Sarju Pershad Vs. Raja Jwaleshwari
Pratap Narain Singh & Ors  INSC 30 (14 November 1950)
FAZAL ALI, SAIYID MAHAJAN, MEHR CHAND
CITATION: 1951 AIR 120 1950 SCR 781
CITATOR INFO :
R 1960 SC 115 (13) F 1974 SC 66 (55) F 1983
SC 114 (8) RF 1985 SC 89 (8) RF 1988 SC 103 (12) F 1988 SC1845 (18)
Practice--Appellate court--Finding of fact
depending on credibility of witnesses--Interference--Correct principle.
When there is conflict of oral evidence of
the parties on any matter in issue and the decision hinges upon the credibility
of the witnesses, then unless there is some special feature about the evidence
of a particular witness which has escaped the trial judge's notice or there is
a sufficient balance of improbability to displace his opinion as to where the
credibility lies, the appellate court should not interfere with the finding of
the trial judge on a question of fact.
It would not detract from the value to be
attached to a trial judge's finding of fact if the judge does not expressly
base his conclusion upon the impressions he gathers from the demeanour of
The rule is, however, only a rule of practice
and does not mean that the court of first instance can be treated as infallible
in determining which side is telling the truth or is refraining from
[Where the High Court reversed a finding of
fact arrived at by the trial court depending on oral evidence on the ground
that the rule that the appellate court should be s1ow to differ from the
conclusions arrived at by the trial judge who had seen and heard the witnesses
did not apply to the case as the trial judge did not base his conclusions on
the impressions created in his mind by the witnesses who deposed before him,
but upon the inherent improbability of the circumstances deposed to ,the
Supreme Court held that the high court's approach to the case was not proper
and, after weighing the whole evidence in case reversed the finding of the High
Court.] W.C. Macdonald v. Fred Latimer (A.I.R. 1929 P.C.15 at p.
18), Watts v. Thomas ( A.C. 484 at p.
486), Saraveeraswami v. Talluri (A.I.R. 1949 P. C. 39.), Netherlandsche Handel
Maatschappij v.R.M.P. Chettiar Firm and Others (A.I.R. 1929 P.C. 202,205),
APPELLATE JURISDICTION: Civil Appeal No. LXX
Appeal from the judgment of the Allahabad
High Court (Verma and Yorke JJ.) dated the 22nd April, 1943.
100 782 M.C. Setalvad, Attorney-General for
India (Sri Narain And ley, with him), for the appellant.
P.L. Banerjee (H. J. Urnrigal, with him), for
1950. November 14. The judgment of the Court
was delivered by.
MLKHERJEA J.--This is an appeal against a
judgment and decree of a Division Bench of the Allahabad High Court dated April
22, 1943, which reversed on appeal those of the Civil Judge of Basti dated 6th
of November 1939.
The suit, out of which the appeal arises, was
commenced by the plaintiff, whose successor the present appellant is, to
recover a sum of Rs. 11,935 by enforcement of a simple mortgage bond. The
mortgage deed is dated the 8th of March 1926 and was executed by Raja
Pateshwari Partap Narain Singh, the then holder of Basti Raj which is an
impartible estate governed by the rule of primogeniture, in favour of Bhikhiram
Sahu, the father of the original plaintiff Ramdeo, to secure a loan of Rs.
5,500 advanced by the mortgagee on hypothecation of certain immovable
properties appertaining to the estate of the mortgagor. The loan carried
interest at the rate of 9 per cent per annum and there was a stipulation to pay
the mortgage money within one year from the date of the bond. The mortgagor and
the mortgagee were both dead at the time when the suit was instituted, and the
plaintiff in the action was Ramdeo Sahu, the son and heir of the mortgagee,
while the principal defendant was the eldest son of the mortgagor who succeeded
to the Basti estate under the rule of primogeniture. It was stated in the
plaint that absolutely nothing was paid by the mortgagor or his successor
towards the mortgage dues and the plaintiff claimed the principal amount of Rs.
5,500 together with interest at the rate of 9 per cent. per annum up to the
date of the suit.
