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Smart Summary

Structured Summary of the Opinion: Appeal in an Action of Ejectment

Factual and Procedural Background

This is an appeal brought by the plaintiff in an action of ejectment. The main factual matrix, as stated in the opinion, is that the original grant of the disputed property was in favour of the grandfather of the defendants; the defendants (and those through whom they claim) have been in possession by inheritance from their father. Defendant No. 1 claims as purchaser of the rights, title and interest of the other defendants. The disputed legal issue between the parties is whether the tenancy in question was permanent and transferable.

Procedurally, the District Judge, in concurrence with the Court of first instance, found against the plaintiff, holding that the tenancy was of a permanent character or otherwise rejecting the plaintiff's claim. The plaintiff challenged that decision on the principal ground that the judgment was based on evidence that was not admissible in law. The matter is before this Court on that appeal.

The opinion refers to several documentary exhibits: a dar-mukarari lease described in the text as dated "20th February 1880" (a copy produced at trial), a document referred to in the opinion as of 1830, references to tenancy activity dating from 1829, and various certified copies and local records produced at trial. The opinion evaluates the admissibility and weight of these documents.

Legal Issues Presented

  1. Whether a certified copy of an ancient document (a dar-mukarari lease and other certified copies) is admissible in evidence in the absence of the original, under Section 90 of the Evidence Act.
  2. Whether Section 18-A of the Bengal Tenancy Act (S. 8, Act 1 of 1907 (B.C.)) precludes the use of an instrument (to which the landlord is not a party) as evidence against the landlord regarding permanence, transferability, rent or any incident of the tenure.
  3. Whether admissions or statements made by guardians of the person of an infant proprietor (for example, admissions recorded in 1861) are competent to bind the infant in respect of property rights.
  4. Whether documentary material such as a road cess return or an admission by the Court of Wards, when tendered at trial, were properly proved and/or could be relied upon to decide the question of permanence and transferability of the tenancy.
  5. Whether, after excluding documents objected to as inadmissible, the remaining legally admissible evidence supports the inference that the tenancy was permanent and transferable.

Arguments of the Parties

Appellant's Arguments

  • The copy of the dar-mukarari lease and other certified copies cannot be received in evidence because the originals are not produced and, according to Section 90 of the Evidence Act, the presumption of genuineness applies only upon production of the original document; therefore the presumption is not applicable to the copy produced.
  • Reliance was placed upon the literal terms of Section 90 and on English authority (e.g., Padwick v. Wittcomb) to show that certified copies would not be admissible according to the rules recognized in English law.
  • The appellant argued that hardship (loss of an original while a certified copy exists) should not expand the scope of S. 90; analogous hardship exists in other contexts (unstamped original lost) but that does not justify altering the statutory language.
  • Before the Judicial Committee decision in Shahzadi Begum v. Secy. of State, it was contended that the cases which allowed copy-admissibility should not be treated as deciding the general admissibility of certified copies without proof of an original's execution.

