Arjan Singh Alias Puran Vs. Kartar
Singh & Ors  INSC 14 (2 March 1951)
AIYAR, N. CHANDRASEKHARA FAZAL ALI, SAIYID
CITATION: 1951 AIR 193 1951 SCR 258
CITATOR INFO :
RF 1963 SC1526 (9) F 1974 SC2069 (5) RF 1976
Civil Procedure Code, 1908, O. XLI, r.
27--Additional evidence --Improper admission--Finding based on such evidence--Whether
conclusive--Interference--Punjab Custom Act (H of 1920), s. 7-Suit to contest
alienation of non-ancestral property--Maintainability.
The discretion to receive and admit
additional evidence in appeal is not an arbitrary one but is a judicial one
circumscribed by the limitations specified in O. XLI, r. 27, of the Civil
Procedure Code, and if additional evidence was allowed to be adduced contrary
to the principles governing the reception of such evidence, it would be a case
of improper exercise of discretion, and the additional evidence so brought on
the record will have to be ignored and the case decided as if it was
259 The legitimate occasion for admitting
additional evidence in appeal is when on examining the evidence as it stands
some inherent lacuna or defect becomes apparent, not where a discovery is made
outside the court, of fresh evidence, and an application is made to import it.
The true test is whether the appellate court is able to pronounce judgment on
the materials before it, without taking into consideration the additional
evidence sought to be adduced. Kessowji Issur v.G. 1. P. Railway (34 I.A. 115)
and Parsotim v. Lal Mohan (58 I.A. 254) referred to.
Though ordinarily a finding of fact, however
erroneous, cannot be challenged in second appeal, a finding which is arrived at
on the basis of additional evidence which ought not to have been admitted and
without any consideration of the intrinsic and palpable defects in the nature
of such evidence cannot be accepted as a finding which is conclusive on appeal.
Under s. 7 of the Punjab Act II of 1920 no
one can contest an alienation of non-ancestral immoveable property on the
ground that such alienation is contrary to custom.
CIVIL APPELLATE JURISDICTION : Appeal (Civil
Appeal No. 31 of 1950) against a judgment and decree dated 28th February, 1946,
of the High Court of Judicature at Lahore in Regular Second Appeal No. 887
Ram Lal Anand (Harbans Lal Mittal, with him)
for the appellant.
Bakshi Tek Chand (P.S. Safeer, with him) for
1951. March 2. The Judgment of the Court was
delivered by CHANDRASEKHARA AIYAR J.--The plaintiff, Arjan Singh alias Puran,
brought a suit in the court of the Subordinate Judge, Jullundur, against Inder
Singh, Kartar Singh and five others, for a declaration that a will executed by
the first defendant, Inder Singh, in favour of the second defendant, Kartar
Singh, about 14 years ago was null and void as against the plaintiff, who was
the first defendant's reversionary heir after his death. The plaint comprised a
half share of land measuring 395 kanals in the village of Kadduwal, 34 260
another half share of land measuring 837 kanals and 11 marlas in the village of
Pattar Kalan, and four houses in the latter village. In the pedigree attached
to the plaint showing the relationship of the parties, the plaintiff claims
Sehja Singh as his 4th ancestor. Jodha Singh and Jai Singh are shown as Sehja
Singh's sons. Defendant No. 1, Inder Singh, is Jodha Singh's grandson. It is
alleged that the parties are Jar agriculturists governed by the customary law
in matters of alienation of ancestral property and succession, and that as a
sonless proprietor under this law is not competent to make a will in respect of
his ancestral property, when there are collaterals up to the 5th degree, and as
the entire property mentioned in the plaint was ancestral, the will made by the
first defendant in favour of the second defendant who claimed to have been
adopted by the first defendant was invalid and ineffectual. Plaintiff was born
on 22nd July, 1919, and was a minor when the will was made, and so the suit was
The suit was contested mainly by the second
defendant, Kartar Singh, who set up his adoption, and pleaded that the
properties were not at all ancestral as regards the plaintiff. Defendants 3 to
7 remained ex parte.
At the trial, it was admitted that the land
situated in Kadduwal was not proved to be ancestral. The Subordinate Judge held
that even the land in Pattar Kalan was not shown to be ancestral by the
evidence adduced on the side of plaintiff, as it was found that the common
ancestor, Sehja Singh, had not only two sons called Jodha Singh and Jai Singh,
but a third son named Pohlo, and that from the mere fact that the two sons
enjoyed the land in equal shares, no presumption could arise that the property
was ancestral and descended by inheritance from the common ancestor, when
nothing was known about the share of the third son. He recorded findings in
favour of the plaintiff on the issues as to adoption and limitation, but he
also held that the plaintiff had no locus standi to contest the validity of the
adoption as the period of limitation 261 had expired long before he was born.
