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  • Suhrawardy
  • Cuming, JJ.
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  • Cuming, JJ.
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Smart Summary

Case Summary — Extracted from the Provided Opinion

Factual and Procedural Background

This appeal arises from a suit for recovery of possession of certain properties described in the plaint and for establishment of the plaintiff’s title to those properties. The trial Court (Court of first instance) issued a partial decree: it declared the taluka right of plaintiffs 1 and 2 in a four annas share of the lands described as property No. 1 in the plaint, and declared an osat raiyati title of the plaintiffs to an eleven annas four gondas share of property No. 2, while dismissing the plaintiffs’ claims in respect of the remainder of the properties.

On appeal, the lower Appellate Court modified the first Court’s decree by declaring the plaintiffs’ jote right under defendants Nos. 1, 2 and 4 in property No. 1 and granting the plaintiffs a decree for khas possession of that property; in other respects the appellate court upheld the first-instance decree. Several objections were taken to the findings of the lower Appellate Court; the opinion identifies particular points requiring serious consideration, including the presumption of jointness of property, admissibility of certain mortgage bonds (Exs. A and B), and a technical correction to the decree as to which plots of property No. 1 the plaintiffs’ jote right relates to.

Legal Issues Presented

  1. Whether, given that the family was joint and Ramsunder with his seven surviving sons (including Kashinath) were living in joint mess, the property standing in the name of Kashinath should be presumed joint family property (requiring defendants to prove it was purchased from Kashinath's separate funds), particularly in the context of the Dayabhaga school of Hindu law.
  2. Whether two mortgage bonds (Exs. A and B), executed by Kashinath and his widow and proved by identification of signatures (without calling attesting witnesses), were admissible in evidence in view of Section 59 of the Transfer of Property Act and Section 68 of the Indian Evidence Act, and if any exception (e.g., Section 70 Evidence Act) applied.
  3. Whether a party may challenge the admissibility of documents on appeal which were admitted without objection in the trial Court, where the admission contravened an imperative statutory rule of proof.
  4. Whether the decree of the lower Appellate Court should be modified to limit the declaration of the plaintiffs’ jote right and grant of khas possession to specific plots (Nos. 1, 2 and 3) of property No. 1 rather than to the whole property No. 1.

Arguments of the Parties

Appellant's Arguments

  • The appellants contended that because the family was governed by the Dayabhaga school of Hindu law, the presumption that property standing in the name of a son (Kashinath) was joint property should not have been raised; the defendants should have borne the burden of proving the property was purchased from Kashinath’s separate funds.
  • The appellants argued that the strict proof requirement of Section 68 of the Evidence Act should apply only where an attested document is used to prove the legal right or relation it creates; where the document is offered for a collateral purpose, it can be proved by the ordinary method for proving documents.
  • The appellants asserted that because the mortgage bonds had been admitted without objection in the first Court, the plaintiffs should not be permitted to object to their admissibility on appeal.

Other Party / Respondent Arguments (as reflected in the opinion)

  • The documents (Exs. A and B), executed by Kashinath and his widow, were relied upon to show statements that the executants had not created subordinate interests or encumbrances in the mortgaged properties; these statements were tendered in evidence by identifying the executants’ signatures rather than calling attesting witnesses.
  • At trial, evidence was adduced on both sides regarding the acquisition and nature of the property, and the trial Judge based findings on examination of that oral and documentary evidence.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Krishna Kisor De v. Nagendra Bala Supports the proposition that when both parties have adduced evidence, a Court (particularly at the appellate stage) may shift the burden of proof from one party to the other in light of the evidence. The Court relied on this authority to uphold the trial Judge’s treatment of onus — i.e., that it was permissible, after examining oral evidence, to demand proof from defendants that the property was purchased from Kashinath’s personal funds.
Manners v. Pastan Holds that the rule (as codified in Section 68 Evidence Act) requiring production of an attesting witness is not confined to cases where the attested instrument is the ground of action but applies equally when the instrument is used for collateral purposes. The Court cited this case to support the view that Section 68’s requirement is absolute and extends to collateral uses of attested instruments, reinforcing the position that attesting witnesses must be called.
Tofaluddi Peada v. Makar Ali Instances where a mortgage-deed not attested in the required manner was treated as a simple money bond and used to enforce a personal covenant, i.e., treated for what it effectively proved when not differing from a money bond. The Court explained these authorities did not support the appellants here because in those cases the deeds were not attested in accordance with Section 59 of the Transfer of Property Act and were therefore not regarded as proper mortgage bonds but as simple bonds; they did not establish that a properly attested mortgage bond, imperfectly proved, could be used as evidence for a collateral purpose.
Skamu Patter v. Abdul Kader / Shamu Patter v. Abdul Kadir Supports the contrary position that an attested mortgage deed cannot be treated as a mere bond for enforcing personal obligations when it has not been proved in accordance with the statutory rules (discussed in Madras High Court and taken to the Privy Council). The Court relied on the outcome and reasoning of these decisions to indicate authority against admitting a properly attested mortgage bond without proof by attesting witnesses for collateral enforcement.
Harek Chand v. Biskan Chandra Establishes that where evidence is admitted without objection in contravention of an imperative statutory rule, principles such as acquiescence, waiver or estoppel (which might justify later acceptance) cannot be invoked to validate such admission. The Court invoked this authority to support its conclusion that the mortgage bonds could be rejected even if they had been admitted without objection at the trial stage, because the relevant statutory proof provisions are mandatory.