Respondent's / Court of first instance / Responding submissions

  • The certified copies should be admitted; in the case of Shahzadi Begum v. Secy. of State the Judicial Committee accepted a certified copy as admissible and their decision is binding on this Court.
  • Even if Section 18-A of the Bengal Tenancy Act applied, it only precludes using such an instrument as evidence against a landlord to prove permanence or transferability; it does not bar use of the instrument to show the tenure-holder's own assertion at the time about the character of his tenancy.
  • Guardians of the person cannot bind an infant proprietor by admissions of property rights; however, certain admissions were used at trial for a limited purpose (to contradict statements made by the plaintiff's witnesses), which renders them admissible for that restricted purpose.
  • Some documents (such as the road cess return or Court of Wards record) were properly before the District Judge and either proved or used for limited purposes; the District Judge did not base his conclusion solely upon those potentially objectionable items.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Marine Investment Co. v. Haviside; Kopasan v. Shamu Cited as examples where a certified copy or similar documents could not be received in evidence (noted as creating hardship where an unstamped original is lost). The Court observed these decisions are in conflict with others and noted they illustrate hardships but did not rely on them to decide the appeal.
Haran Chunder v. Russick Chunder Identified as being in conflict with the two cases immediately above regarding admissibility/penalty issues. Court noted the conflict but did not base its decision on this authority.
Khetter Chunder Mookerjee v. Khetler Paul Sreeterutno Wilson J.'s construction of Section 90 was placed upon S.90 in a way favorable to admitting copies. The Court acknowledged that case as taking a different construction of S.90; but because of higher authority (Judicial Committee) it could not follow it if inconsistent.
Ishri Prasad Singh v. Lalli Jas Kunwar Sir Arthur Strachey accepted the construction in the Khetter Chunder case with hesitation. Cited as part of the divergence of judicial opinion on the construction of S.90; not followed as binding.
Vasudeo v. Bhau Identified as possibly tending to support the construction favourable to admitting copies under S.90. Not relied on as decisive; mentioned as part of the varying authorities.
Appathura Pattar v. Gopala Panikkar Cited as supporting the contrary view to Khetter Chunder (i.e., against admitting copies without proof of the original's execution). Not adopted as the controlling authority in this appeal.
Shahzadi Begam v. Secretary of State (Judicial Committee) Considered by the Court as concluding the question against the appellant on admissibility of certified copies of ancient documents when the certified copy was produced and treated as genuine. The Court held itself bound by this decision and, in reliance upon it, ruled that the certified copy in the present case was properly received in evidence.
Padwick v. Wittcomb (House of Lords) Cited by appellant to show English rule that certified copy would not be admissible. The Court found this decision distinguishable from the present facts and of no assistance to the appellant.
Bullen v. Michel English observations supporting admissibility in the circumstances similar to those considered by the Judicial Committee. The Court noted that Bullen v. Michel supports the Judicial Committee's view and was consistent with its conclusion.
Wigmore on Evidence, Vol. 3, S. 2143 Textual authority cited as supporting the admissibility view. Mentioned as supportive, but the Court emphasized statutory interpretation and the Judicial Committee decision rather than relying on English treatise as decisive.
Brojendra Coomar Roy v. Chairman of the Dacca Municipality; Suruj Muhki Konwar v. Bhagwati Konwar; Ram Autar v. Mahamad Mumtaj Ali Cited to support the proposition that guardians of the person of an infant are not competent to bind the ward by admissions as to property rights. The Court agreed that guardians of the person could not bind the infant by such admissions, but explained that the document in question had been used for a limited defensive purpose (to contradict a statement) and therefore was receivable for that restricted purpose.
Miller v. Babu Madho Das; Girindra Chandra v. Rajendra Nath; Basava v. Kalapa; Oomatool Fatima v. Ghnnnoo Singh Cited for the principle that omission to take objection to admission of a document which is absolutely inadmissible does not render it admissible in law. The Court observed that some objections had not been taken in the same form below but allowed full argument; these authorities were cited to explain the approach to objections and admissions of documents.
Mohoram Sheik Chaprasi v. Telamuddin Khan Cited for the principle that a court may infer permanence of a tenancy from established facts and circumstances. The Court applied this principle directly: given the tenancy's descent over generations, continuous transfer, and uniform rent for an extended period, the Court inferred the tenancy was of a permanent character and relied upon this to affirm the decree.
Womes Chunder Chatterjee v. Chundee Churn Roy Sir Richard Garth's principle regarding a related evidentiary or legal point (not specified in full in the opinion). The Court expressly stated it did not depart from the principle recognized in that case but held that the principle did not apply to the present case.

