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PETITIONER:

ARJAN SINGH alias PURAN

Vs.

RESPONDENT:

KARTAR SINGH AND OTHERS.

DATE OF JUDGMENT:

02/03/1951

BENCH:

AIYAR, N. CHANDRASEKHARA

BENCH:

AIYAR, N. CHANDRASEKHARA

FAZAL ALI, SAIYID

MUKHERJEA, B.K.

CITATION:

1951 AIR 193 1951 SCR 258

CITATOR INFO :

RF 1963 SC1526 (9)

F 1974 SC2069 (5)

RF 1976 SC1053 (10)

ACT:

Civil Procedure Code, 1908, O. XLI, r. 27--Additional

evidence --Improper admission--Finding based on such evi-

dence--Whether conclusive--Interference--Punjab Custom Act

(H of 1920), s. 7-Suit to contest alienation of non-ances-

tral property--Maintainability.

HEADNOTE:

The discretion to receive and admit additional evidence

in appeal is not an arbitrary one but is a judicial one

circumscribed by the limitations specified in O. XLI, r. 27,

of the Civil Procedure Code, and if additional evidence was

allowed to be adduced contrary to the principles governing

the reception of such evidence, it would be a case of im-

proper exercise of discretion, and the additional evidence

so brought on the record will have to be ignored and the

case decided as if it was non-existent.

259

The legitimate occasion for admitting additional evi-

dence in appeal is when on examining the evidence as it

stands some inherent lacuna or defect becomes apparent, not

where a discovery is made outside the court, of fresh evi-

dence, and an application is made to import it. The true

test is whether the appellate court is able to pronounce

judgment on the materials before it, without taking into

consideration the additional evidence sought to be

adduced.Kessowji Issur v.G. 1. P. Railway (34 I.A. 115) and

Parsotim v. Lal Mohan (58 I.A. 254) referred to.

Though ordinarily a finding of fact, however erroneous,

cannot be challenged in second appeal, a finding which is

arrived at on the basis of additional evidence which ought

not to have been admitted and without any consideration of

the intrinsic and palpable defects in the nature of such

evidence cannot be accepted as a finding which is conclusive

on appeal.

Under s. 7 of the Punjab Act II of 1920 no one can

contest an alienation of non-ancestral immoveable property

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on the ground that such alienation is contrary to custom.

JUDGMENT:

CIVIL APPELLATE JURISDICTION : Appeal (Civil Appeal No. 31

of 1950) against a judgment and decree dated 28th February,

1946, of the High Court of Judicature at Lahore in Regular

Second Appeal No. 887 of/942.

Ram Lal Anand (Harbans Lal Mittal, with him) for the

appellant.

Bakshi Tek Chand (P.S. Safeer, with him) for the' re-

spondents.

1951. March 2. The Judgment of the Court was delivered

by

CHANDRASEKHARA AIYAR J.--The plaintiff, Arjan Singh alias

Puran, brought a suit in the court of the Subordinate Judge,

Jullundur, against Inder Singh, Kartar Singh and five oth-

ers, for a declaration that a will executed by the first

defendant, Inder Singh, in favour of the second defendant,

Kartar Singh, about 14 years ago was null and void as

against the plaintiff, who was the first defendant's rever-

sionary heir after his death. The plaint comprised a half

share of land measuring 395 kanals in the village of Kadduw-

al,

34

260

another half share of land measuring 837 kanals and 11

marlas in the village of Pattar Kalan, and four houses in

the latter village. In the pedigree attached to the plaint

showing the relationship of the parties, the plaintiff

claims Sehja Singh as his 4th ancestor. Jodha Singh and Jai

Singh are shown as Sehja Singh's sons. Defendant No. 1,

Inder Singh, is Jodha Singh's grandson. It is alleged that

the parties are Jar agriculturists governed by the customary

law in matters of alienation of ancestral property and

succession, and that as a sonless proprietor under this law

is not competent to make a will in respect of his ancestral

property, when there are collaterals up to the 5th degree,

and as the entire property mentioned in the plaint was

ancestral, the will made by the first defendant in favour of

the second defendant who claimed to have been adopted by the

first defendant was invalid and ineffectual. Plaintiff was

born on 22nd July, 1919, and was a minor when the will was

made, and so the suit was within time.

The suit was contested mainly by the second defendant,

Kartar Singh, who set up his adoption, and pleaded that the

properties were not at all ancestral as regards the plain-

tiff. Defendants 3 to 7 remained ex parte.

At the trial, it was admitted that the land situated in

Kadduwal was not proved to be ancestral. The Subordinate

Judge held that even the land in Pattar Kalan was not shown

to be ancestral by the evidence adduced on the side of

plaintiff, as it was found that the common ancestor, Sehja

Singh, had not only two sons called Jodha Singh and Jai

Singh, but a third son named Pohlo, and that from the mere

fact that the two sons enjoyed the land in equal shares, no

presumption could arise that the property was ancestral and

descended by inheritance from the common ancestor, when

nothing was known about the share of the third son. He

recorded findings in favour of the plaintiff on the issues

as to adoption and limitation, but he also held that the

plaintiff had no locus standi to contest the validity of the

adoption as the period of limitation

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had expired long before he was born. In the result, the suit

was dismissed.