In the result, the suit was dismissed.
The plaintiff preferred an appeal to the
court of the District Judge. He filed an application under Order XLI, rule'27,
and section 151, Civil Procedure Code, for leave to adduce additional evidence.
The document he wanted to be taken on record and considered, and of which it
was alleged that he was not aware at the trial, was a kami beshi statement
relating' to Mauza Pattar Kalam, which contained a note that the third son,
Pohlo, gave up his interest in the ancestral property in favour of his
brothers. A copy of the statement was filed along with the appeal memorandum.
The application was naturally opposed on behalf of the contesting defendants
who urged that the plaintiff appellant had ample opportunity to produce all his
evidence in the lower court to prove that the property was ancestral and that
the entry on which reliance was now sought to be placed appeared on the face of
it to be a forged one. The District Judge posted the application to be heard
along with the appeal itself. On the 17th March 1942, that is, even before he
heard the appeal, the District Judge allowed the application. Referring to the
two entries found in the naqsha kami beshi prepared in 1849-50 and the
muntakhib asami-war prepared in 1852, which stated that Pohlo had relinquished
his ancestral share, he observed: "These two entries taken together, if
found genuine, would enable the Court to arrive at a just conclusion. It is,
therefore, in the interest of justice that the additional evidence should be
let in. I have taken action under Order XLI, rule 27 (1) (b), of the Civil
Procedure Code. This additional evidence would supply material to remove the
defect pointed out in the judgment of the court below, why two of the sons of
Sehja Singh came to own equal shares of land of Pattar Kalan in the presence of
their 3rd brother". He permitted the parties to call evidence relating to
the two documents. Two witnesses were examined on the side of the appellant.
Munshi Pirthi Nath is the clerk in the D.C's office, Jullundur City, and he
brought the 262 record of rights for the village Pattar Kalan prepared at the
time of the settlement of 1849-50. Munshi Niaz Ahmad is the office Qanungo in
the Jullundur Tahsil and he brought the rauntakhib asami-war of the record of
rights preserved at the Tahsil Office. Both of them gave evidence about the
relevant entries found in the registers.
The District Judge reversed the decision of
the Subordinate Judge and decreed the plaintiff's suit on the strength of this
additional evidence. He held that the entries relied on for the appellant were
genuine and not forged and that as Pohlo had relinquished his share, the land
in Manza Pattar Kalan was ancestral qua the plaintiff. He further found that
the suit was not barred and was within time under article 120 of the Indian
Limitation Act, but that the adoption set up by the second defendant was not true.
As the custom of the district did not permit a proprietor to will away any
portion of his property, whether ancestral or self-acquired, the plaintiff had,
in the opinion of the District Judge, a right to contest the will. On the basis
of these findings, he decreed the plaintiff's suit in its entirety, including
the lands in the village of Kadduwal which were conceded to be nonancestral and
also an area of 4 bighas and 16 biswas of land in Pattar Kalan which, according
to the record of rights, was not in the possession of Jodha Singh and Jai
Singh, but with third parties.
Kartar Singh, the second defendant, took the
matter on second appeal to the High Court. The learned Judges of the High Court
held that there was nothing to show that the land in Pattar Kalan was ancestral
and that the District Judge was not justified in admitting additional evidence
in the shape of the nabsha kami beshi and the muntakhib asami-war records. They
further pointed out that even a superficial observation of the original documents
led one irresistibly to the conclusion that the entry regarding Pohlo giving up
his share was a subsequent interpolation. They came to the conclusion,
therefore, that the entire land situated in Pattar Kalan 263 was also
non-ancestral and that the suit should have been dismissed in to, inasmuch as
under section 7 of Act II of 1920, no person is empowered to contest any
alienation of non-ancestral immoveable property on the ground that such
alienation is contrary to custom. In view of this finding, no other question
arose in the case for decision.
Leave was, however, granted to appeal to His
Majesty in Council and this is how this appeal is now before us.
It was strenuously argued by the learned
counsel for the appellant that it was not open to the High Court to interfere
with the discretion exercised by the District Judge in allowing additional
evidence to be adduced and that even assuming that there was an erroneous
finding of fact, it must stand final as a second appeal can be entertained only
on the specific grounds mentioned in section 100 of the Civil Procedure Code.