Court's Reasoning and Analysis

The Court proceeded through a sequential analysis of the evidentiary objections and the ultimate inferences to be drawn on the core factual question (permanence and transferability of the tenancy):

  1. Construction of Section 90, Evidence Act: The appellant argued that S.90 applies only to originals and therefore a certified copy should not attract the statutory presumption of genuineness. The Court acknowledged that the language of S.90 might be read in the appellant's favour (i.e., that it contemplates production of the original document), and that alternative constructions had been placed upon S.90 by earlier judges.
  2. Binding authority — Shahzadi Begum: Despite the divergence of opinions in prior cases, the Court held itself bound by the decision of the Judicial Committee in Shahzadi Begum v. Secretary of State. In that case a certified copy produced from custody and found to have contemporaneous stamps and watermarks was treated as admissible; the Judicial Committee effectively adopted the District Judge's conclusion as to genuineness and admissibility. For that reason, the Court concluded that the certified copy (the dar-mukarari patta and other certified copies) in the present case was properly received in evidence.
  3. Section 18-A, Bengal Tenancy Act: The Court considered the appellant's reliance on Section 18-A, which provides that instruments not involving the landlord shall not be evidence against the landlord of the permanence, amount, fixity of rent, area, transferability or incident of the tenure. The Court held this section did not help the appellant: even if the section were applicable it only prevented use of the instrument as direct evidence against the landlord on permanence. It does not prevent the document being used for a different purpose — namely, to show the tenure-holder's assertion at the time that the tenancy was of a particular character. Accordingly, the dar-mukarari patta could be used to show such assertion and was admissible for that purpose.
  4. Usufructuary mortgage-bond (certified copy): A certified copy of a usufructuary mortgage-bond (8 March 1861) containing an assertion that the property was "maurasi mukarrari" and that it had been possessed by the mortgagor's father was held admissible for the reasons already given about certified copies and S.90.
  5. Admissions by guardians and limited use: The Court accepted the legal proposition (supported by cited authorities) that guardians of the person could not bind an infant proprietor by admissions as to property. However, the Court explained that the particular statement recorded by the mother and step-mother had been used in the Court of first instance not to bind the plaintiff but to contradict a statement by the plaintiff's own witness; it was therefore admissible for that restricted purpose. The Court criticized the District Judge to the extent that the District Judge appeared to have used that document for a wider purpose than merely contradiction.
  6. Road cess return and proof issues: An objection was raised as to the proof of the road cess return (that the signature of the Raja should have been compared with other signatures). The Court found no substance in that objection, noting that the point as presented on appeal had not been the issue argued below; the District Judge's approach was not open to criticism on that ground.
  7. Court of Wards admission: The Court acknowledged that an admission by the Court of Wards cannot bind the infant proprietor. It observed, however, that the District Judge did not base his conclusion solely upon such an admission.
  8. Overall inference on permanence: Having examined admissibility objections, and after discounting documents properly excluded or limited in use (such as certain admissions), the Court found a body of legally admissible facts: (a) documentary recitals of tenancy (an instrument dated in the opinion as 1830 and other documents), (b) admission in a certified mortgage copy (1851) acknowledging tenancy, (c) undisputed historical possession by the family for multiple generations, effective transfers between generations, and (d) uniform rent being paid for an extended period (the opinion refers to at least 80 years, from 1829 up to the date of suit). From these established facts, the Court applied the established legal principle (citing Mohoram Sheik Chaprasi v. Telamuddin Khan) that a court may infer that a tenancy was of a permanent character. The Court concluded that the admissible evidence was sufficient to support the District Judge's decree without remanding the case for further consideration.
  9. Application of precedent and restraint: The Court noted the divergence of judicial opinion on S.90 but emphasized that it was bound by the Judicial Committee's decision in Shahzadi Begum, which settled the admissibility point adverse to the appellant. The Court also expressly stated that it did not depart from principles recognized in Womes Chunder Chatterjee v. Chundee Churn Roy, but held that that authority did not apply to the facts of the present case.

Holding and Implications

Holding: The Court affirmed the decree of the District Judge and dismissed the appeal. In the words of the opinion: the decree of the District Judge is affirmed and this appeal dismissed with costs.