The plaintiff preferred an appeal to the court of the

District Judge. He filed an application under Order XLI,

rule'27, and section 151, Civil Procedure Code, for

leave to adduce additional evidence. The document he wanted

to be taken on record and considered, and of which it was

alleged that he was not aware at the trial, was a kami beshi

statement relating' to Mauza Pattar Kalam, which contained a

note that the third son, Pohlo, gave up his interest in the

ancestral property in favour of his brothers. A copy of the

statement was filed along with the appeal memorandum. The

application was naturally opposed on behalf of the contest-

ing defendants who urged that the plaintiff appellant had

ample opportunity to produce all his evidence in the lower

court to prove that the property was ancestral and that

the entry on which reliance was now sought to be placed

appeared on the face of it to be a forged one. The District

Judge posted the application to be heard along with the

appeal itself. On the 17th March 1942, that is, even before

he heard the appeal, the District Judge allowed the applica-

tion. Referring to the two entries found in the naqsha kami

beshi prepared in 1849-50 and the muntakhib asami-war pre-

pared in 1852, which stated that Pohlo had relinquished his

ancestral share, he observed: "These two entries taken

together, if found genuine, would enable the Court to arrive

at a just conclusion. It is, therefore, in the interest of

justice that the additional evidence should be let in. I

have taken action under Order XLI, rule 27 (1) (b), of the

Civil Procedure Code. This additional evidence would supply

material to remove the defect pointed out in the judgment of

the court below, why two of the sons of Sehja Singh came to

own equal shares of land of Pattar Kalan in the presence of

their 3rd brother". He permitted the parties to call

evidence relating to the two documents. Two witnesses were

examined on the side of the appellant. Munshi Pirthi Nath

is the clerk in the D.C's office, Jullundur City, and he

brought the

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record of rights for the village Pattar Kalan prepared at

the time of the settlement of 1849-50. Munshi Niaz Ahmad is

the office Qanungo in the Jullundur Tahsil and he brought

the rauntakhib asami-war of the record of rights preserved

at the Tahsil Office. Both of them gave evidence about the

relevant entries found in the registers.

The District Judge reversed the decision of the Subordi-

nate Judge and decreed the plaintiff's suit on the strength

of this additional evidence. He held that the entries

relied on for the appellant were genuine and not forged and

that as Pohlo had relinquished his share, the land in Manza

Pattar Kalan was ancestral qua the plaintiff. He further

found that the suit was not barred and was within time under

article 120 of the Indian Limitation Act, but that the

adoption set up by the second defendant was not true. As

the custom of the district did not permit a proprietor to

will away any portion of his property, whether ancestral or

self-acquired, the plaintiff had, in the opinion of the

District Judge, a right to contest the will. On the basis

of these findings, he decreed the plaintiff's suit in its

entirety, including the lands in the village of Kadduwal

which were conceded to be nonancestral and also an area of 4

bighas and 16 biswas of land in Pattar Kalan which, accord-

ing to the record of rights, was not in the possession of

Jodha Singh and Jai Singh, but with third parties.

Kartar Singh, the second defendant, took the matter on

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second appeal to the High Court. The learned Judges of the

High Court held that there was nothing to show that the land

in Pattar Kalan was ancestral and that the District Judge

was not justified in admitting additional evidence in the

shape of the nabsha kami beshi and the muntakhib asami-war

records. They further pointed out that even a superficial

observation of the original documents led one irresisti-

bly to the conclusion that the entry regarding Pohlo giving

up his share was a subsequent interpolation. They came to

the conclusion, therefore, that the entire land situated in

Pattar Kalan

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was also non-ancestral and that the suit should have been

dismissed in toto, inasmuch as under section 7 of Act II

of 1920, no person is empowered to contest any alienation of

non-ancestral immoveable property on the ground that such

alienation is contrary to custom. In view of this

finding, no other question arose in the case for decision.

Leave was, however, granted to appeal to His Majesty in

Council and this is how this appeal is now before us.

It was strenuously argued by the learned counsel for the

appellant that it was not open to the High Court to inter-

fere with the discretion exercised by the District Judge in

allowing additional evidence to be adduced and that even

assuming that there was an erroneous finding of fact, it

must stand final as a second appeal can be entertained only

on the specific grounds mentioned in section 100 of the

Civil Procedure Code. There is, however, a fallacy underly-

ing this argument. The discretion to receive and admit

additional evidence is not an arbitrary one, but is a judi-

cial one circumscribed by the limitations specified in Order

XLI, rule 27, of the Civil Procedure Code. If the additional

evidence was allowed to be adduced contrary to the princi-

ples governing the reception of such evidence, it would be a

case of improper exercise of discretion. and the additional

evidence so brought on the record will have to be ignored

and the case decided as if it was non-existent. Under Order

XLI, rule 27, it is the appellate court that must require

the evidence to enable it to pronounce judgment. As laid

down by the Privy Council in the well-known case of Kessowji

Issur v.G. I. P. Railway(1)' "the legitimate occasion for

the application of the present rule is when on examining the

evidence as ii stands, some inherent lacuna or defect be-

comes apparent, not where a discovery is made, outside the

court, of fresh evidence and the application is made to

import it;" and they reiterated this view in stronger terms

even in the later case of Parsotim v. Lal Mohan (2). The

true test, there fore, is whether the appellate court is

able to pronounce

(1) 34 I. A. 115 (2) 58 I. A. 254

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judgment on the materials before it without taking into

