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Second Appeal No. 264 of 1959, decided on 15th August 1961.
S. 65 read with S. 90‑Secondary evidence‑Private document‑Copy of‑Can be admitted only after proof of loss or destruction of original‑Copy not 30 years old‑Not admissible‑[Krishna Kishori Chowdhurani and another v. Kishori Lal Roy L R 14 I A 71; Emanuele Grech v. Antonio Grech and others 6 D L R 598 and Mst. Mulkh Bano and others v. Muhammad Banaras Khan A I R 1936 Lah. 788 ref.].
Objection not raised in trial Court‑May be raised in second appeal, being question of law [Shahzadi Bega v. Secretary of State for India I L R 34 Cal. 1059; Ambar Ali v. Lutfe Ali I L R 45 Cal. 159 and Kamulammal Avergal, Zamindarini of Bodinaickanur v. Athikari Sangali Subba Pillai and others 48 I C 515 distinguished].
S. 41‑Essentials Transferee not entitled to benefit of S. 41 if any essential element is wanting‑Burden of proving facts entitling transferee to such benefit, on transferee‑ Estoppel, plea of, must be raised in pleadings.
Before a party can have the benefit of section 41, Transfer of Property Act, 1882, the following conditions must be fulfilled: ----
(1) The transferor is the ostensible owner, (2) he is so by the ‑consent, express or implied, of the real owner, (3) the transfer is for consideration, (4) the transferee has acted in good faith, taking reasonable care to ascertain that the transferor had power to transfer.
A husband who had first transferred the land in favour of his wife, and was in possession of same on her behalf, if he subsequently transfers the land in favour of one of his son's wife, the husband cannot be described as an "ostensible" owner.
It is for the party relying on section 41 of the Transfer of Property Act to establish the facts which according to him would entitle him to the benefit under that section. Section 41 of the Transfer of Property Act makes it incumbent on the transferee to act in good faith and to take reasonable care to ascertain that the transferor had power to make the transfer. It is obvious that the first step, which the transferee is expected to take is to search the registration office to ascertain what transfers, if any, had been made by the transferor. The transferee is not entitled to the benefit of section 41 of the Transfer of Property Act if he or she fails to do so.
Nazir Ahmed Serang v. Benoy Bhusan Saha and others P L D 1957 Dacca 575 and Mst. Khatun Fatima v. Shib Singh an others A I R 1933 All. 917 ref.
Where no case of estoppel under section 41 of the Transfer of Property Act is set up in the written statement, it cannot be allowed to be put forward at the time of the hearing of the suit.
Lal Mohan Prasad v. Govind Sahu and others A I R 1940 Pat. 620 ref.
S. 100‑Finding of fact‑Trial Court's finding reversed by first appellate Court "without considering material facts and circumstances on which trial Court had based its decision"‑Error of law‑First appellate Courts decision not binding in second appeal‑Weight to be attach6d to trial Court's opinion.
The finding of fact arrived at by the first appellate Court without consideration of material facts and circumstances on which the trial Court based its decision is not binding in second appeal.
In appreciation of oral evidence, the appellate Court is to bear in mind that it has not the advantage to observe the manner in which the witnesses deposed in the trial Court. When a question of fact has been decided by the Trial Court, the appellate Court in weighing the record of evidence should attach the greatest weight to his opinion because he saw and heard the witnesses, and should not disturb his judgment unless it is plainly unsound.
Watt Or Thomas v. Thomas L R 1947 A C 484 ref.
If the appellate Court, without adverting to facts and circumstances on which the trial Court based its finding; reverses such finding, it amounts to an error of law and the appellate Court's decision is not binding on the I‑sigh Court in second appeal.
Chainta Dasya v. Bhalku Das A 1 R 1930 Cal. 591 con sidered.
Nasiruddin Chowdhury for Appellants.
Dharani Nath Datta for Respondents.
This appeal arises out of a suit for recovery of possession and mesne profits on declaration of plaintiffs' right and title to the disputed land.