Implications:

  • Direct effect on the parties: The plaintiff's appeal is dismissed; the defendants' possession and the District Judge's decision in their favour stand. Costs were awarded against the appellant.
  • Evidence law implication (within confines of the opinion): The Court treated the Judicial Committee's decision in Shahzadi Begum v. Secretary of State as binding authority that a certified copy of an ancient document produced from proper custody and found to be genuine may be admissible; the present certified copies were therefore properly received in evidence and could be used (including to show assertions by tenure-holders). The Court relied on a legal inference (per Mohoram Sheik Chaprasi) that long uninterrupted descent, effective transfers, and uniform rent over a long period can justify inferring permanence of a tenancy.
  • No new precedent: The opinion does not purport to establish a novel legal rule; it applies existing authorities and statutory provisions (notably Section 90 of the Evidence Act and Section 18-A of the Bengal Tenancy Act) to the facts before the Court. The Court emphasized it was bound by earlier (higher) authority rather than laying down a new, autonomous principle.

Disposition: Appeal dismissed.

This summary is strictly based on the content of the provided opinion. No information has been added beyond what appears in the opinion text.

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    Banwarilal Singh v. Dwarkanath Missir

    1. This is an appeal on behalf of the plaintiff in an action in ejectment. Defendant 1 claims as purchaser of the right, title and interest of the other defendants, who were in possession of the disputed property by right of inheritance from their father. The original grant was in favour of the grandfather of these defendants and the question in controversy between the parties is whether the tenancy was permanent and transferable. The District Judge, in concurrence with the Court of first instance, has found upon this question against the plaintiff. This decision has been challenged in this Court on the ground that it is based on evidence not admissible in law.

    2. The first document to which exception has been taken is a dar-mukarari lease granted on 20th February 1880 by Kanchan Singh, the first tenant. The criginal of this document is not in existence and a copy has been produced which was taken in 1861 and since then has been produced in Court on several occasions.

    3. It has been contended that as there is no proof of execution of the original the copy cannot be received in evidence under Section 90 of the Evidence Act. In support of this proposition reliance has been placed principally upon the terms of S. 90 and it has been argued with considerable force that by no stretch of language can it be said that in the case before us the presumption mentioned in S. 90 is applicable to the copy produced. S. 90 provides that where any document purporting or proved to be thirty years old is produced from any custody which the Court in the particular case considers proper the Court may presume that the signature and every other part of such document which purports to be in the handwriting of any particular person is in that person's handwriting, and in the case of a document executed or attested that it was duly executed or attested by the persons by whom it purports to be executed and attested. It has been argued that this section contemplates the production of the original document, and that only upon such production can the Court presume that the signature and every other part of the document which purports to be in the handwriting of any particular person was in that person's handwriting. This view it has not been disputed, may lead to hardship where the original of an ancient document has been lost (though a certified copy is in existence) and no witness is available who can speak to its actual execution by way of analogy it has been mentioned that a similar hardship arises in cases where an unstamped original has been lost and a certified copy cannot be received in evidence even upon payment of penalty Marine Investment Co. v. Haviside (1) and Kopasan v. Shamu (2) which is in conflict with Haran Chunder v. Russick Chunder (3). We do not think any question of hardship really arises for consideration; what we have to determine is whether the interpretation of S. 90, suggested by the appellant is justified by its language; that we think must be conceded in his favour.

