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Case Number

Appeal from Appellate Decree No. 2674 of 1923

Attorney(S)

Babu Surendra Nath Ghosal for the Appellants.
Dr. Bijan Kumar Mukherji (for Babu Panchanan Ghosh) for the Respondent.

Judges

Greaves
Mukerji, JJ.

Acts

provisions of sec. 68 and sec. 90 of the Evidence Act.
provisions of sec. 20 of the Limitation Act
provisions of sec. 90 of the Evidence Act
USURIOUS LOANS ACT
sec. 90 of the Indian Evidence Act,
Art. 75 of the Limitation Act
sec. 20 of the Limitation Act
sec. 90 of the Evidence Act,
sec. 68 of the Evidence Act

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Smart Summary

Court Opinion Summary (Mukerji, J.)

Factual and Procedural Background

This appeal arises from a suit for sale based on a simple instalment mortgage bond executed on 21 June 1885 by Defendants Nos. 1 to 6 (or their predecessors) in favour of the plaintiffs' father. The bond promised payment of 191 maps of paddy at 7 maps per annum from 1293 to 1316 B.S., with the remaining 5 maps due in 1317 B.S. The bond provided that upon payment of any one instalment the mortgagee would be entitled to realize the whole remaining paddy due with interest.

On 7 June 1901 the mortgagors executed another mortgage bond over the same properties in favour of the plaintiffs' mother. The plaintiffs' mother sued on that latter bond, obtained a decree, and in execution of that decree the mortgaged properties were sold and purchased by Defendant No. 7. The plaintiffs allege that instalments due for 1316 and 1317 were not paid, and in the present suit the plaintiffs sought enforcement of the earlier mortgage by sale for those dues. The suit was decreed by both courts below, and Defendants Nos. 1 to 5 and 7 appealed.

Legal Issues Presented

Whether the plaintiffs are estopped from enforcing the earlier mortgage because that mortgage was not set out in the suit instituted by the plaintiffs' mother (estoppel by omission under Order 34, r. 12, C.P.C.).
Whether the deed (the 1885 mortgage bond) was legally proved in view of sections 68 and 90 of the Evidence Act (i.e., whether the mandatory proof requirements of sec. 68 were complied with and whether sec. 90's presumption of genuineness could be applied).
Whether Defendant No. 7 is a benamdar for the other defendants, and whether the court should have framed a specific issue on that point or admitted evidence to show he was not a benamdar.
Whether Defendant No. 7 acquired title by adverse possession sufficient to defeat the plaintiffs' claim.
Whether limitation bars the plaintiffs' suit, specifically whether Article 75 or Article 132 of the Limitation Act applies and whether reliance on section 20 of the Limitation Act was required.
Whether the transaction is void under the Usurious Loans Act or whether that Act is inapplicable by operation of section 2 of the Act.

Arguments of the Parties

Appellants' Arguments

The plaintiffs are estopped from enforcing the earlier mortgage because that mortgage was not set out in the plaintiffs' mother's suit; under Order 34, r. 12, C.P.C., it was incumbent to set it out.
The 1885 bond has not been legally proved: section 68 of the Evidence Act (mandatory proof of execution and attestation) was not complied with, and section 90 has been misapplied.
Defendant No. 7 should have had a specific issue on whether he was a benamdar for the other defendants; evidence relied upon for Defendant No. 7 was improperly included to show he was not a benamdar.
Defendant No. 7 acquired title by adverse possession and can therefore resist the plaintiffs' claim.
The plaintiffs' claim is time-barred; Article 75 of the Limitation Act allegedly applies and plaintiffs should have relied on section 20 to save limitation.
The transaction is tainted by usury under the Usurious Loans Act and should not be enforced by the court.

