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HIGH COURT OF CALCUTTA
R. P. MOOKERJEE, SARMA SARKAR
KOTISWAR MUKHERJEE - Appellant
Versus
PARESH NATH MUKHERJEE - Respondent
A. F. O. D. 160 Of 1952
Decided On : JULY 07, 1955
EVIDENCE ACT - SECTION 90 - COPY OF DOCUMENT - ADMISSIBILITY - PRESUMPTION - EXECUTION OF DEED OF GIFT - PROOF - REMAND.
Fact of the Case:
Plaintiffs claimed a six annas interest in certain properties under an alleged deed of gift executed by their predecessor-in-interest Mohesh in favor of his son Bamapada and an additional two annas interest as heirs of Mohesh. The defendants, descendants of Mohesh's other sons, contested the plaintiffs' claim, denying the execution of the deed of gift and asserting that the properties were not covered by it. The trial court decreed the suit in a preliminary form, dismissing the plaintiffs' claim based on the deed of gift.
Finding of the Court:
The High Court held that the certified copy of the deed of gift was not admissible in evidence under Section 90 of the Evidence Act to prove its execution, as the original document was not produced and its loss was not established. The court also found that the trial court had not properly considered the implications of the proceedings initiated by the mortgagee during Mohesh's lifetime and of the other documentary evidence produced.
Issues: 1. Whether the certified copy of the deed of gift was admissible in evidence under Section 90 of the Evidence Act to prove its execution. 2. Whether the trial court had properly considered the implications of the proceedings initiated by the mortgagee during Mohesh's lifetime and of the other documentary evidence produced.
Ratio Decidendi: 1. Section 90 of the Evidence Act raises a presumption as to documents more than thirty years old, but the presumption is permissive and does not involve any presumption that the contents of the document are true or that it had been acted upon. 2. A copy of a document is not sufficient to raise the presumption of the due execution of the original under Section 90. 3. The loss of the original is to be proved before secondary evidence can be allowed to be put in. 4. The circumstances under which a copy produced would be available not only to prove the existence of the original document, but of the terms thereof as well, must be considered on a case-by-case basis.
Final Decision: The High Court set aside the judgment and decree of the trial court and remanded the case for rehearing, allowing the parties to adduce fresh evidence on the question of the alleged deed of gift, its execution, and the treatment of the properties since the alleged deed of gift.
( 1 ) THE plaintiffs appellants and the defendants respondents claim Mohesh Chandra Banerjee as their predecessor-in-interest. Mohesh had one son Bamapada through his first wife, and four sons Debipada, Umapada, Khagendra and Haripada through his second wife. The plaintiffs are the descendants of Bamapada. The defendants axe the descendants of the other four sons of Mohesh. The plaintiffs filed the present suit out of which this appeal arises for partition of certain items of property which they claimed to be the joint properties of the family. The plaintiff further claimed that Mohesh had by a deed of gift in favour of his son Bamapada given six annas interest in fifty-two items of properties including the properties described in the schedule to the plaint. They accordingly claimed a six annas interest in the properties under the deed and an additional two annas interest as heirs of Mohesh.
( 2 ) TWO sets of written statements were filed by the defendants - one set by defendants 9 to 11 who were the daughters of Haripada, the youngest son of Mohesh; the other set was filed by defendants 1 to 8, who were descendants of the three other sons of Mohesh. It is not necessary to refer to the allegations contained in the two sets of written statements separately as in the main the defence is similar. Various objections had been raised by the defendants. It was contended that the alleged deed of gift had never been executed by Mohesh; even if there had been one, it had not acted upon. Further, the properties included in the plaint had not been the subject-matter of the deed of gift. The plaintiffs' right to claim partition was further contested on the ground that there were various other items of property held jointly by the members of the family which had been excluded by the plaintiffs. There were other necessary parties in whose presence alone the suit could be tried out.
( 3 ) THE learned Subordinate Judge had decreed the suit in a preliminary form. The plaintiffs' claim based upon the alleged deed of gift has been dismissed. The plaintiffs have appealed to this Court.
( 4 ) AFTER the appeal had been opened a prayer was made on behalf of the plaintiffs for liberty to withdraw the suit with leave to file a fresh suit on the same cause of action on the ground that there were formal and technical defects on which the suit was bound to fail. Time was given to file an application. This was filed on 7-6-1955, and affidavits have been filed by the parties with regard to the same. The defendants-respondents have waived their objections which had been raised in the trial Court on the ground of partial partition and of the necessary parties not having been impleaded. The technical and formal defeats referred to in the application of the plaintiffs-appellants, therefore, do not arise so far as the present appeal is concerned. Whether such defects were formal or technical ones need not be considered. We proceed to consider the appeal on the merits.
( 5 ) THE principal and practically the only question for decision in the present appeal is whether the plaintiffs are entitled to a larger share under the alleged deed of gift.
( 6 ) THE alleged deed of gift is stated to be of the date of the 7th Kartick, 1261 B. S. (22-10-1854 ). The plaintiffs' case is that it was an unregistered document. For the purpose of proving the existence of the deed of gift, the plaintiffs filed a certified copy of the same, such certified copy having been obtained from the records of Title Suit No. 816 of 1880. Attempts were also made to prove the existence of the deed of gift and that it had been acted upon on reference to certain proceedings between the members of this family and certain outsiders.
( 7 ) THE objection raised by the defendants in the lower Court that the items of properties included in the plaint are not covered by the alleged gift has been abandoned in this Court. All the parties have accepted in that Court the suit propert
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