A number of pleas were taken by the
contesting defendant in answer to the plaintiff's claim, most of which are not
relevant for our present purpose. The 783 substantial contentions raised by the
defendant were of a three-fold character. In the first place, it was urged that
the document sued upon was not a properly attested or validly registered
document and could not operate as a mortgage instrument in law. The second
contention raised was that there was no consideration in support of the
transaction, at least to the extent of Rs. 2,000, which was represented by
items 3 and 4 of the consideration clause in the document.
The third and the last material defence
related to a claim for relief under the United Provinces Agriculturists' Relief
The trial Judge held in favour of the
defendant on the last point mentioned above and negatived his other pleas.
The result was that he made a preliminary
decree for sale in favour of the plaintiff for recovery of the principal sum of
Rs. 5,500 with interest at certain rates as are sanctioned by the U.P.
Agriculturists' Relief Act; and agreeably to the provisions of that Act the
decretal dues were directed to be paid in a number of installments.
Against this decision, the defendant took an
appeal to the High Court of Allahabad which was heard by a Division Bench
consisting of Verma and York JJ. The learned Judges reversed the judgment of
the trial Judge and dismissed the plaintiff's suit on one ground only, viz.,
that the bond was not attested in the manner required by law and consequently
could not rank as a mortgage bond; and as the suit was instituted beyond 6
years from the date of the bond, no money decree could be claimed by the
It is against this judgment that the
plaintiff has come up on appeal to this court, and the main contention raised
by the learned Attorney-General, who appeared in support of the appeal, is that
in arriving at its decision on the question of attestation, the High Court
approached the matter from a wrong standpoint altogether and on the materials
in the record it had no justification for reversing the findings of the trial
court on that point.
The question for our consideration is
undoubtedly one of fact, the decision of which depends upon the 784
appreciation of the oral evidence adduced in the case. In such cases, the
appellate court has got to bear in mind that it has not the advantage which the
trial Judge had in having the witnesses before him and of observing the manner
in which they deposed in court. This certainly does not mean that when an
appeal lies on facts, the appellate court is not competent to reverse a finding
of fact arrived at by the trial Judge. The rule is--and it is nothing more than
a rule of practice --that when there is conflict of oral evidence of the
parties on any matter in issue and the decision hinges upon the credibility of
the witnesses, then unless there is some special feature about the evidence of
a particular witness which has escaped the trial Judge's notice or there is a
sufficient balance of improbability to displace his opinion as to where the
credibility lies, the appellate court should not interfere with the finding of
the trial Judge on a question of fact(1). The gist of the numerous decisions on
this subject was clearly summed up by Viscount Simon in Watt v. Thomas(2), and
his observations were adopted and reproduced in extenso by the Judicial
Committee in a very recent appeal from the Madras High Court(3). The
observations are as follows:
"But if the evidence as a whole can
reasonably be regarded as justifying the conclusion arrived at at the trial, and
especially if that conclusion has been arrived at on confliciting testimony by
a tribunal which saw and heard the witnesses, the appellate court will bear in
mind that it has not enjoyed this opportunity and that the view of the trial
Judge as to where credibility lies is entitled to great weight. This is not to
say that the Judge of first instance can be treated as infallible in
determining which side is telling the truth or is refraining from exaggeration.
Like other tribunals, he may go wrong on a question of fact, but it is a cogent
circumstance that a Judge of first instance, when (1) Vide Lord Atkin's
observations in W.C. Macdonald v. Fred Latinmer, AI.R. 1929 P.C. 15, 18.
(2)  A.C. 484. at p. 486.
(3) Vide Saraveeraswami v. Talluri, A.I.R. 1919
785 estimating the value of verbal testimony,
has the advantage (which is denied to Courts of appeal)of having the witnesses
before him and observing the manner in which their evidence is given." It
is in the light of these observations that we propose to examine the propriety
of the decision of the s learned Judges of the High Court in the present case.
It will appear that the mortgage deed besides containing the signature of the
executant, purports to bear the signatures of three other persons, two of whom
are described as attesting witnesses and the third one as the scribe. Harbhajan
Lal and Jawala Prasad Tewari purport to have signed the document as attesting
witnesses and Jawala Prasad Patwari is the person who has signed it as the scribe.
