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1929 Supreme(SC) 110
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
VISCOUNT DUNEDIN, SIR GEORGE LOWNDES, AND SIR BINOD MITTER.
WALI MOHAMMAD DEFENDANTS - Appellant
Versus
MOHAMMAD BAKHSH - Respondents
On appeal from the High Court at Lahore.
Decided On : Dec. 16. 1929.
Solicitors for appellants:Ranken Ford & Chester. Solicitors for respondents: T. L. Wilson & Co.
A finding by a first appellate court on whether a fact has been proved is a pure question of fact, even if based on statutory presumptions or historical documents, and is final in a second appeal under the Code of Civil Procedure.
Headnote:(A) Code of Civil Procedure, 1908 - Sections 100 and 101 - Second Appeal - Scope - Finding of fact vs. Question of law - No jurisdiction to entertain second appeal on ground of erroneous finding of facts - Proper legal effect of a proved fact is a question of law, but the question of whether a fact has been proved when evidence for and against has been properly admitted is necessarily a pure question of fact.
(B) Land Revenue Act - Section 44 - Presumption of correctness of entries in record-of-rights - Whether a statutory presumption is rebutted by the rest of the evidence is a question of fact.
(C) Evidence - Documents that are historical materials and not instruments of title or direct foundations of rights do not convert a question of fact into a question of law.
Facts of the case:
A mortgage was executed in 1880, and the mortgagees entered possession. The defendants claimed they had purchased the equity of redemption orally in 1891-1892 and held the land as owners. The plaintiffs sued for redemption. The defendants relied on entries in the record-of-rights and a receipt for the purchase price. The first appellate court found the receipt concocted and held that the defendants failed to prove the sale, thereby upholding the mortgage.
Findings of Court:
The finding that no sale occurred is a pure question of fact. The first appellate court was correct in placing the onus on the defendants to prove the extinction of the mortgage. The entries in the record-of-rights were evidentiary items and not foundations of title.
Issues: Whether the decision of the appellate court that no sale had been proved was a pure question of fact or involved a question of law, and consequently, whether it was final under the Code of Civil Procedure.
Ratio Decidendi: A second appeal cannot be entertained on the ground of an erroneous finding of fact. While the legal effect of a proved fact is a question of law, the determination of whether a fact has been proved is a question of fact. The use of historical documents to prove a fact does not make the issue a question of law. Furthermore, determining whether a statutory presumption has been rebutted by evidence is a question of fact.
Result: Appeal dismissed with costs.
Legal Category Hierarchy
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practice and procedure
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civil procedure
- second appeal
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civil procedure
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property law
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mortgage
- redemption
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sale
- equity of redemption
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mortgage
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land revenue law
- record of rights
Judgement
Appeal (No. 31 of 1929) from a decree of the High Court (January 3, 1924) affirming a judgment of the Additional District Judge of Sheikhupura (March 26, 1923) which reversed a decree of the Subordinate Judge.
The respondents sued to redeem a mortgage of 1880; the defendants were the original mortgagee, and the present appellants who] represented three persons (two of whom were dead) who had purchased the mortgagees interest. The appellants pleaded that they had bought the equity of redemption in or about 1892, and that they had since held the land not as mortgagees but as owners. The Transfer of Property Act not applying in the Punjab the sale and transfer could validly be effected orally.
Five issues were settled, including the following (1) Does the relation of mortgagor and mortgagees subsist between the plaintiffs and defendants Nos. 3 to 7? (4.) Was the land in suit sold to defendants Nos. 3 to 7 by Sultan and Mohammad Bakhsh (the mortgagors)?
At the trial both parties adduced oral and documentary evidence. The appellants relied on, inter alia, a record-of-rights of the village prepared in 1892 under the Punjab Land Revenue Act (XVII. of 1887),
s. 31, the names of those represented by them were entered as owners ; by s. 44 the entries were to be presumed to be correct.
The facts of the case appear from the judgment of the Judicial Committee.
The Subordinate Judge dismissed the suit, holding that the sale was proved having regard to the presumption under s. 44 of the Act.
On appeal the Additional District Judge made a decree for redemption. He held that as the mortgage was admitted, the onus was upon the defendants to prove that it was not subsisting, and that the onus was not discharged, A receipt for the purchase price put forward by the defendants was in his view a concocted document, and consequently he could place no reliance on the rest of the verbal evidence which they adduced; further, he found errors in the entries in the register.
An appeal to the High Court was dismissed by Broadway and Forde JJ., who held that under the Code of Civil Procedure, 1908, ss. 100, 101, the finding that there had been no sale was binding in second appeal.
1929. Nov. 12, 14. De Gruyther K.C. and Wallach for the appellants The question to be determined in the suit was not a question of fact but of inference of law. Consequently the finding of the District Judge was not binding upon the High Court under ss. 100, 101, of the Code of Civil Procedure Ram Gopal v. Shamskhaton (( 1892) L. R. 19 I. A. 228.) ; Chaudhri Satgur Prashad v. Kishore Lal (( 1919)
L. R. 46 I. A. 201.); Dhanna Mai v. Moti Sagar .(( 1927) L. R. 54 I. A. 178.) In the case last cited the question was whether the inference from the facts was that a permanent tenancy existed, which is analogous to the question in this case, which is whether the mortgage was subsisting? Further, the finding was not binding, because, having regard to the presumption which arose under s. 44 of Act
XVII. of 1887, the District Judge was wrong in law in placing the onus upon the defendants. Effect was given by the Board to that presumption in Court of Wards v. Ilahi Bakhsh . (( 1912) L. R. 40 I. A. 18.) The evidence did not displace the presumption so arising.
Dube for the respondents The mortgage being admitted, the question was purely one of fact—namely, had the defendants proved the alleged sale to them. The finding of the District Judge therefore was binding upon the High Court and upon the Board Durga Choudhrain v. Jawahir Singh Choudhri (( 1890) L.R. 17 I. A. 122.) ; Nafar Chandra Pal v. Shukur .(( 1918) L. R. 45 I. A.
183.) That the District Judge had to consider the entries in the record-of-rights did not prevent his finding being one of fact as they were not the foundations of title or rights but merely part of the evidence of the fact to be decided Luchmun Lal Chowdhry v. Kanhya Lal Mowar (( 1894) L. R. 22 I.
A. 51.); Midnapur Zamindary Co. v. Uma Charan Mandal .(( 19
