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Regular Second Appeal No. 385 of 1954, decided on 28th January 1961.
Second Appeal‑Whether defendant had or had not relinquished his rights under gift‑Question of fact.
Document thirty years old‑Period of thirty years to be reckoned back from time when document is tendered for evidence.
Section 90, Evidence Act, 1872 refers to the production of a document, purporting or proved to be thirty years old, from proper custody for the purpose of proving it, and with all plausibility this means the time when the document is tendered for evidence by the person holding its proper custody. The presump tion attaching to old documents is founded on the difficulty in furnishing proof after thirty years, when the attesting witnesses and the executants may not be living, and should, therefore, be restricted to the time when evidence is to be produced.
Surendra Krishna Roy v. Mirza Muhammad Syed AU Mulawali A I R 1936 P C 15 rel.
Mahadeo Prasad v. Mst. Nasiban and another 54 I C 368 dissented from.
Sh. Noor Ahmad with Muhammad Yusaf Khan for Muhammad Amin Khan for Appellants.
Ghias Muhammad for‑ Respondents.
Date of hearing : 25th January 1961.
‑‑This is a second appeal from the judgment of Sheikh Frooq Ahmad, Additional District Judge Lyallpur at Jhang, whereby, reversing the judgment and decree passed by the Civil Judge, Jhang, he dismissed the suit of the plaintiff appellants.
2. The plaintiffs in their suit sought two reliefs, firstly, a declaration that they were owners in possession, according to their ancestral shares ' of the property described as "alif " in the plaint, in respect of which they also claimed an injunction to restrain the defendants from interfering with their rights and, secondly, they prayed for possession of 10 killas, described as property " be ", of which the defendants were alleged to be in wrongful possession. The suit proceeded on the averments that the land involved in the suit measuring about 1,146 kanals situated in village Roranwali, belonged to one Wahab,, ancestor of the parties, and that, on his death, it devolved on his six sons, named, Bahadur, Jahana, Ahmad, Shahmand, Muhammad and Rehan, in equal shares, each getting one‑sixth, amounting to 187 kanals and 17 marlas. The last‑named brother, Rehan, died issueless on the 18th of February, 1959. In his life‑time he had executed a registered gift deed (Exh. D. 6), dated the 18th of September 1929, in favour of Sohna and Sardul, respondents before us, and their brother Humayun, who died after this transaction. According to this deed, Rehan had gifted his entire share, which he had inherited from his father Wahab, to the above‑mentioned persons, who were sons of his brother, Muhammad. The gift deed was followed by a mutation (Exh. P. 2) attested in favour of the donees on the 6th of April. 1930. When Humayun died, his share was also mutated in favour of his brothers, the respondents Sohna and Sardul. By the gift mentioned above and by inheritance, the respondents along with their deceased brother Humayun came to be recorded in the revenue papers as owners of nine shares out of the total of twenty‑four shares in the suit land and were in addition in possession of 10 killas of extra land described as property " be " in the plaint. The plaintiffs' suit was in effect, directed primarily against the gift made in favour of the defendants by Rehan which had affected their ancestral shares involving an increase in the shares of the defendants and a corresponding decrease in their own. It was challenged on the ground that the gifted land was ancestral qua them and Rehan, and the agricultural custom, which governed the parties, forbade proprietors to make gift of ancestral property. It was further alleged that the gift was entirely fictitious and when it was challenged by the plaintiffs, the defendant‑respondents and their brother Humayun, realising that it could not be supported, had relinquished their claim to the gifted land, by executing an agreement, to that effect on the 8th of December 1930. The non‑existence of the gift was further stressed by the plea that possession of the gifted property had never passed to the defendant.
3. The defendant‑respondents in their written statement denied that the suit land was ancestral. They also denied that they were governed by agricultural custom in matters of alienation and succession. They maintained that the gift which was made in their favour in lieu of services was a genuine and a valid transaction. An objection was taken to the competency of the suit on the ground that a suit for a mere declaration could not proceed and that it was time barred. The plea of adverse possession was also set up. They repudiated the plaintiff' claim that they had executed a deed in their favour, relinquishing their ; rights to the property which they received from Rehan as a gift.
4. On the pleadings of the parties the learned trial Judge framed the following issues :‑
(1) Is not the suit for declaration maintainable without a prayer for the cancellation of the deed of gift
(2) Was Rehan deceased governed, by custom in the matter‑of alienations
(3) In case the above issue is proved, is the land in dispute ancestral qua Rehan and the plaintiffs
(4) In case Rehan was found to be governed by custom in the matter of alienation and the land in dispute is held to be ancestral, was the gift in question made in lieu of services and is valid
(5) Is not the suit for declaration within time
(6) Having the plaintiffs been in possession of the land held now to be in possession of the defendants within 12 years preceding the suit
(7) Are the defendants in adverse possession of the land in dispute for more than 12 years preceding the suit
(8) Did the defendants relinquish their rights under the gift to the extent of plaintiffs' share If so, when and what is its effect
(9) Relief.