Jawala Prasad Tewari was admittedly dead when the suit was brought and
Harbhajan Lal, the only surviving attesting witness was called on behalf of the
plaintiff to prove the execution of the deed as is required under section 68 of
the Indian Evidence Act.
Harbhajan Lal stated in the witness box that
he did sign the document as a witness and so did Jawala Prasad Tewari, but
neither of them signed it in the presence of the mortgagor;
nor did the mortgagor sign in their presence.
On this statement being made, the witness was declared hostile and he was
allowed to be cross examined by the plaintiff's Counsel. He was cross examined
by the defendant also and in answer to the questions put to him by the
defendant's lawyer, he stated that he signed the deed at the Collectorate
Kutchery, meaning thereby the Bar Library, where he used to sit as a petition
writer and the document was taken to him at that place by Bhikhi Ram Sahu, the
mortgagee, Ghur Lal, a Karinda of the mortgagor, and Jawala Prasad Patwari, the
scribe. Jawala Prasad Tewari signed the deed after him.
The mortgagor certainly did not come to that
place and his signature was already on the deed when the witness signed it.
The details of the defendant's version
relating to execution of this document were given by Jawala Prasad Patwari, who
was the principal witness on the 786 side of the defendatnt. He says that he
prepared the draft at the sherista or the office of the Raja Sahib which is
outside his Kot or palace. The draft was prepared under instructions from
Bhikhi Ram, the mortgagee. and Ghur Lal, the Karinda of the mortgagor, both of
whom were present when the draft was prepared. After the draft was fair copied
and stamped, the witness signed it as the scribe and then it was taken-by Bhikhi
Ram and Ghur Lal to the Kot or palace of the Raja for his signature. After
obtaining the Raja's signature, Bhikhi Ram went away to his house and some time
later he as well as Bhikhi Ram and Ghur Lal went to the Collectorate Kutchery,
where they took the signatures of Harbhajan Lal and Jawala Prasad Tewari. They
then went to the registration office, where the document was presented for
registration by Jainarayan Sukul who held a general power of attorney for the
As against this, there is a completely
different version given by the plaintiff himself and his witness Buddhu Lal.
According to the plaintiff, the document was
executed and attested at one and the same sitting in the Kot or palace of the
Raja; the terms had been settled beforehand between Bhikhi Ram and the
mortgagor and on the 8th of November 1926 the plaintiff himself, and not his
father, went to the Raja's palace at about 10 or 11 A.M. in the morning to get
the document executed. He was accompanied by three persons to wit Harbhajan Lal,
the deed writer of his father, Buddhu Lal, an old servant of the family, and
Jawala Prasad Tewari who was also well known to the plaintiff and was taken to
bear witness to the deed. They found Jawala Prasad Patwari already with the
Raja when they reached the Kot. The draft was prepared by Buddhu Lal at the
suggestion of the Raja. It was the plaintiff's desire that the final document
should be scribed by Harbhajan Lal but as the Raja wanted to oblige Jawala
Prasad Patwari, who was the Patwari of Basti proper, the deed was faired out
and scribed by Jawala Prasad patwari. After the Raja had put his signature on
the 787 document in the presence of Harbhajan Lal and Tewari, both the latter
signed the document in the presence of the Raja.
The subsequent events narrated by the
plaintiff relate to the registration of the document and we do not consider
them to be material for our present purpose.
This story of the plaintiff is supported
materially and on all points by Buddhu Lal, who was an old servant of the family,
though he was no longer in service when he deposed in court.
There were thus two conflicting versions
placed before the court and each side attempted to substantiate its case by
verbal testimony of witnesses. The trial Judge was to decide which of the two
versions was correct and he accepted the story of the plaintiff and rejected
that of the defendant.