Respondents' (Plaintiffs') Arguments / Court's Statements of Plaintiffs' Position

The plaintiffs' mother was not the benamdar of the plaintiffs' father; the father was not a party to the mother's suit, so it was not obligatory for the mother's suit to set out the earlier mortgage.
As to proof, the plaintiffs asserted that the sole surviving attesting witness (Baikuntha Nath Saha) was hostile and that efforts were made to produce him; the courts below relied upon the presumption under section 90 of the Evidence Act because the document was over 30 years old.
The plaintiffs relied on findings that payments of overdue instalments had been made and accepted by the plaintiffs, constituting waiver of default; the trial court accepted evidence of payments and found waiver.
The Usurious Loans Act is inapplicable by reason of section 2 of that Act.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Sudhanya Kumar Singha v. Gour Chandra Pal	That sec. 68 of the Evidence Act is imperative and applies to attested instruments, including collateral use.	The Court observed that this decision does not assist the appellants beyond confirming sec. 68's mandatory character; it does not resolve the present factual question of whether processes to secure witness attendance had been exhausted.
Tula Sing v. Gopal Singh	Held that a party's claim that an attesting witness is hostile does not absolve the party from the duty to examine the witness under sec. 68; surviving hostile witness must nonetheless be examined.	The Court relied on the principle to indicate that the plaintiffs' duty to examine the surviving attesting witness had not been shown to have been discharged.
Piyari Sundari v. Radhakrishna	Summonses and warrants alone are not enough to comply with sec. 68; the court processes (e.g., those in Or. 16, r. 10 C.P.C.) must be exhausted.	The Court cited this decision to conclude that there was no evidence that the plaintiffs had exhausted the prescribed court processes to secure the witness's attendance, supporting a prima facie ground for remand on sec. 68 grounds.
Shyarn Lal Ghose v. Rameswari Basu	Discussed whether sec. 90 presumption can be applied to the proof of a Will; observed that the rule need not apply to probate courts and that sec. 90 allows the Court discretion ("may presume").	The Court treated that observation as one of expediency rather than an absolute legal rule, and held that sec. 90 can be applied to documents forming the foundation of title when the case is fit for the presumption.
Shafiqunnissa v. Shaban Ali Khan (Judicial Committee)	Explained meaning of "Court may presume" under sec. 90 by reference to sec. 4 of the Evidence Act: the Court may treat the presumed fact as proved unless disproved or may call for proof.	The Court relied on this exposition to justify cautious application of the sec. 90 presumption and to explain how the presumption operates.
Trailakhsya Nath Nandi v. Shurno Ghungoni	Example of sec. 90 being applied to documents upon which a party's title rested.	The Court cited this case as part of authority showing that sec. 90 has been applied to title documents in several decisions.
Gobinda Hazra v. Pratap Narain Mukhopadhaya	Held that if no reasonable grounds exist for suspecting genuineness and a document satisfies sec. 90 conditions, proof of execution is dispensed with and the ancient document is treated as genuine; conversely, if reasonable grounds for suspicion exist and execution is not satisfactorily proved, the presumption cannot save it.	The Court quoted observations from this case (including those of Mr. Justice Hill) to support the proposition that sec. 90 may apply to documents forming title absent reasonable grounds of suspicion.

Court's Reasoning and Analysis

The Court addressed each contention in turn and applied the governing legal principles to the facts found by the courts below.

1. Estoppel (omission from prior suit): The Court accepted the lower courts' finding that the plaintiffs' mother was not the benamdar of the plaintiffs' father and that the father was not a party to the mother's suit. Because the father was not a party, it was not obligatory for the mother's suit to have set out the earlier mortgage. The Court therefore held that, absent proof of a duty on the part of the mother (or her agent) to set out the earlier mortgage, the estoppel argument did not arise. A further defence alleging that the father's conduct misled Defendant No. 7 into buying was foreshadowed in pleadings but not developed in the courts below and lacked supporting materials on record; accordingly it could not be pressed successfully on appeal.