The trial Court decided all the issues in favour of the plaintiff /appellants. An appeal was preferred to the Additional District Judge at Lyallpur, who; while agreeing with the findings of the trial Judge on other issues, modified his finding on issue No. 1 and came to a contrary finding on issue No. 8. On issue No. 1 be came to the conclusion that the plaintiff‑respondents in their suit did not seek a declaration that the gift was invalid and that if that relief had been solicited, it would have been time‑barred, having been instituted beyond six years of the date of the gift, as provided in Article I of the Schedule to the Punjab Limitation (Custom) Act (Act I of the 1920). He held that the relief claimed by the plaintiff‑appellants ignored the gift altogether, treating it as non‑existent, on the ground that it was not followed by possession and also because the defendants had relinquished their rights in the land. On issue No. 8 the learned lower Appellate Court held that it was not proved that the respondents had abandoned their rights under the gift from Rehan. In the result, holding that the respondents were owners of four shares as a gift from Rehan and of five shares by inheritance from their father, out of the total of twenty‑four shares, he declined to give any relief to the plaintiff ‑respondents, and dismissed their suit.
5. In this second appeal before us the only point argued by the learned counsel for the appellants is that the finding of the learned lower appellate Court on issue No. 8 is worng. Whether the defendant‑respondents had or had not relinquished their rights under a gift from their uncle Rehan is essentially a question of fact which is not open to challenge in a second appeal unless it is shown that the finding is contrary to law or has failed to determine some material issue of law or usage having the force of law. The learned counsel for the appellants tried to bring the case within the compass of section 100, Civil Procedure Code, by arguing that the learned lower Appellate Court has misread and misjudges the evidence and thus committed an error of law. We have gone through the entire evidence produced by the parties on this issue and have not been able to discover, where the lower Appellate Court has gone wrong in its appreciation of the evidence. The appellants had relied for proof of this issue on agreement Exh. P. 1. dated the 8th of December 1930. The scribe and the attesting witnesses of this agreement were admitted to be dead and the only evidence produced regarding it was the statement of one of the plaintiff‑appellants, Bahadur (P. W. 4), stating that the agreement was thumb‑marked by the respondents and their deceased brother Humayun in his presence and was acted upon. This was controverted by Sohna who, as D. W. 4; expressly repelled this contention. The learned first Court held that the agreement was proved on the ground that it was an old document and that the defendant‑respondents did not examine, an expert to establish that it did, not bear their thumb‑impressions. As rightly remarked by the lower Appellate Court, the onus to prove that the respondents had relinquished their rights in the gifted land was on the plaintiff‑appellants and, therefore, they had to prove every item of evidence on which they relied in this connection, including the agreement Exh. P. 1. It was not at all the duty of the respondents to prove negatively by examining an expert that the document in question did not bear their thumb impressions. The argument that the document is an old one does not by itself raise any presumption of genuineness in its favour unless, as provided by section 90 of the Evidence Act, it is proved that the document is thirty years old and was produced from a custody which the Court considered proper. The relinquishment deed in this case was allegedly executed on the, 8th of December 1930, and at the time when it was tendered in evidence on the 31st of January 1953, it was not thirty years old. The learned counsel drew our attention to a judgment of Stuart J. C., reported in Mahadeo Prasad v. Mst. Nasiban and another (54 I C 368 )in which it was held that if a document is thirty years old at the time of arguments it enjoys the privileges accorded by section 90of the Evidence Act. Although not expressly stated in the judgment the reference to the time of arguments appears to be to the stage of arguments in the first Court. A document which is freshly executed at the time when a suit is instituted may become thirty years old by the time the case reaches the first Court and argu ments are addressed there, and it would be absurd to suggest that such a document would be covered by section 90 of the Evidence Act. But with all respect, even the view of Stuart, J. C., men tioned above, stretches the point of time for determining the age of a document, as provided by section 90 of the Evidence Act, beyond the
intention of that section. The section refers to the production of document, purporting or proved to be thirty years old, from proper custody for the purpose of proving it, and with all plausibility this means the time when the document is tendered for evidence by the person holding its proper custody. The presumption attaching to old documents is founded on the difficulty in furnishing proof after thirty years, when the attesting witnesses and the executants may not be living, and should therefore, be restricted to the time when evidence is to be produced. In Surendra Krishna Roy v. Mirza Muhammad Syed Ali Mutawali (AIR 1936 PC15), their Lordships, of the Privy Council, interpreting section 90 of the Evidence Act, held as follows :‑
" The period of thirty years under section 90 of the Act is to be reckoned not from the date upon which the deed is filed in the Court but from the date on which, it having been tendered in evidence, its genuineness or otherwise, becomes subject of proof."
6. The learned lower appellate Court has held, by reference to the relevant Jamabandis, that the respondents even in the lifetime of their late father, Muhammad, were in separate possession of a substantial portion of the land gifted in their favour by their uncle Rehan. His finding that the gift was followed by possession is, therefore, not open to any exception.
We agree with the lower Appellate Court that the gift proved in favour of the respondents is beyond challenge and must be upheld.
7. The learned counsel for the respondents has urged that this appeal has abated wholly, or partially as one of the appellants, Waryam, died during the pendency of this appeal and no steps were taken to bring his legal representatives an the record within time. Since we are dismissing this appeal on merits, it is not necessary to decide this‑matter. The appeal is dismissed with costs.
A. H.
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