The sufficiency of evidence to prove the execution of a document and the admissibility of prior depositions as substantive evidence.

Anantakrishna Ayyar, J.

1. This second appeal raises a somewhat important question relating to the construction of Section 67, Evidence Act. The original suit was instituted by the plaintiff for a declaration that he is the owner of the lands in suit, that the defendants had no occupancy rights, that the defendants were in possession as lessees under the plaintiff and for the recovery of possession of the land with mesne profits. The defendants pleaded that they were entitled to occupancy rights in the suit lands, that the plaintiff was not entitled to eject them, and that the plaintiff was entitled only to recover a rent of Rs. 10 per annum and not any mesne profits.

2. To prove the contention of the plaintiff, the plaintiff put in Ex. M, a muchilika alleged to have been executed by defendant 1 to Ramaswami Iyer, the plaintiffs vendor, on 2nd August 1893. Defendant 1 denied having executed Ex. M. He is a marksman, not able to write his name. Ex. M purports to have been executed by defendant 1 and to have been attested by two witnesses, (1) Subbaraya Ayyan and (2) Srinivasa Iyer, and purports to have been written in the handwriting of Nanjundayyan, who purports to have signed the document as writer of the same. Attesting witness Srinivasa Iyer was reported to be dead. The writer Nanjundayya was stated to have "joined an itinerant mutt" and to be beyond the process of the Court, and his whereabouts were not ascertainable and consequently he was not available as a witness. The other attesting witness Subbaraya Ayyan was examined as P. W, 10. He admitted his signature but denied having seen the executant execute the document. In a prior suit O.S. No. 1570 of 1912, between the same parties, this witness Subbaraya Ayyan was examined as a witness when he deposed to his having attested this muchilika and to the executant having executed the same in his presence. To prove the signatures of these attesting witnesses, certain other witnesses were examined who swore that they were familiar with the signatures of the witnesses to Ex. M and that the signatures in the document Ex. M were the signatures of Srinivasa Iyer and Nanjundayyan, the attesting witnesses to Ex. M. In these circumstances the lower Courts found that execution of Ex. M by defendant 1 was proved, and they took into account Ex. M in deciding the merits of the dispute between the parties.

3. The question is whether they were entitled, in law, to do so. It is clear that the prior deposition of the attesting witness Subbaraya Ayyan, P.W. 10, in a case between the parties to the present suit could not be utilized as substantive evidence in the present case. If the witness be dead, his prior depositions would be relevant and admissible under Section 33, Evidence Act, since the prior judicial proceeding was between the same parties and the adverse party in the first proceeding had the right and opportunity to cross-examine him, and the question in issue was substantially the same; but Section 33 could not apply to the present case, because the witness is not dead, but on the other hand is alive, and was in fact examined in the present suit as P.W. 10. His prior deposition accordingly is not available as substantive evidence, but could only be utilized to contradict or corroborate his present statements, under Sections 155 and 157, Evidence Act.

4. In his present deposition he denied having seen defendant 1 execute the document, even though confronted with his evidence to the contrary in the prior suit. He admits having signed Ex. M as an attesting witness. He does not know the signatures of the other attesting witnesses. The signatures of other attesting witnesses, however, had been proved by some witnesses examined in the suit who were familiar with the writing and signatures of those attesting witnesses. In these circumstances, was it legally open to the lower Courts to find the document Ex. M legally proved? If the above constitute legal evidence of the execution of the