Judgement

Appeal (No. 12 of 1929) from a decree of the High Court (August 11, 1927) reversing a decree of the Subordinate Judge of Arrah (March 27, 1923).

This report is confined to that part of the judgment of the Judicial Committee which deals with the admission of additional evidence by the appellate Court, the appeal giving rise otherwise to questions of fact only.

7 Law Rep. 58 Ind. App. 254 ( 1930- 1931)

Parsotim V. Lal Mohar 98

The following short statement of the circumstances of the litigation is summarized from the judgment.

The suit was for the redemption of a series of usufructuary mortgages, executed between 1883 and 1914 in favour of the respondents by the members of a joint Hindu family represented by appellants Nos. 6 and 7. The property mortgaged was a separated share in a mauza. The suit was instituted on March 3, 1922, by appellants Nos. 1 to 5 as owners of the equity of redemption under mukarrari leases. The respondents by their written statement filed on April 28 denied the validity of the leases, and claimed an addition to the redemption money, which had been deposited in Court under s. 83 of the Transfer of Property Act, but did not question the right of the mortgagors to redeem. The mortgagors, appellants Nos. 6 and 7, who had been joined as defendants, were then joined as co-plaintiffs. After issues had been settled, on June 26, the respondents produced four documents, exhibits A, Al, A2 and A3. Exhibit A purported to be a contract, signed by appellant No. 6 on behalf of his joint family in November, 1917, by which the mortgagors agreed to transfer their interest in the property to the mortgagees in consideration of their fighting out survey proceedings with the tenants. Exhibits Al, A2, A3, also A4 (which was produced later), were similar documents, purporting to have been executed by the owners of other mortgaged shares in the property; none of the alleged executants were called at the trial. The respondents alleged that the documents had been mislaid.

In August the respondents filed a petition ascribing the written statement to a mistake by their pleader, and by leave amended the defence by pleading the contract contained in exhibit A.

The trial judge held that it was not proved that any of the documents in question was genuine, and made a decree for redemption.

The respondents, before the hearing of an appeal by them, applied to the High Court and obtained leave to adduce evidence as to the authenticity of the thumb-mark purporting to have been made in execution of exhibit A4, the appeal being adjourned meanwhile.

Subsequently the appeal was heard and was allowed, the suit being dismissed. The judgment, delivered by Das J. and concurred in by Allanson J., found that exhibit A was a genuine document.

1930. Nov. 17, 18, 20. De Gruyther K.C. and Dube for the appellants.

The respondents did not appear.

1931. March 26. The judgment of their Lordships was delivered by

SIR GEORGE LOWNDES. [Upon a detailed examination of the evidence their Lordships agreed with the judgment of the trial judge that exhibit A had not been proved and that consequently the defence failed. The relevancy of exhibits Al to A4 was very slight; if the respondents relied on them in confirmation of their story as to exhibit A it was for them to prove their due execution, which they had not done. After discussing the grounds upon which the judgment of Das J. was based, the present judgment continued as follows ] Their Lordships have no desire to pursue further their criticisms of this judgment They will only say that it is, in their opinion, unconvincing and unsatisfactory. They must, however, refer to one incident. The question of the thumb-impression of Musammat Bataso was apparently regarded as of importance, and the respondents seem to have applied, before the hearing in the appellate Court began, to be allowed to give evidence of its genuineness. The learned judges acceded to this application and adjourned the hearing to give the r