There is, however, a fallacy underlying this argument. The discretion to
receive and admit additional evidence is not an arbitrary one, but is a judicial
one circumscribed by the limitations specified in Order XLI, rule 27, of the
Civil Procedure Code. If the additional evidence was allowed to be adduced
contrary to the principles governing the reception of such evidence, it would
be a case of improper exercise of discretion. and the additional evidence so
brought on the record will have to be ignored and the case decided as if it was
non-existent. Under Order XLI, rule 27, it is the appellate court that must
require the evidence to enable it to pronounce judgment. As laid down by the
Privy Council in the well-known case of Kessowji Issur v.G. I. P. Railway(1)'
"the legitimate occasion for the application of the present rule is when
on examining the evidence as ii stands, some inherent lacuna or defect becomes
apparent, not where a discovery is made, outside the court, of fresh evidence
and the application is made to import it;" and they reiterated this view
in stronger terms even in the later case of Parsotim v. Lal Mohan (2). The true
test, there fore, is whether the appellate court is able to pronounce (1) 34 I.
A. 115 (2) 58 I. A. 254 264 judgment on the materials before it without taking
into consideration the additional evidence sought to be adduced.
In the present case, there is nothing to show
that there was any lacuna or gap which had to be filled up and that the
appellate court felt the need for the omission being supplied so that it could
pronounce a judgment; to put it the other way round, it does not appear, and it
was not stated, that the District Judge felt himself unable to come to a
decision without copies of the settlement registers that were sought to be put
in before him for the first time. On the other hand, the District Judge made up
his mind to admit the certified copies of the kami beshi and muntakhib asamiwar
registers even before he heard the appeal. The order allowing the appellant to
call the additional evidence is dated 17th March, 1942. The appeal was heard on
24th April, 1942. There was thus no examination of the evidence on the record
and a decision reached that the evidence as it stood disclosed a lacuna which
the court required to be filled up for pronouncing its judgment. In the
circumstances, the learned Judges of the High Court were right in holding that
the District Judge was not justified in admitting this evidence under Order
XLI, rule 27.
Even conceding that the reception of
additional evidence was proper, the District Judge has failed to consider the
inherent infirmities of the entries in the settlement registers relied on. for
the appellant and the several criticisms that could justly be levelled against
them for showing that they were spurious. He took the entries to be genuine.
The only reason assigned by the learned Judge for treating the entries to be
genuine and not forged appears to be that the records had all along remained in
proper custody. As against this rather perfunctory remark we must set the
following observations of the learned Judges of the High Court:
"Even a superficial observation of the
original documents leads one irresistibly to the conclusion that this entry was
a subsequent interpolation. In 265 naqsha kami beshi there was alrerady a
remark in that column and the remark relied upon which has very awkwardly been
inserted there is with a different pen and in a different ink. It is even
impossible to read it clearly. Further, although there are 2 or 3 other places
where the names of Jodha and Jai Singh appear, no such remark has been made
against them. It may also be observed that though a corresponding remark
appears in the column of sharah lagan in muntakhib asami-war where it is
evidently out of place in the copy retained in the Tahsil Office, there is no
such remark in the copy which is preserved at the Sadar Office.
Even otherwise it does not stand to reason
why a remark to this effect should have been made in this column. The way in
which these entries were said to have been traced also throws a lot of
suspicion on their genuineness." We find ourselves in entire agreement
with these observations of the learned Judges. It is no doubt true that a
finding of fact, however erroneous, cannot be challenged in a second appeal,
but a finding reached on the basis of additional evidence which ought not to
have been admitted and without any consideration whatever of the intrinsic and
palpable defects in the nature of the entries themselves which raise serious
doubts about their genuineness, cannot be accepted as a finding that is
conclusive in second appeal.
If the additional evidence is left out of
account, the appellant has practically no legs to stand on. There is nothing to
show that the common ancestor Sehja Singh was possessed of the Mauza Pattar
Kalan properties which are found subsequently entered in the name of two sons
in equal shares, with nothing said about the share of the third son Pholo. As a
matter of fact, the pedigree table shows that there was a fourth son called
Hamira. If the property had been entered in the registers in the names of all
the sons in equal shares, there might be some ground, however feeble, for
presuming that the property was ancestral as alleged by the plaintiff. There is
nothing to show 266 that the common ancestor owned the land and that his sons
got it from him by inheritance in equal shares.
The District Judge was obviously wrong when
he decreed the plaintiff's suit even with reference to the lands in Kadduwal
conceded to be non-ancestral and the land in Khasra No. 2408 measuring 4 big has
and 16 bis was, which was not in the possession of the two sons Jodha Singh and
Jai Singh. He was equally wrong in holding that the customary law which
governed the parties did not permit the owner to will away any portion of the
property, whether ancestral or self-acquired; this is contrary to section 7 of
Punjab Act II of 1920, which is in these terms:
"Notwithstanding anything to the
contrary contained in section 5, Punjab Laws Act, 1872, no person shall contest
any alienation of non-ancestral immovable property or any appointment of an
heir to such property on the ground that such alienation or appointment is
contrary to custom." No other point arises in this appeal which fails and
is dismissed with costs in all the courts.
Agent for the appellant: Ganpat Rai.
Agent for the respondents: S.P. Varma.