration—Act H I of 1877,: Secs. 35 and 77— Denial of e x e c u t l d i i i wliat is—
Pmctice—Specific Relief Act I of 187% Sec..45>
A . b y an indenture o f m ortgage dated 15tli March', 1887, m ortg a g ed certain p r o ­
p e rty to S. to- secure th e rep a ym en t o f B s. 18,500 within, t w o m onths. The
d eed w as d u ly lod ged fo r r e g is t r a t io n -h u t A . (the inD rtgagor)negIeoted to appear