2. Proof under sec. 68 and sec. 90, Evidence Act:

The Court reiterated that sec. 68 is mandatory in requiring the production and examination of attesting witnesses for attested instruments. The bond bore signatures of nine attesting witnesses, of whom only one (Baikuntha Nath Saha) survived according to the lower courts' findings. The plaintiffs alleged attempts to produce this witness and that he was hostile, but the learned Munsif did not record the specific endeavours to secure the witness's attendance.
The Court cited authority that the mere assertion of hostility is insufficient to avoid the duty to examine the surviving witness and that processes beyond simple summonses and warrants (i.e., those specified in the Procedural Code such as Or. 16, r. 10) must be exhausted. On the record before it, the Court observed that such processes did not appear to have been exhausted and that, prima facie, this would entitle the appellants to a remand on sec. 68 grounds.
However, the Court considered sec. 90 as well. It reviewed precedent and concluded that sec. 90's presumption (for documents older than 30 years) may, in a proper case, be applied even where the document forms the foundation of a party's title — subject to the condition that no reasonable grounds exist for suspecting genuineness. The Court found that the lower courts were not wrong in relying upon the sec. 90 presumption in the circumstances of this case.
Although an affidavit before the appellate Court stated that the surviving witness was now dead and appellants complained they had no notice to contradict that affidavit, the Court considered that if the case were remanded and the witness (if still alive) were examined, his testimony would either be hostile (allowing sec. 90 to be relied upon) or favourable (strengthening the plaintiffs). Therefore the Court concluded that a remand would not serve any useful purpose in view of its other conclusions.

3. Benami / Adverse possession (Defendant No. 7): The Court treated the benami question as of minor importance. It noted that no distinct issue on this question had been framed at the time of framing issues and relied upon the trial judge's findings that, despite Defendant No. 7's purchase, the other defendants remained in possession of the mortgaged properties. On these facts the Court found no valid ground of complaint by Defendant No. 7.

4. Limitation: The Court held that the correct article to apply was Article 132 of the Limitation Act, not Article 75, and that the plaintiffs did not need to rely upon section 20 to save limitation. Independently of any endorsement on the document, the trial judge had found payments of overdue instalments and acceptance thereof by the plaintiffs, constituting waiver of default. Those findings supported the plaintiffs' claim and defeated the appellants' limitation contention.

5. Usurious Loans Act: The Court observed that the appellants' contention ignored section 2 of the Usurious Loans Act, which (per the Court's statement) makes the Act inapplicable to the transaction in question. Hence the argument based on the Usurious Loans Act failed.

Having considered all grounds, the Court observed that the only contention that might have warranted remand was the sec. 68 issue (failure to properly produce/examine the surviving attesting witness). But because examination of that witness (if alive) could either confirm hostility (leaving sec. 90 available) or support the plaintiffs (strengthening their case), the Court concluded remand would not alter the result arrived at by applying the other legal principles and findings already recorded.

Holding and Implications

APPEAL DISMISSED WITH COSTS.

Implications:

Direct effect: The decree granted in favour of the plaintiffs below (ordering enforcement of the mortgage and sale for the instalments due) stands; the appellants (Defendants Nos. 1–5 and 7) are not successful on appeal and must pay costs.
On procedural and evidentiary law: The Court applied existing authorities to confirm that sec. 90 of the Evidence Act may be relied upon in appropriate cases even where the document is foundational to title, provided there are no reasonable grounds to suspect genuineness; but it also emphasized that sec. 68's requirements for producing attesting witnesses are mandatory and that adequate steps must be taken to secure their attendance. The Court did not purport to lay down a novel rule of law beyond applying and reconciling existing authorities.

This summary is prepared strictly from the content of the provided opinion and does not add facts or inferences beyond that text.

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Gobinda Chandra Pal v. Pulin Behary Banerji