    4. But it is admitted that a different construction was placed upon S. 90 by Wilson J., in the case of Khetter Chunder Mookerjee v. Khetler Paul Sreeterutno (4) which was accepted as good law though with some hesitation by Sir Arthur Strachey in the case of Ishri Prasad Singh v. Lalli Jas Kunwar (5) The observations in Vasudeo v. Bhau (6) possibly tend in the same direction while the observations in Appathura Pattar…(Plaintiff) v. Gopala Panikkar…(Defendant) .* (7) support the contrary view. In view of this divergence of judicial opinion it would have been our duty to construe the terms of Section 90 of the Evidence Act but whatever our opinion might have been if the matter were res integra, we are bound by the decision of their Lordships of the Judicial Committee in the case of Shahzadi Begam v. Secy. of State (8) which we think concludes the point against the appellant. As it has been contended however that the point which now requires consideration was not decided by their Lordships we must examine the circumstances of that case. In that case reliance was placed upon a deed of exchange, the original of which had been lost. A certified copy, obtained in 1851, was produced at the trial. The genuineness of this certified copy was questioned. The District Judge found that the certified copy was genuine and admitted it in evidence. Upon appeal to this Court the certified copy was pronounced a forgery and the document was consequently rejected. When the matter went before the Judicial Committee reliance was placed on behalf of the appellant upon the certified copy and it was argued that the certified copy was not a forgery because it bore the same stamp and water marks as other contemporary documents admittedly genuine and produced in a previous litigation between the parties. The respondents contended that the certified copy was a forgery and also argued that the certified copy even if genuine was not admissible. On behalf of the appellant in reply reference was made to the decision in Khetter Chunder Mookerjee v. Khetter Paul Sreeterutno and it was contended that the certified copy was admissible without proof of execution of the original. Lord Collins in the course of his judgment first observed with regard to the deed of exchange that the certified copy was produced from the custody of Shahzadi Begum and was found to be written on paper bearing the same stamp and water marks as other documents on the record of that litigation he then proceeded to state that their Lordships agreed with the District Judge that it was admissible in evidence and for the reasons given by him adopted his conclusions as to its genuineness.

    5. The learned vakil for the appellant has contended that the only question before the Judicial Committee was whether or not the certified copy was genuine and that their Lordships did not decide whether the certified copy if genuine could be received in evidence because the parties at the original trial had contended that there was a genuine original which had been lost and the only question thus was whether what was produced as a certified copy was genuine or not. In our opinion it is clear from the report of the arguments before the Judicial Committee that the question of the admissibility of the certified copy was expressly raised before their Lordships and was treated by them as really not open to serious argument. But even if it be held that their Lordships assumed the document to be admissible because it was conceded that there was a genuine original the case before us is not distinguishable from the one before the Judicial Committee because the judgment of the District Judge shews that even according to the plaintiff there was a genuine original lease. Reference was made on behalf of the appellant to the decision of the House of Lords in Padwick v. Wittcomb (9) to show that the certified copy would not be admissible according to the rules of evidence recognized in English law; that decision however is clearly distinguishable and is of no assistance to the appellant. On the other hand the observations in Bullen v. Michel (10) undoubtedly support the view taken by their Lordships of the Judicial Committee (see also Wigmore on Evidence Vol. 3, S. 2143). It is not necessary however to place reliance upon the rule of English law on the subject; the question before us must be determined with reference to the statutory provisions contained in Section 90 of the Evidence Act; and in view of the decision of their Lordships of the Judicial Committee in Shahzadi Begum v. Secy. of State , we must hold that the certified copy was properly received in evidence.

    6. A second objection has been taken to the admissibility of this document. Our attention has been invited to Section 18-A of the Ben. Ten. Act, which was introduced by S. 8, Act 1 of 1907 (B.C). That section provides that nothing contained in any instrument of transfer to which the landlord is not a party shall be evidence against the landlord of the permanence amount or fixity of rent area, transferability or any incident of any tenure or holding referred to in such instrument. In our opinion this section is of no assistance to the appellant. If it be assumed that the section is applicable it merely lays down that nothing contained in the instrument to which exception is taken can be used as evidence as against the landlord of the permanence of the tenure mentioned in such instrument. This does not prevent the use of the document for an entirely different purpose, namely, to show that there was an assertion by the tenure holder at the time that his tenancy was of a particular description. Ex. O (the dar mukarrari patta) must therefore be treated as admissible in evidence. The second document to which exception has been taken is a usufructuary mortgage-bond executed by Durbari Singh, the son of the original tenant, on 8th March 1861. What has been produced is a certified copy of the document, and it contains an assertion by the executant that the property granted by way of usufructuary mortgage was his maurasi mukarrari property and that it had been possessed by his father who made a dar-mukarrari settlement thereof with the father of the mortgagee referring obviously to the document of 20th February 1830. We are of opinion for the reasons already given, that the certified copy was admissible in evidence. The third document to which exception has been taken is the record of a statement by the mother and step-mother of the predecessor of the plaintiff in 1861. It has been argued that the guardian of the person of the infant was not competent to bind the minor by an admission as to his property rights, and in support of this view, reliance has been placed upon the cases of Brojendra Coomar Roy v. Chairman of the Dacca Municipality (11), Suruj Muhki Konwar v. Bhagwati Konwar (12) and Ram Autar v. Mahamad Mumtaj Ali (13). In our opinion it cannot be disputed that the guardians of the person of the infant were not competent to bind the ward by an admission of this character. The document however appears to have been used in the Court of first instance, not with a view to bind the plaintiff by the admission of the guardian, but for an entirely different purpose.