2. It is admitted that the disputed land originally belonged to Nabab Ali. Plaintiffs case is shortly thus: --‑ Nabab Ali transferred the suit land to his wife Samar Bibi by a kabala dated the 12th Falgoon, 1315 B. S., she possessed the land through her husband Nabab Ali and son plaintiff No. 1 and on her death, interest passed to her sons plaintiff No. 1 Husan Ali and Jaifar. Jaifar died leaving a widow Fulbibi, pro forma defendant No. 10 and brother plaintiff No. 1. By amicable partition with her, plaintiff No. 1 got the share of pro forma defendant No. 10 in the suit land. Subsequently plaintiff No. 1 transferred portion of his interest in the disputed land to his son's wife plaintiff No. 2. Plaintiffs possessed the disputed land but in March, 1956 corresponding to Falgoon, 1362 B. S. they were dispossessed by the principal defendants. Hence the suit.
3. Defence is shortly this: Nabab Ali transferred the disputed land to pro forma defendant No. 10 by a kabala dated 28th Sraban, 1317 B. S. She possessed the land after transfer to her, through her husband Jaifar, and on death of Jaifar, through her nephew Abdul Gani. She transferred the suit land to defendants 1 to 9 by a kabala dated the 21st Aswin 1362 B. S. and since the purchase, principal defendant Nos. 1 to 9 have been in possession of the suit land.
4. The learned Munsif held that Nabab Ali transferred the suit land to his wife Samar Bibi and she possessed the land through her husband and her son plaintiff No. 1, that defendant No. 10 did not acquire any right and title by the kabala Exh. A(1) from Nabab Ali, that she did not possess the suit land, and that principal defendants dispossessed the plaintiffs in 1362 B. S. Accordingly the suit was decreed.
5. On appeal the learned Additional Subordinate Judge reversed the decision of the learned Munsif holding that Nabab Ali was the ostensible owner of the suit land, that by purchase from him, pro forma defendant No. 10 acquired right and title in the disputed land, possessed it and subsequently transferred her interest to defendants 1 to 9 who have been in possession of the disputed land since the purchase. The suit was accordingly dismissed by the Additional Subordinate Judge. Hence the second appeal at the instance of the plaintiffs.
6. Mr. Nasiruddin Chowdhury, the learned Advocate for the appellants has advanced the following points in support of appeal: --‑(1) The learned Additional Subordinate Judge erred in law in relying on the inadmissible document Exh. A(1) for holding that pro forma defendant No. 10 acquired title in the disputed land; (2) The lower appellate Court erred in law in holding that section 41 of the Transfer of Property Act would apply to the facts of the present case; (3) The judgment passed by the learned Additional Subordinate Judge is not a proper judgment of reversal as he did not advert to the reasons given by the learned Munsif for holding that pro forma defendant No. 10 did not acquire title and interest in the suit land and did not possess the land.
7. Section 65 of the Evidence Act mentions 7 cases in which secondary evidence of a document is admissible, namely, (a) when the original is in possession or power (i) of the opposite --party or (ii) of a person who is out of the reach of, or not subject to, the process of the Court, or (iii) of any person legally bound to produce it and when such person does not produce it after demand, i.e., notice under section 66;
(b) when the existence, condition or contents of the original are admitted in writing by the person against whom it is proved;
(c) when the original is lost or destroyed;
(d) when its production is physically impossible or highly inconvenient;
(e) when the original is public document;
(f) when the original is one of which a certified copy is permitted by this Act;
(g) when the originals consist of numerous accounts or other documents which cannot be conveniently examined in Court.
Secondary evidence of a private document is admissible only when the party desirous of admitting it has proved that the original is lost or destroyed. This view is supported by the case of Krishna Kishori Chowdhurani and another v. Kishori Lai Roy L R 14 I A 71. No secondary evidence of the contents of a private document is admissible until proof had been given of its execution and its subsequent loss or destruction. See Emanuele Grech v. Antonio Grech and others 6 D L R 598.