Court's Reasoning and Analysis

The Court examined the case under the main heads identified in the appeal and proceeded to analyse the legal and evidentiary questions strictly on the basis of the trial record and applicable statutory provisions.

On the question of presumption of joint family property and burden of proof: The trial Judge found, after assessing oral evidence, that the property had been purchased in the name of Kashinath because he was the ablest and most intelligent of Ramsunder’s sons. On that basis the trial Judge required proof from the defendants that the property was purchased from Kashinath’s personal funds. The appellate Court’s finding that the property must be treated as joint family property unless the defendants established a separate fund for Kashinath was sustained. The opinion emphasises that when both parties adduce evidence, a Court (particularly on appeal) may shift the burden of proof on the basis of that evidence; the Court relied on Krishna Kisor De v. Nagendra Bala to support this principle and held the lower Court's finding to be based on a proper consideration of the evidence and therefore unassailable in second appeal.

On admissibility and proof of the mortgage bonds (Exs. A and B): The bonds were executed by Kashinath and his widow and contained statements that mortgagors had not created subordinate interests in the properties. These documents were proved not by calling attesting witnesses but by evidence identifying the signatures of the executants. The Court analysed the statutory requirements: Section 59 of the Transfer of Property Act requires a mortgage-deed to be attested by two witnesses; Section 68 of the Indian Evidence Act mandates that where a document is required by law to be attested, it cannot be used in evidence until at least one attesting witness has been called (if such a witness is alive and subject to process). The Court observed there was no proof that attesting witnesses were unavailable; therefore Section 68 had not been complied with and the documents were not legally proved.

The appellants’ contention that Section 68’s strict mode of proof should be relaxed when the document is used for a collateral purpose was rejected. The Court held Section 68 to be imperative and not admitting relaxation except where the statute itself provides (noting Sections 69, 70 and 71 as the only statutory exceptions). The Court drew on the English law on the point (as explained in Taylor on Evidence) and cited Manners v. Pastan to underscore that the rule applies even when the attested instrument is used for collateral purposes. The Court further considered authorities where un-attested deeds were treated as simple money bonds (e.g., Tofaluddi Peada) but distinguished them: in those cases the deed was not attested as required by Section 59 and hence could be treated differently; those cases did not support admitting a properly attested mortgage bond that had not been proved under Section 68. The Court also referenced decisions (Skamu/Shamu Patter) that support the view that such a document cannot be used as a bond without proper proof.

On the effect of admission without objection at trial: The Court addressed the contention that a party who did not object to admissibility at trial cannot challenge it on appeal. It emphasised that where evidence was received in direct contravention of an imperative provision of law, principles of acquiescence, waiver or estoppel cannot validate the irregular admission. The Court relied on Harek Chand v. Biskan Chandra to hold that the mortgage bonds could be rejected despite any earlier admission at trial.

On modification of the decree as to extent of khas possession: The appellate decree had granted khas possession of the lands of property No. 1 stating a "10 annas jote share." The Court found the plaintiffs had claimed jote rights only in plots Nos. 1, 2 and 3 of property No. 1 (not in the whole property). Accordingly, the Court ordered that the plaintiffs’ jote right be declared and khas possession granted only in plots Nos. 1, 2 and 3 of property No. 1, and modified the appellate decree accordingly.

Holding and Implications

Holding: The appeal is DISMISSED. The decree of the lower Appellate Court is affirmed subject to the modification that the plaintiffs’ jote right and the grant of khas possession relate only to plots Nos. 1, 2 and 3 of property No. 1 rather than to the whole of property No. 1. The mortgage bonds (Exs. A and B) were not legally proved and were rejected. The appeal is dismissed with costs.

Implications: The direct consequences are:

  • The plaintiffs’ jote right is declared and khas possession is granted only in plots Nos. 1, 2 and 3 of property No. 1 (not the entire property No. 1).
  • The mortgage bonds relied upon were held not to be legally proved because the attesting witnesses were not called and no statutory exception applied; they were therefore excluded from evidence.
  • The appellate decree is otherwise affirmed and the appeal is dismissed with costs.