The learned Judges of the High Court in
dealing with the appeal do observe, at the beginning of their discussions, that
on a question of fact the appellate court should be slow to differ from the
conclusions arrived at by the trial Judge who had seen and heard the witnesses;
but in their opinion, this rule did not apply to the present case as the trial
Judge here did not base his conclusions on the impressions created in his mind
by the witnesses who deposed before him. What the trial Judge relied upon, it
is said, was not the demeanour of the witnesses as index of their credibility
but upon the inherent improbability of the circumstances deposed to by the
defendant's witnesses. It is observed by the High Court that the trial Judge,
when he found the defendant's story to be improbable, should have considered
whether or not there were improbable features in the plaintiff's case also, and
whether the evidence of the plaintiff and his servant Buddhu Lal merited
credence at all. The learned Judges of the High Court then proceed to examine
and discuss at great length the different reasons put forward by the trial
Judge in support of his finding that the defendant's case was unreliable. These
reasons are held to be inconclusive and unsound and the High Court further
found that the plaintiff's story 788 as narrated by him and his servant is
improbable and not worthy of belief.
In our opinion, the High Court's approach to
the case has not been proper and its findings are unsupportable on the
materials in the record.
Here was a case where the controversy related
to a 'pure question of fact which had to be determined by weighing and
appraising of conflicting oral testimony adduced by the parties. It cannot be
denied that in estimating the value of oral testimony, the trial Judge, who
sees and hears the witnesses, has an advantage which the appellate court does
not possess. The High Court was wrong in thinking that it would detract from
the value to be attached to a trial Judge's finding of fact if the Judge does
not expressly base his conclusion upon the impressions he gathers from the
demeanour of witnesses (1). The duty of the appellate court in such cases is to
see whether the evidence taken as a whole can reasonably justify the conclusion
which the trial court arrived at or whether there is an element of improbability
arising from proved circumstances which, in the opinion of the court, outweighs
such finding. Applying this principle to the present case, we do not think that
the High Court was justified in reversing the finding of the trial Judge on the
question of attestiation of the document. In the opinion of the High Court the
story narrated by the plaintiff and his servant is untrue, and the main reason
given is that it is not at all probable that the plaintiff and not his father
Bhikhi Ram was present at the palace of the Raja when the document was
executed. The mortgagor, it is said, was an influential person in the locality
occupying a very high social position and it would be indecorous and against
Indian customs for a man like Bhikhi Ram not to be personally present when the
Raja was going 'to execute a document in his favour. The learned Judges seem to
think that the plaintiff was not really at the spot when the mortgage deed was
executed and as Bhikhi Ram was dead, this story was manufactured by the
plaintiff in order to Vide the observations of Lord Carson in Netherlandsche
Handel Maatschappij v, R.M.P. Chettiar Firm and Others, A.I.R 1929 P.O. 202,
789 enable him to prove attestation. Mr.
Banerjee appearing for the defendant respondent went to the length of
suggesting that it was only after Harbhajan Lal turned hostile in the witness
box and denied that he attested the document that the new story was invented by
We think that this argument rests on an
extremely flimsy basis which does not bear examination. It may be that the Raja
was a man of high social position, but it should be remembered that he was in
the position of a borrower and moreover it was not the first time that he was
borrowing money from Bhikhi Ram. As, however, he was the Raja of Basti, the
document was executed at his palace and not in the house of the mortgagee and
if as the plaintiff says, the terms were already settled between Bhikhi Ram and
the Raja and the only thing left was to embody the agreed terms in writing, we
fail to see why it was absolutely necessary for Bhikhi Ram to wait upon the
mortgagor personally; and why his adult son, who was sufficiently old and
experienced in business affairs, could not represent him in the transaction.
The suggestion of Mr. Banerjee that the new story was invented after the
plaintiff had seen Harbhajan Lal giving evidence against him in the witness box
is not worthy of serious consideration having regard to the fact that the
plaintiff himself stepped into the witness box immediately after Harbhajan Lal
had finished his deposition.