8. In the present case, the original kabala by Nabab Ali in favour of pro forma defendant No. 10 Fulbibi has not been produced. No evidence has been given about its execution by Nabab Ali in favour of Fulbibi. There is no evidence that the original is destroyed or lost or that defendants did all that they could do to produce the original. In the circumstances, the certified copy of the kabala marked Exh. A(1) was not ad missible in evidence and the learned appellate Court has erred in law in relying on it.
Evidence Act provides that documents thirty years old coming from proper custody prove themselves, that is, no evidence of the handwriting, execution or attestation need in general be given. But when the certified copy of the document is not thirty years old, presumption under section 90 of the Evidence Act cannot be raised with regard to it. This view finds support in the case of Mst. Mulkh Bano and others v. Muhammad Banaras Khan (A I R 1936 Lah. 788). In the present case, the copy was taken in 1954. No presumption under section 90 of the Evidence Act can be raised with regard to it. Exh. A (1) is the foundation of the defence case. No reliance should have been placed on it by the appellate Court below as it was not admissible in evidence. As the document goes out, defence case has no basis to stand.
10. Mr. Dutta, the learned Advocate for the respondents has contended in reply that as the plea that Exhibit A(1) is not admissible in evidence was not taken in any of the Courts below, B this cannot be raised in second appeal. The question whether a document is admissible in evidence or not is a question of law and can be raised in second appeal for the first time.
11. Mr. Dutta has further contended that as the certified copy Exh. A(1) was marked in evidence in the trial Court without any objection on the side of the plaintiffs the question against its admissibility cannot be raised in the second appeal. In support of this contention, reference has been made to the case of Shahzadi Bega v. Secretary of State for India (I L R 34 Cal. 1059); Ambar Ali v. Lulfe Ali (I L R 45 Cal. 159) and Kamulammal Avergal, Zamindarini of Bodinaickanur v. Athikari Sangali Subba Pillai and others (48 I C 515). In the case reported in 34 Cal. 1059 a kursinama and a certified copy of an ewaznama were marked in evidence by the trial Court without objection. The objection was raised in the Privy Council that the documents were not admissible in evidence. Their Lordships held that it was too late to object to the admissibility of the documents which were admitted without objection in the first Court. In that case, the kursinama was the original document. The original of the other document, namely, the ewaznama was lost. But in the present case Exh. A(l) is not the original docu ment. There is no evidence that the original of the copy Exh. A(l) is lost.
In the case reported in I L R 45 Cal. 159, it has been laid down that the Court will not entertain for the first time in appeal an objection that a document which per se is not inadmissible in evidence, has been improperly admitted in evidence. But in that case the original deed of conveyances was produced, while in the present case the original document has not been produced and no explanation has been given for its non‑production.
In the case reported in 48 I C 615, copy of a Sanad was marked in evidence in the trial Court with the consent of both the parties. The trial Court relied on it, but on appeal, the District Judge overlooking the fact that it was marked in evidence with the consent of both the parties, did not rely on it on the ground that the original Sanad was not marked in evidence. It was held that where a copy of a document was exhibited in the trial Court with the consent of both the parties, the appellate Court had no jurisdiction to reject it on the ground that the original was not produced. But in the present case Exh. A(1) was not marked in evidence with the consent of both the parties. The fact that it was marked in evidence without objection, would not tantamount to its being marked with the consent of the plaintiffs. Moreover, in that case, even before the High Court in second appeal the learned Vakil for the respondents conceded that the copy exhibited was a true copy of the original Sanad. But in the present case the learned Advocate for the appellants has not made any such admission. On the other hand, it is the case of the appellants that it was illegally marked in evidence.
12. Mr. Dutta has contended that at least opportunity should be given to the defendants to prove the original document, and for this purpose the case should be sent back on remand to the trial Court, None of the D. Ws. did make any statement relating to the execution of any kabala by Nabab Ali in favour of pro forma defendant No. 10. None of the D. Ws. did state that she had the original document executed by Nabab Ali. The existence of the original document has not been established by any evidence. In the circumstances no useful purpose would be served in sending back the case on remand to the trial Court.