The opinion does not purport to lay down a novel precedent; it applies established statutory provisions (Sections of the Transfer of Property Act and the Indian Evidence Act) and prior authorities to the facts of this case and states the direct effects on the parties.

Show full summary ...

    Shib Chandra Singha And Others v. Gour Chandra Paul And Others

    1. This appeal arises out of a suit for the recovery of possession of certain properties described in the plaint and establishment of the plaintiff's title thereto. The facts of the case which are rather complicated are fully set out in the judgment of the lower Appellate Court. The Court of first instance gave the plaintiffs a partial decree by declaring the taluka right of plaintiffs 1 and 2 in four annas share of the lands described as property No. 1 in the plaint and the osat raiyati title of the plaintiffs to eleven annas four gondas share of property No. 2, and dismissed the plaintiffs claim with regard to the rest of the properties in suit. On appeal the lower Appellate Court modified the decree of the first Court by declaring plaintiff's jote right under defendants Nos. 1, 2 and 4 in property No. 1 and granting them a decree for khas possession of that property and in other respects upheld the decree of the first Court. Several objections have been-taken to the findings of the lower Appellate Court, some of which in our opinion do not stand scrutiny. The points that require serious consideration are:

    (1) That the Court of Appeal below has erred in holding that the family being joint and Ramsunder with his seven surviving sons including Kashinath living in joint mess, the property must be said to be the joint properties of all, that the defendants must show that Kashinath had a separate fund of his own from which he acquired this property, and that hence the presumption is that it was joint property of the joint Hindu family of Ramsunder and his sons. It is argued that as the family was one governed by the Dayabhaga School of the Hindu Law, such presumption ought not to have been raised and the burden cast upon the defendants to prove that the property was purchased with the funds of Kashinath in whose name it stood. It is clear from the perusal of the judgment that the learned District Judge on an examination of the oral evidence has found that the property was purchased in the name of Kashinath, as he was the ablest and most intelligent of Ramsunder's sons, and in consideration of the facts and circumstances of the case he has demanded proof from the defendants that the property was purchased by Kashinath out of his personal fund. The question of onus loses its importance when both parties have adduced evidence in support of their respective cases, and the Court on an examination of such evidence shifts the burden of proof from one party to the other. This must be more so at the appellate stage. Krishna Kisor De v. Nagendra Bala(1). The finding of the learned Judge is based on a consideration of the evidence in the case and is unassailable in second appeal.

    2. The second point is of some importance. The Court of first instance admitted in evidence two mortgage bonds Exs. A and B without objection by the plaintiffs.

    3. These documents were executed by Kashinath and his widow defendant No. 4, in which it is stated that the mortgagors had not created any subordinate interest or encumbered the property in suit which they mortgaged by those deeds. The documents were proved not by any attesting witness to them, but by evidence of persons who identified the signatures of the executants. The plaintiff's claim, in this suit, jetes created by Kashinath under his taluka right in property No. 1. It was attempted to show by these documents that some time ago, i.e, in 1900 and 1912 Kashinath and his widow made statements to the effect that they had not created any such subordinate interest in the property. Considering the circumstances under which these statements were made it is doubtful if these admissions are admissible in evidence under Section 13 of the Evidence Act in favour of the persons who made them or those claiming under such persons. But in view of our decision as to the documents having been legally proved it is not necessary to discuss the matter further.

    4. Section 59 of the Transfer of Property Act requires a mortgage-deed to be attested by two witnesses and Section 68 of the Indian Evidence Act enacts as follows:—

    “If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be “an attesting witness alive and subject to the process of the Court and capable of giving evidence.” The only exception to this imperative rule is laid down in Section 70 of the Evidence Act to the effect that the admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him. In the present case there is no proof that there is no attesting witness to these documents alive are available. In the circumstances it is evident that the provision of Section 68 of the Evidence Act has not been complied with and the documents not legally proved. It is contended for the appellant that the strict mode of proof prescribed in Section 68 of the Evidence Act applies only to cases where the document is attempted to be enforced to prove the legal right or relation it creates. But in a case where such document is sought to be proved for a collateral purpose, it may be proved by the ordinary law laid down for proof of a document as a piece of evidence. We do not think we should give effect to this contention. The law as laid down in S. 68 is imperative and does not on the face of it admit of any relaxation except in the cases provided for in Sections 69, 70 and 71 of the Evidence Act. Section 68 of the Evidence Act is based on the English Law on the point which is thus stated. Taylor on Evidence, 11th Edition, p. 1230, S. 1843.

    “The general rule which requires the production of an attesting witness, when the validity of an Instrument depends upon its formal attestation, is so inexorable that it applies even to a cancelled or a burnt deed, as also to one, the execution of which is admitted by the party to it and that too though such admission be deliberately made, either in open Court or in a subsequent agreement or even in a sworn answer to interrogatories delivered to the party in the cause. A party in a cause who is called as a witness by his opponent cannot be required to prove the execution by himself of an instrument, to the validity of which attestation is requisite, so long as the attesting witness is capable of being called.”

