1. This revisions; application arisesfrom debt adjustment proceedings. The transaction in question took place on 10-6-1927. The property which was the subject-matter of this transaction is Survey No. 193. It admeasures 17 acresand 25 gunthas. This property was ostensibly soldfor Rs. 2,000/ -.
This property originally belonged to an undivided Hindu family consisting of three brothers Shivram, Shankar and Parwat. The purchaser was the brother-in-law of Shivram. In the present proceedings Parwat and Shankar pleaded that the transaction was a mortgage and they wanted the adjustment of their debts on that footing. The learned trial Judge accepted the plea of the debtors, held that the transaction was a mortgage, adjusted the debts and passed an award in their favour.
In appeal, a different view has prevailed. It has been held by the lower appellate Court that the transaction was a sale. On that view, there was no question of adjusting any debts and the application of the debtors so far as this transaction is concerned, has been dismissed. It is this decision which has given rise to the present revisional application.
2. Mr. Desai for the petitioners fairly conceded that the question as to whether a transaction is in the nature of a mortgage or not would be a question of fact and ordinarily findings of fact recorded by the lower appellate Court on such a question would bind the parties in a revisional application.
But Mr. Desai contended that in coming to the conclusion that the transaction was a sale the learned Judge also took the view that one document which was produced by the debtors appeared to be fabricated.
That is why, in allowing the appeal preferred by the creditor, the learned Judge also directed that a notice shall be issued to both the debtors as also to their witness Dhanji Shivram to show cause as to why sanction should not be granted for prosecuting them for having forced the document and for using the same as evidence in the case.
The document in question is Ex. 63/1. It is this part of the order and the finding on which the order is based that is seriously challenged before me by Mr. Desai.
3. Now, the document in question purports to be a Karar executed on 25-1-1927. If this document were genuine, it may lend considerable support to the plea made by the debtors that the transaction of 1927 was a mortgage. In order to appreciate the effect of this document, some more facts must be stated.
In 1927, a partition took place between the three brothers. By this partition, Parwat got 13 1/4 gunthas, Shankar got 4 3/4 gunthas and Shivram got 18 acres and 13 gunthas. 'Prima facie' the partition appears to be inequitable. Shankar has got a very poor share and Shivaram appears to have obtained the best share.
The debtor's case was that, at the time when the partition was effected, the family was indebted, and since Shivram took it upon himself to repay the family debts he was given 18 acres and 13 gunthas on condition that he should repay the family debts, enjoy the land for the said period and then bring it bark to the hotchpot to be divided again amongst the three brothers.
This document was produced by the debtors on 7-3-1949 and the view which the lower appellate Court was disposed to take was that this document may have been fabricated some time in January 1949. The learned Judge has given some reasons in support of this conclusion.
On the other hand, the trial Court was not impressed by the argument that the document was fabricated. He felt that the very fact that the partition was disclosed by the entries from the record of rights showed that there must have been some reason why one of the brothers was given a much larger share whilst the others were given a much smaller share and the learned Judge felt impressed by the argument that the Karar offered the explanation for the apparently inequitable nature of the partition.
It is possible to take either of the two views on the record as it stands. If the Judgment of the lower appellate Court had not been materially influenced by inadmissible evidence, I may not have interfered with his final decision in the matter.
But I am satisfied that, in coming to the conclusion that the document impugned appeared to be a fabricated document, the learned Judge was considerably swayed by the opinion of the handwriting expert.
4. The story about how the opinion of the handwriting expert came on the record is also interesting. The debtors suggested to the learned Judge that, since the genuineness of the document was challenged, they were prepared, and in fact they desired, to have the document examined by an handwriting expert. This proposal did not receive full support from the creditor.
The document, however, was sent to the expert and it would appear that the opinion forwarded by the expert in writing threw doubt on the genuineness of the document. But the expert was not examined and nothing further was done in that behalf.
The lower appellate Court appears to have taken the view that though the expert did not enter into the witness box and did not prove his opinion, a communication received from him could be regarded as evidence and as such can be considered in dealing with the question as to whether the document is genuine or not.
Indeed, in more than two places in his judgment, the learned Judge has referred to the opinion of the expert and he has in fact found that the circumstantial evidence which arose about the genuineness of the document was corroborated by the opinion of the expert.
Now, in relying on the opinion of the expert, the learned Judge was really acting upon evidence which had not been proved according to the Evidence Act. The opinion sent by the expert in writing cannot prove itself.
It was essential that the expert should have stepped into the witness box and then perhaps for convenience he may have been permitted to put his opinion on the record so as to enable the opponent to cross-examine him in reference to that opinion.
Unless the expert stepped into the witness-box, the opinion expressed by him in a communication to one of the parties could not be treated as evidence under the Evidence Act. Unfortunately the lower appellate Court lost sight of this fact.
Since the lower appellate Court has presumably attached considerable importance to the opinion of the expert, it is impossible to assess what part the opinion of the expert played in persuading the learned appellate Judge in coming to the conclusion that he did.
5. Besides, the learned Assistant Judge does not appear to have given due weight to the apparently inequitable nature of the partition among the three brothers.
It is common ground that the apparently inequitable partition was effected because Shivram undertook to pay the family debts, and that in part is the genesis of the document impugned. This fact also may have a material bearing in deciding whether the document is genuine or not.
It is perfectly true that, if a litigant is suspected of having fabricated false evidence, it is the duty of the Court to direct enquiry in the matter.
Whenever it appears to the Court that it is expedient in the interests of justice that attempted fabrication should be penalised and punished, the Court should not hesitate to adopt that course.
But, on the other hand, a distinction must always be drawn between a document which does not appear to the Court to be genuine on the evidence produced and a document which may be regarded as fabricated.
This distinction is of considerable importance in deciding whether criminal proceedings should be started against a party or not.
In my judgment, in coming to the conclusion that a notice should be issued against the debtors and their witness, the learned appellate Judge allowed his mind to be swayed by inadmissible evidence and that is why I propose to interfere with that order.
6. I would accordingly confirm the order passed by the lower appellate Court in setting aside the award on the ground that the transaction of 10-6-1927 is a sale.
I would, however, set aside his order directing that notice should be issued against the debtors and their witness Dhanji Shivram, because I am not prepared to confirm the finding of the lower Appellate Court that on the record as it stands there is reasonable ground for believing that document is fabricated. In substance, however, the application fails and the rule is discharged with costs.
7. Rule discharged.