13. The learned Additional Subordinate Judge held that as Nabab Ali continued to possess the suit land after sale to Samar Bibi with her knowledge, and pro forma defendant No. 10 subsequently purchased it from Nabar Ali for consideration, the interest of pro forma defendant No. 10 was protected under section 41 of the Transfer of Properties Act. For having the benefit under this section the following conditions are necessary :‑(1) The transferor is the ostensible owner, (2) he is so by the consent, express or implied, of the real owner, (3) the transfer is for consideration, (4) the transferee has acted in good faith, taking reasonable care to ascertain that the tranferor had power to transfer:
14. If any one of these elements be wanting, the transferee will not be entitled to the benefit of section 41 of the Transfer of Property Act. An ostensible owner is one, who has all the indicia of ownership without being the real owner. In the present case it cannot be held that Nabab Ali was the ostensible owner j after he executed the kabala in favour of his wife Samar Bibi. She was a pardah nashin lady and naturally the land would be possessed by her husband on her behalf. For the fact that Nabab Ali was possessing the land after the kabala in favour of his wife Samar Bibi, it cannot be held that he was the ostensible owner.
15. It is for the party relying on section 41 of the transfer of Property Act to establish the facts which according to him would entitle him to the benefit under that section (See Nazir Armed Serang v. Benoy Rhusan Saha and others (P L D 1957 Dacca 575). Section 41 of the Transfer of Property Act makes it incumbent on the transferee to act in good faith and to take reasonable care to ascertain that the transferor had power to make the transfer. It is obvious that the first step, which the transferee is expected to take is to search the registration office to ascertain what transfers, if any, had been made by the transferor. The transferee is not enti0ed to the benefit of section 41 of the Transfer of Property Act if he or she fails to do so. See Mst. Khatun Fatima v. Shib Singh and others (A I R 1933 All. 917). There is no evidence that Fulbibi made any enquuiry in the registration office if Nabab Ali had made any transfer previously. There is no evidence to show that she made any enquiry whatsoever whether Nabab Ali had power to transfer the case land.
16. There is no evidence to show that Samar Bibi misled Ful Bibi either by words or conduct to the belief that she had no proprietary interest in the suit land. As the transferor Nabab Ali and the transferee Ful Bibi were closely related, the transferee was expected to know the real nature of the transaction.
17. Where no case of estoppel under section 41 of the Transfer of Property Act is set up in the written statement, it F cannot be allowed to be put forward at the time of the hearing of the suit [See Lal Mohan Prasad v. Govind Sahu and others (A I R 1940 Pat. 620)]. In the present case, no case of protection under section 41 of the Transfer of Property Act was raised in the written statement. The objection should not have been allowed to be raised at the time of trial. In the facts of the present case, the defendants are not entitled to the protection under section 41 of the Transfer of Property Act.
18. The contention that the judgment passed by the learned Additional Subordinate Judge is not a proper judgment of reversal has also substance. The learned Munsif referred to the evidence of D. W. 1 that there was partition between the plaintiffs and pro forma defendant No. 10 after death of her husband Jaifar. The learned Additional Subordinate Judge did not refer to this statement of D. W. 1. The learned Advocate for respondents has contended that this partition was with regard to the pro perties of Jaifar which he got from his father and that as such no useful purpose would be served by such reference. But it was for the learned Additional Subordinate Judge to deal with the matter and to state whether be would put any value on the evidence of D. W. 1. The trial Court also referred to the discrepancies in the evidence of D. Ws. 2, 3 and 4 regarding possession of the land through one Gani and could not believe that pro forma defendant No. 10 possessed the land. It was held by the trial Court that though P. Ws. were not independent witnesses, he would believe them as defendants who were men of different villages and families united together to grab the suit land.