    5. So also the attesting witness must be called though subsequently to the execution of the deed he has become blind, and the Court will not dispense with his presence on account of illness, however severe. If the indisposition of the witness be of long standing the party requiring his evidence should have applied for power to examine him before a Commissioner or Examiner, and if he be taken suddenly ill a motion must be made to postpone the trial.

    6. S. 1844, p. 1231:— “The rule is equally applicable, whatever be the purpose for which the instrument is produced.”

    7. This statement of the law found judicial recognition in the case of Manners v. Pastan(2), in which Lord Alvonley clearly laid down that the rule of law (as codified in Section 68 of the Indian Evidence Act) is not confined to cases where the attested instrument was the ground of action, but that it applied also to cases where it was used in evidence for collateral purposes. This view is also supported by the imperative and stringent wording of S. 68 which does not permit the issue of the instrument as evidence for any purpose whatsoever unless and until it is proved in strict accordance with the provisions of the section. The rigor of the English Law on which the present section is founded has been to a certain extent lessened by the proviso as contained in Section 70 of the Evidence Act. The enactment of this proviso, to our mind, clearly indicates that Indian Legislature intended to provide only one exception to this inflexible rule and no other.

    8. It has been argued on the authority of Tofaluddi Peada v. Makar Ali(3), and other cases of this and other High Courts that a mortgage-deed though not enforcible as such has been used as evidence and proved in the ordinary way to enforce a personal covenant to pay. In all these cases the bond was not attested in accordance with Section 59 of the Transfer of Property Act and hence it was not treated as a mortgage bond but given effect to as a simple money bond. These cases therefore do not support the position taken by the appellants. We have not been referred to any case where a mortgage bond properly attested, though not proved in conformity with Section 65 of the Evidence Act, was received in evidence to prove the personal obligation created thereby. For the contrary view we have authority of the case of Skamu Patter v. Abdul Kader(4). The case was taken to the Privy Council which affirmed the decision of the Madras High Court in Shamu Patter v. Abdul Kadir(5). The point whether such a document could be used as a bond was negatived by the Madras High Court; if was urged by counsel for the appellant at the bar of the Privy Council but was presumably not pressed, and there is no direct finding of the Judicial Committee on this question though the dismissal of the suit indicates that in their Lordships' opinion there was no ground on which the plaintiff in that case was entitled to any relief. It is further noticeable that in these cases the deed in suit was admitted by the executents and the contesting defendants in the pleadings, which fact assumes importance with reference to the next question raised before us by the appellants.

    9. It is further argued in this connection that the plaintiffs were not competent to abject to the admissibility of the mortgage bonds in the Court of Appeal below as they were admitted without objection in the first Court. It is not clear from the judgment of the lower Appellate Court whether the documents were rejecter by it suo motu or on the objection of the respondents. We are not unmindful of the cases in which it has been laid down that where a piece of evidence not proved in the proper manner has been admitted without objection, it is not open to the opposite party to challenge it at a later stage of the litigation. But where evidence has been received without objection in direct contravention of an imperative provision of the law, the principle on which unobjected evidence is admitted, be it acquiescence, waiver or estoppel none of which is available against a positive legislative enactment, does not apply. See Harek Chand v. Biskan Chandra(6). In the present case the law has laid down an inflexible rule of proof which cannot be deviated from except as provided in the Act. If the legislature had intended to modify the stringency of the English law so far as to make an instrument not proved in accordance with the provisions of Section 68 of the Evidence Act admissible when not objected to by the other party, one would have expected a proviso to that effect similar to Section 70 of the Evidence Act. In our opinion the enactment of S. 70 lends considerable colour to the supposition that the legislature desired to add no further exception to the law laying down the special method of proof of instruments required by law to be attested. We accordingly hold that the mortgage bonds were rightly rejected by the learned Judge.

    10. We may observe that the bonds even if admitted would have apparently afforded evidence of the weakest character, and the Munsif who decided the case in favour of the defendants, did not even refer to them in his elaborate judgment.

    11. The decree of the lower Appellate Court requires slight modification in that it has decreed to the plaintiffs “khas possession of the lands of property No. 1 in that 10 annas jote share.” The plaintiffs claimed that their jote right in plots 1, 2 and 3 of property No. 1 and not in the whole of that property. The plaintiff's jote right will therefore be declared in and Mas possession granted to them of plots Nos. 1, 2 and 3 only of property No. 1. With this variation the decree of the Court of appeal below is affirmed and this appeal dismissed with costs.

    12. Appeal dismissed.

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    Shib Chandra Singha And Others v. Gour Chandra Paul And Others
    (Feb 10, 1922)