It seems to us also that the presence of
Harbhajan Lal and Buddbu Lal at the sitting when the mortgage transaction took
place was quite a probable and natural thing which cannot give rise to any
suspicion. It appears from the evidence on the record that Harbhajan Lal, who
was a professional deed writer, was usually employed for writing deeds of the
plaintiff's father and he figured either as a scribe or as an attesting witness
in various documents to which the plaintiff's father was a party. It was quite
natural for the plaintiff in such circumstances to take Harbhajan Lal alongwith
him to the Raja's palace on the day that the 790 mortgage bond was executed and
we see no reason to disbelieve the plaintiff's statement that his original
intention was to have the deed scribed by Harbhajan Lal. It is said by the High
Court that in the mofussil districts in the United Provinces the Patwari is the
person generally employed for drafting and scribing deeds. This cannot mean
that all the people in the district of Basti used to have their deeds drafted
and scribed by the Patwari. We have exhibited documents in the records of this
case where the name of Harbhajan Lal appears as the scribe; and so far as the
plaintiff's father was concerned, there is no doubt whatsoever that Harbhajan
Lal was the scribe ordinarily employed to do his work. In this case also if
Jawala Prasad Patwari had not been present on the spot, the plaintiff would
certainly have the document scribed by Harbhajan Lal, as so many documents in
favour of the plaintiff's father had been scribed by this man on previous
occasions. We see nothing improbable in the story that it was out of deference
to the wishes of the Raja that the plaintiff consented to the document being
scribed by Jawala Prasad Patwari.
As regards Buddhu Lal, it is not disputed
that he was an old and a trusted servant of the plaintiff's family.
That he was trusted in business matters is
clear from the fact that his name appears as a witness in the registered
receipt (Ex. 10) given by Sheo Balak Ram, to whom a sum of Rs. 500 was paid by
Bhikhi Ram under the terms of the disputed mortgage deed. We fail to see why it
was improbable that Buddhu Lal would accompany the plaintiff to the Raja's
palace on the day of the execution of the document.
The trial Judge relied to some extent upon
the fact that the signatures of the executant and Harbhajan Lal were in the
same ink in support of his conclusion that Harbhajan Lal signed the document at
the place of its execution and not at the Collectorate Kutchery as alleged by
him. Speaking for ourselves, we do not attach much importance to the similarity
in the ink which is after all not a very reliable test; but we do agree with
the trial Judge in holding that Harbhajan 791 Lal must have signed the document
at the time when it was executed and not afterwards; and it is really
inconceivable that an old-and experienced deed writer like him did not know the
requirements of proper attestation. On his own evidence he had attested
numerous documents and he could not recall. a single instance where he signed
the document in such manner as he did in the present case. The' way in which
the learned Judges of the High Court have attempted to explain away this part
of Harbhajan Lal's evidence does not appear to be satisfactory. The other
observation made by the High Court in this connection that in this particular
province there are many persons who are acquainted with law but do not care to
comply with its requirements on account of carelessness, indifference, sloth or
over-confidence is not relevant and need not be taken seriously. Whatever that
may be, we have no hesitation in holding that Harbhajan Lal knew perfectly well
what attestation means in law and he did sign the document as an attesting
witness at the Raja's Kot after the document was executed.
Jawala Prasad Patwari is apparently a man
under the control of the defendant and cannot be trusted. Why Harbhajan Lal did
go over to the defendant's side is a question which may not admit of an easy
answer. The trial Judge seems to be of opinion that it was probably due to the
influence exercised by Jawala Prasad Patwari, who is a covillager of Harbhajan.
We think it unnecessary to speculate upon these matters, for in our opinion
Harbhajan Lal stands condemned by his own statement in court.
Our conclusion is that the finding of the
trial Judge on the question of attestation is perfectly consistent with the
circumstances and probabilities of the case and the learned Judge did not omit
anything which ought to have been present to his mind in coming to a
conclusion. The evidence on the record taken as a whole fully supports the
finding, and in our opinion the High Court has reversed it on totally inadequate
grounds. The result is that the appeal must be allowed and the judgment of the
High Court should be 792 set aside. As the High Court, however, has dismissed
the suit only on the ground of non-attestation of the mortgage bond and did not
consider the other points which were raised before it, the case must go back to
that court in order that the other matters, which have been left undecided, may
be heard and decided by the learned Judges and the case disposed of in
accordance with law. The plaintiff appellant is entitled to costs of this
hearing as well as the costs of the High Court against defendant No. 1.
Agent for the appellant: Rajindar Narain.
Agent for the respondents: S.P. Varma.