The Judgment of the Court was as follows:—

Mukerji, J.:— This appeal arises out of a suit for sale based on a simple mortgage bond. The bond was executed by Defendants Nos. 1 to 6 or their predecessors in favour of the Plaintiffs' father on the 21st June 1885. It was an instalment mortgage bond by which the executants promised to pay 191 maps of paddy at the rate of 7 maps per annum from the year 1293 to 1316 B.S, and the balance of 5 maps in the year 1317 B.S The bond stipulated that in addition to the payment of any one instalment the mortgagee would be entitled forthwith to realize the whole of the paddy then remaining due with interest at a certain rate. Subsequent to the execution of this bond and on the 7th June 1901 the mortgagors executed another mortgage bond in respect of the same mortgaged properties in favour of the Plaintiffs' mother. The Plaintiffs' mother instituted a suit on the basis of ‘this latter bond, obtained a decree and in execution of that decree the mortgaged properties were put up to sale and purchased by the Defendant No. 7. The Plaintiffs' case is that the instalments due for 1316 and 1317 were not paid and in the present suit the Plaintiffs sought to enforce the mortgage by sale of the mortgaged properties for the said dues. The suit has been decreed by both the Courts below and the Defendants Nos. 1 to 5 and 7 have preferred the present appeal.

The first contention urged on behalf of the Appellants is to the effect that the Plaintiffs are estopped from enforcing their mortgage in the present suit because this mortgage was not set out in the suit instituted by the Plaintiffs' mother against the mortgagors. It is said that the Plaintiffs' father conducted the suit on behalf of the Plaintiffs' mother, and by reason of the provisions of Or. 34, r. 12, C.P.C, it was incumbent upon the Plaintiffs' mother in that suit to set out the mortgage upon which the present suit has been instituted, and that inasmuch as this mortgage was not set out in that suit the Plaintiffs are estopped from putting forward their present claim. The finding of the Courts below is to the effect that the Plaintiffs' mother was not the benamdar of the Plaintiffs' father. That was a suit in which the Plaintiffs' father was not a party. It was not obligatory upon the Plaintiffs' mother in that suit to have set out this mortgage. Unless it could be shown on behalf of the Appellants that there was a duty in the Plaintiffs' mother to have set out this mortgage either herself or through her agent who looked after the proceedings in that suit on her behalf, the question of estoppel does not really arise. A further argument was sought to be advanced with regard to this matter based on the lines upon which para. 7 of the written statement of the Defendants was worded, namely, it was alleged that by reason of the conduct of the Plaintiffs' father in connection with the suit to which I have referred the Defendant No. 7 was misled into purchasing the properties; in other words, that Plaintiffs' father who though not a party to those proceedings was actually doing everything therein on behalf of his wife and he did not mention either in the proceedings or in the sale proclamation that there was this prior mortgage, and by reason of his conduct in this respect the Defendant No. 7 was misled and he purchased under the idea that, there was no such mortgage. This line of defence though foreshadowed in the written statement does not appear to have been developed in any of the Courts below, and indeed there are no-materials upon the record upon which the Appellants can urge this contention.

The second ground urged is to the effect that the deed upon which the spit has been instituted has not been legally proved. This contention is based upon the provisions of sec. 68 and sec. 90 of the Evidence Act. It is urged on behalf of the Appellants that the provisions of sec. 68 which are mandatory have been overlooked and the provisions of sec. 90 have been misapplied. The bond in question bears the signatures of 9 attesting witnesses, all of whom, upon the findings of the Courts below, are dead with the exception of one, namely, one Baikuntha Nath Saha. It was alleged on behalf of the Plaintiffs that this witness who was alive was hostile to them, and it appears from the findings of the learned Munsif that an attempt was made on behalf of the Plaintiffs to produce the witness before the Court but that attempt had failed. The learned Judge does not appear to have recorded any finding with regard to the endeavours alleged to have been made by the Plaintiffs to secure the attendance of this witness. He has, however, observed that the witness was hostile to the Plaintiffs. The Courts below in this state of the circumstances relied upon the presumption contained in sec. 90 of the Evidence Act and have held that the document being more than 30 years old it should be presumed that it was duly executed by the executant and duly attested by the attesting witnesses. So far as the contention based upon sec. 68 of the Evidence Act is concerned, reference has been made to a decision of this Court in the case of Sudhanya Kumar Singha v. Gour Chandra Pal (1). This decision, however, is of no assistance to the Appellants inasmuch as all that has been said therein is that the section is imperative and it is not only applicable to cases where the attested instrument is the ground of action but also to cases where it is used in evidence for collateral purposes. No question arises in the present case as to whether the document may be used for collateral purposes or not. The wording of sec. 68, however, is very clear and the provisions of the section seem to be mandatory. The section does not appear to be controlled by sec. 90 of the Evidence Act at all. The mere fact that only the surviving attesting witness is considered hostile by the party does not relieve him from the duty of examining him as a witness, and this has been held in the case of Tula Sing v. Gopal Singh . Nor is it enough that summonses and warrants had been issued upon the witness and the witness had failed to appear; and it has been so held by this Court in the case of Piyari Sundari v. Radhakrishna . Merely taking out summons and warrants is not enough to comply with the provisions of sec. 68, but the processes of the Court such as are mentioned in Or. 16, r. 10, C.P.C, have all got to be exhausted. Upon the findings of the learned Judge to which I have referred it does not appear that such processes were exhausted in the present case, and primâ facie it would appear that on this ground the Appellants are entitled to a remand. An affidavit has been put forward before us on behalf of the Respondents in which it has been stated that the said witness Baikuntha Nath Saha is now dead. The Appellants urge that no notice of this affidavit was given to them and therefore they are not in a position to contradict the statement contained in that affidavit. As matters stand therefore the Appellants seem to be entitled to a remand. But in view of the opinion which I am about to express upon the other grounds that have been urged in support of this appeal I do not think that any useful purpose will be served by making an order for remand.