    7. The plaintiff himself produced a statement by the mother of the infant to the effect that Durbari Singh, the son of the original tenant, held merely as an ijaradar; it was with a view to contradict this statement that the defendants produced the statement to which exception has been taken. For this limited purpose the document was undoubtedly receivable in evidence; but apparently, it has been used by the District Judge for a wider purpose. To this extent the judgment of the District Judge is open to criticism. The fourth document to which exception is taken is a road cess return. The objection here is really not to the admissibility of the document but rather to its proof. The document bears the seal of the Raja; it is contended that the District Judge should also have compared what purports to be the signature of the Raja on the document with his signature in certain documents which were produced at the trial and were more than 30 years old. In our opinion, the judgment of the District Judge is not open to criticism on this point. The aspect of the matter which has been presented here, was not placed before the District Judge, and the only question argued there was about the admissibility of the document in that objection, there was no substance. The fifth document to which exception is taken is the record of an admission by the Court of Wards, made apparently on behalf of the predecessor of the plaintiff when the estate was in charge of the Court.

    8. It cannot be seriously disputed that the admission by the Court of Wards cannot bind or prejudice the infant proprietor. But the judgment of the District Judge is not open to criticism on this ground, because he does not really base his conclusion upon the admission. We may observe incidentally that some of the objections urged here were not taken, at least in the same form in the Court below, but we have allowed them to be argued fully, partly from the importance of the questions raised, and partly in view of the principle that omission to take objection to the admission of a document which is absolutely inadmissible does not make it admissible in law:] Miller v. Babu Madho Das (14), Girindra Chandra v. Rajendra Nath (15), Basava v. Kalapa (16) and Oomatool Fatima v. Ghnnnoo Singh (17). The position then, is that we have a document of 1830 in which the existence of the tenancy is recited. We have further a document of 1851 in which the factum of tenancy is acknowledged by the grantor of the mortgage. It is true the landlord was not a party to these transactions; but it is not disputed on his behalf that there was a tenancy in favovr of Kanchan Singh and subsequently in favour of his son Durbari Singh. We have thus a tenancy of unknown origin, which has descended from father to son for three generations, has been effectively transferred from time to time and has been held at a uniform rent for at least 80 years from 1829 up to the date of the present suit. From these circumstances we are of opinion that the Court may legitimately infer that the tenancy in its inception was of a permanent character; Mohoram Sheik Chaprasi v. Telamuddin Khan (18). In this view it is not material to rely upon the documents to which objection has been successfully taken namely, the admission made by the mother and step-mother of the infant in 1861, the statement in the road cess return, and the settlement in the sale certificate, which after all is merely the allegation of the decree-holder and cannot in any way be direct evidence against the landlord. Even if all these statements be left out of consideration, the circumstances already mentioned, which have been indisputably established, support the conclusion that the tenancy was of a permanent character. It is consequently needless to remand the case for further consideration. The inference to be drawn is one of law from facts found or admitted: Mohoram Sheik Chaprasi v. Telamuddin Khan ; the facts established by the evidence legally admissible are sufficient to support the decree of the District Judge. But we desire to add that we do not in any way depart from the principle recognized by Sir Richard Garth, C.J, in Womes Chunder Chatterjee v. Chundee Churn Roy (19), which we hold does not apply to this case. The result is that the decree of the District Judge is affirmed and this appeal dismissed with costs.

    V.B/R.K

    9. Appeal dismissed.

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    Banwarilal Singh v. Dwarkanath Missir
    (Aug 13, 1912)