consideration the additional evidence sought to be adduced.

In the present case, there is nothing to show that there

was any lacuna or gap which had to be filled up and that the

appellate court felt the need for the omission being sup-

plied so that it could pronounce a judgment; to put it the

other way round, it does not appear, and it was not stated,

that the District Judge felt himself unable to come to a

decision without copies of the settlement registers that

were sought to be put in before him for the first time. On

the other hand, the District Judge made up his mind to admit

the certified copies of the kami beshi and muntakhib asami-

war registers even before he heard the appeal. The order

allowing the appellant to call the additional evidence is

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dated 17th March, 1942. The appeal was heard on 24th April,

1942. There was thus no examination of the evidence on the

record and a decision reached that the evidence as it stood

disclosed a lacuna which the court required to be filled up

for pronouncing its judgment. In the circumstances, the

learned Judges of the High Court were right in holding that

the District Judge was not justified in admitting this

evidence under Order XLI, rule 27.

Even conceding that the reception of additional evidence

was proper, the District Judge has failed to consider the

inherent infirmities of the entries in the settlement regis-

ters relied on. for the appellant and the several criticisms

that could justly be levelled against them for showing that

they were spurious. He took the entries to be genuine. The

only reason assigned by the learned Judge for treating the

entries to be genuine and not forged appears to be that the

records had all along remained in proper custody. As

against this rather perfunctory remark we must set the

following observations of the learned Judges of the High

Court:

"Even a superficial observation of the original docu-

ments leads one irresistibly to the conclusion that this

entry was a subsequent interpolation. In

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naqsha kami beshi there was alrerady a remark in that column

and the remark relied upon which has very awkwardly been

inserted there is with a different pen and in a different

ink. It is even impossible to read it clearly. Further,

although there are 2 or 3 other places where the names of

Jodha and Jai Singh appear, no such remark has been made

against them. It may also be observed that though a corre-

sponding remark appears in the column of sharah lagan in

muntakhib asami-war where it is evidently out of place in

the copy retained in the Tahsil Office, there is no such

remark in the copy which is preserved at the Sadar Office.

Even otherwise it does not stand to reason why a remark to

this effect should have been made in this column. The way

in which these entries were said to have been traced also

throws a lot of suspicion on their genuineness."

We find ourselves in entire agreement with these obser-

vations of the learned Judges. It is no doubt true that a

finding of fact, however erroneous, cannot be challenged in

a second appeal, but a finding reached on the basis of

additional evidence which ought not to have been admitted

and without any consideration whatever of the intrinsic and

palpable defects in the nature of the entries themselves

which raise serious doubts about their genuineness, cannot

be accepted as a finding that is conclusive in second ap-

peal.

If the additional evidence is left out of account, the

appellant has practically no legs to stand on. There is

nothing to show that the common ancestor Sehja Singh was

possessed of the Mauza Pattar Kalan properties which are

found subsequently entered in the name of two sons in equal

shares, with nothing said about the share of the third son

Pholo. As a matter of fact, the pedigree table shows that

there was a fourth son called Hamira. If the property had

been entered in the registers in the names of all the sons

in equal shares, there might be some ground, however feeble,

for presuming that the property was ancestral as alleged by

the plaintiff. There is nothing to show

266

that the common ancestor owned the land and that his sons

got it from him by inheritance in equal shares.

The District Judge was obviously wrong when he decreed

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the plaintiff's suit even with reference to the lands in

Kadduwal conceded to be non-ancestral and the land in

Khasra No. 2408 measuring 4 bighas and 16 biswas, which was

not in the possession of the two sons Jodha Singh and Jai

Singh. He was equally wrong in holding that the customary

law which governed the parties did not permit the owner to

will away any portion of the property, whether ancestral or

self-acquired; this is contrary to section 7 of Punjab Act

II of 1920, which is in these terms:

"Notwithstanding anything to the contrary contained in

section 5, Punjab Laws Act, 1872, no person shall contest

any alienation of non-ancestral immovable property or any

appointment of an heir to such property on the ground

that such alienation or appointment is contrary to custom."

No other point arises in this appeal which fails and is

dismissed with costs in all the courts.

Appeal dismissed.

Agent for the appellant: Ganpat Rai.

Agent for the respondents: S.P. Varma.