As regards the contention based upon sec. 90 of the Evidence Act, the argument in substance is that the presumption contained in that section should not be given effect to in a case where the document is the basis of the title of the party who has sought to use it in evidence. In support of this contention reliance has been placed upon the decision of this Court in the case of Shyarn Lal Ghose v. Rameswari Basu . In the judgment of this Court in that case in which the question arose as to whether a Will can be proved by means of the presumption under sec. 90 of the Evidence Act, it was thus said:—“If the rule were applicable to a probate Court it would not be necessary to prove Wills executed 30 years before the death of the testator. We are unable to hold therefore that the rule applies to proof of a Will in the probate Court. Besides, sec. 90 of the Evidence Act merely says that in the case of a document 30 years old the Court may raise presumptions mentioned in it, not that it must do so. Where the genuineness of the document is for any reason doubtful it is open to the Court to reject it, however ancient it may be.” The observation of the learned Judges in that case to the effect that the rule does not apply to proof of Will in a probate Court, in my opinion, lays down more a rule of expediency than a hard and fast rule of law. The presumption contained in sec. 90 of the Evidence Act no doubt has always got to be applied with a good deal of caution; but I am unable, in a case in which the presumption legitimately arises under that section, to hold that merely because it is a Will or a document upon which the title of the party rests, it is not open to the Court to apply that presumption, provided of course that the case is a fit and proper one for the application of the presumption. No authority has been cited before us which goes the length of asserting this proposition that this presumption is not applicable to the case of a document which forms the foundation of the party's title. On the other hand, there are numerous cases in the books in which the presumption has been applied to cases of such documents. In the case of Shafiqunnissa v. Shaban Ali Khan (5), the Judicial Committee had occasion to consider the provisions of sec. 90 of the Evidence Act and their Lordships there pointed out that “what is meant by the ‘Court may presume’ a document to be genuine is shown by sec. 4 of the Act which is in these terms: ‘Whenever it is provided by this Act that the Court may presume a fact it may either record such fact as proved unless and until it is disproved, or may call for proof of it.’ “In several decisions of this Court, amongst which reference may be made to the cases of Trailakhsya Nath Nandi v. Shurno Ghungoni and Gobinda Hazra v. Pratap Narain Mukhopadhaya , this presumption has been applied to documents upon which the title of one or other of the parties rested and it would be pertinent to quote the observations of Mr. Justice Hill in the last of those two cases. He observed thus in that case:—“If there are reasonable grounds for suspecting its genuineness and the party relying upon it fails to satisfy the Court of its due execution, there is an end of it. But if no such ground exists and it satisfies the conditions prescribed by sec. 90 of the Indian Evidence Act, then proof of execution is dispensed with, and it is to be dealt with on the same footing as any other genuine instrument. When the genuineness of a document purporting to be an ancient document is put in issue it appears to have been sometimes thought that any presumption in its favour is thereby excluded. But this would be to deprive the party producing it of the benefit of the presumption precisely in the circumstances in which he most stands in need of its aid.” I am therefore of opinion that regardless of the question as to whether the document in question forms the foundation of the party's right or whether it was sought to be used as a piece of evidence the Court may in a proper case rely upon the presumption contained in sec. 90 of the Evidence Act. Having regard to the facts of the present case to which I have already referred it cannot be said that the Courts below were wrong in relying upon the said presumption.