19. The learned Additional Subordinate Judge did not advert to the reasons given by the learned Munsif for accepting the evidence of P. Ws. and for disbelieving the D. Ws. The learned Additional Subordinate Judge referred to the evidence of P Ws., but without applying his mind as to what their actual evidence was, be disbelieved them on the ground that their evidence was vague and made the finding that pro forma defendant No. 10 possessed the land through her husband after transfer to her. The finding of fact arrived at by the first Appellate Court without consideration of material facts and circumstances on which the trial Court based its decision is not binding in second appeal [See Ahmed Meah Sawdagar v. Sherali and another (P L D 1960 Dacca 334)]. It cannot be held that the evidence of P. Ws. 1, 2 and 3 was vague. Their evidence goes to show that after Nabab Ali's kabala in favour of Samar Bibi, plaintiff No. 1 and Nabab Ali possessed the suit land and that after Nabab Ali's death, plaintiff No. 1 possessed the land up to Falgoon, 1362 B. S. when he was dispossessed by the defendants.
20. Further, in appreciation of oral evidence, the appellate Court is to bear in mind that it has not the advantage to observe the manner in which the witnesses deposed in the trial Court. When a question of fact has been decided by the trial Court, the appellate Court in weighing the record of evidence should attach the greatest weight to his opinion because he saw and heard the witnesses, and should not disturb his judgment unless it is plainly unsound. [See Watt Or Thomas v. Thomas (L R (1947) A C 484)].
21. Mr. Dutta has contended that in second appeal there should not be any interference with the findings of facts arrived at by the first appellate Court unless it can be shown that the findings have been arrived at through some error of law. In support of this contention he has referred to the case of Chainta Dasya v. Bhalku Das (A I R 1930 Cal. 591). In that case it has been laid down that the Court in second appeal cannot interfere with a finding of fact arrived at by the first appellate Court unless it can be shown that the finding has been arrived at through some error of law. But in the present case the first appellate Court arrived at the finding that pro forma defendant No. 10 was in possession and that she had acquired right and title in the disputed land without adverting to the facts and circumstances on which the trial Court relied for holding that plaintiff possessed the suit land before the dispossession in Chaitra 1362 B. S.
22. Mr. Dutta has lastly contended that at any rate plaintiffs would not be entitled to any relief in the suit as it has not been proved that the plaintiffs were in possession of the suit land within twelve years of the suit. His contention is that the suit is barred by limitation. The question of limitation cannot arise as it is the case of defendants that they are in possession of the land from the time of their kabala Exh. A which is dated 21st Aswin, 1362 B. S. corresponding to 8‑10‑1955. The suit was instituted on 23‑3‑1957.
23. Mr. Dutta has contended that as plaintiffs have set up a case of possession followed by dispossession, they must prove possession within twelve years of the suit. In support of this contention he has referred to the case of Ahmed Miaji and others v. Eakub Ali Munshi and others (P L D 1961 Dacca 259). In that case it has been laid down that where plaintiffs have set up a case of possession followed by dispossession, they must prove their possession within twelve years of the suit. It is well‑settled that plaintiffs must succeed on the strength of their own case and cannot take advantage of the weakness of the defence case. In the present case, it has been proved that plaintiffs were in possession before dispossession. There is the finding of the trial Court that plaintiffs were dispossessed as alleged in the plaint and that they have title to the disputed land. The evidence of P. Ws. goes to show that plaintiffs were in possession of the suit land before dispossession by the defendants in Falgoon 1362 B. S. It cannot be held that the plaintiffs were not in possession within twelve years from the date of the suit. The plea that the suit is barred by limitation cannot be accepted.
24. The decision of the learned Additional Subordinate Judge to the effect that plaintiffs have no right and title in the suit land cannot be upheld.
25. In the result the appeal is allowed with costs. The judgment and decree passed by the learned Additional Subordinate Judge are set aside and those of the learned Munsif are restored.
Leave under Clause 15 of the Letters Patent as prayed for by Mr. Dharani Nath Dutta is refused.
A. H.
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