1929. Present : Fisher C.J. and Drieberg J.

KANDIAH v. KARTHIGESU.

99-D. C. Jaffna, 23,599.

Action for declaration that the signature of a deceased person is forgery- Recovery of property-Letters of administration-Civil Procedure Code, s. 647.

Where an action was instituted to have it declared that the signature of a deceased person to the discharge of a mortgage bond and the transfer of a land were forgeries,-

Held, that the action was one for the recovery of property belonging to the estate of the deceased within the meaning of section 547 of the Civil Procedure Code.

APPEAL from a judgment of the District Judge of Jaffna. The facts appear from the judgment of the Chief Justice.

H. V. Perera (with N. E. Weerasooriya, Navaratnam, and Subramaniam), for defendant, appellant.

Keuneman (with Ramachandra), for plaintiff, respondent.

November 4, 1929. FISHER C.J.-

In this case plaintiff prays for a declaration that an endorsement on a mortgage bond (P 5) and a deed of transfer (P 4) are forgeries. After hearing a very considerable body of evidence the learned Judge gave judgment in favour of the plaintiff and a decree was issued declaring that both the documents referred to were forgeries. In my opinion the case in respect of P 4 and P 5 must be carefully separated. P 4 is a notarially executed document and the onus being on the plaintiff to prove that it was a

forgery the question is whether he discharged that onus. The parties to the document were one Mootathamby and his wife Sinnappillai as transferors and the defendant as transferee. The  document purports to have been executed on October 11, 1927. It was apparently registered on November 18, 1927, and Mootathamby, who was an old man of over eighty years of age, died on November 26, 1927. For the purpose of proving that this document was a forgery the plaintiff has, in my opinion, to rely entirely on the evidence of a handwriting expert. It was urged that there was other evidence to support the plaintiff's contention, namely, certain statements alleged, to have been made at some indefinite date by the deceased man indicating an intention to benefit the second plaintiff and his brother. The sole deponent to this expression of intention is the second plaintiff himself, who in the course of the action became the only plaintiff, and even if such evidence is legally admissible on the issue the Court had to try, namely, whether this document was a forgery or not, I do not think that it is of any value. That being so, is it possible to hold that P 4 was a forgery solely on the evidence of the handwriting expert ? Looking at his evidence as a whole one is forced to the conclusion that he was by no means free from doubt in his opinion on the question of Mootathamby's signature. He had to consider the same question in connection with the document P 5, and after two authentic specimens of Mootathamby's signature had been put before him he felt constrained to admit that he might have to modify a clause in his report with regard to Mootathamby's signature having been forged. The evidence of an expert on handwriting is at best the expression of an opinion, no doubt in many cases a very well founded opinion. But having regard to the whole of the expert's evidence I do not think it is possible to accept it as a basis for a definite finding that P 4 was forged. This view is, moreover, supported by what I cannot help thinking was the reliable evidence of the Notary employed to draft the document. His. evidence does not read like the evidence of a man "who is out solely to support the case of the person on whose behalf he is giving evidence. In examination in chief, for instance, he deposed to something which he certainly would have refrained from disclosing had he been, as he must be taken to be if his evidence is rejected, a co-conspirator with the defendant, in concocting a false case. Whether the defenda