The third and fourth grounds urged on behalf of the Appellants may be taken up together, for they are really contentions which have been put forward on behalf of the Defendant No. 7. It has been said that a proper issue should have been framed as to whether Defendant No. 7 was the benamdar for the other Defendants; that the Court below was wrong in including evidence which had been adduced on behalf of Defendant No. 7, in order to prove that he was not the benamdar; and that the said Defendant No. 7 had acquired a title, by adverse possession in respect of the mortgaged properties which would be sufficient to enable him to resist the Plaintiffs' claim. I am of opinion that the question as to whether the Defendant No. 7 is the benamdar for the other Defendants is a question of very minor importance in the present case.

I do not see that any attempt was made on behalf of the Defendant No. 7 at the time when the issues were framed to raise a distinct issue on this question, and having regard to the findings of the learned Judge to the effect that it was an admitted fact that notwithstanding the purchase by the Defendant No. 7 the other Defendants are still in possession of the mortgaged properties I am unable to find that there is any valid ground of complaint on the part of Defendant No. 7 in the present appeal.

The next ground relates to the question of limitation. It is based upon the supposition that Art. 75 of the Limitation Act applies to the case and that the Plaintiffs must take recourse to sec. 20 of the Limitation Act to save limitation. This argument is based upon a misapprehension, for the proper article to apply in the present case is Art. 132. For the Plaintiffs, in my opinion, it is not necessary to rely at all upon sec. 20. If they can show that the instalments that were overdue had been really paid by the Defendants and accepted by them and that there was waiver by such payment they are perfectly competent to sue for recovery of the instalments due for the years 1316 and 1317. This payment may be proved in the same way as any other fact to be proved in the case. In this the Plaintiffs have succeeded according to the findings of the learned Judge. The learned Judge has observed in his judgment that—“There is no good reason to discredit the evidence of payment of overdue instalments. I accept the evidence of payments and hold that both parties waived the default.” Independently therefore of the provisions of sec. 20 of the Limitation Act and the endorsement of payments which are to be found on the back of the document the payments of the overdue instalments and the receipts thereof by the Plaintiffs have been proved in the case. This contention also of the Appellants therefore fails.

The last contention urged is to the effect that by reason of the provisions of the Usurious Loans Act, it should be held that the transaction was one which should not be given effect to by the Court. This argument overlook the provisions of sec. 2 of the Act which makes that Act inapplicable to the transaction in question.

The result then is that the Appellants are not entitled to succeed upon any of the contentions excepting the one based upon sec. 68 of the Act to which I have referred. Now the position is this. If the case goes back and if the witness who has not been examined is still alive he will be examined in the case. If he gives evidence against the Plaintiffs the Court will be entitled to rely upon sec. 90 of the Evidence Act, because the Plaintiffs' case all along has been that the witness is hostile. If he deposes in favour of the Plaintiffs, the Plaintiffs' case will gain additional strength. The result therefore would be that no difference would arise by reason of the examination of the said witness, if he is alive.

In the result therefore in my opinion the appeal fails and must be dismissed with costs.

Greaves, J.:— I agree.

P.C

Gobinda Chandra Pal v. Pulin Behary Banerji

Court Opinion Summary (Mukerji, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellants' Arguments

Respondents' (Plaintiffs') Arguments / Court's Statements of Plaintiffs' Position

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Gobinda Chandra Pal v. Pulin Behary Banerji

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