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Radha Kishen and anr. Vs. Fateh Ali Ram - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Judge
Reported in(1898)ILR20All532
AppellantRadha Kishen and anr.
RespondentFateh Ali Ram
Excerpt:
act no. iv of 1882 (transfer of property act) section 59 - act no. i of 1872 (indian evidence act) section 68--attesting witness--scribe of a deed. - - i take it that the finding of the two lower courts is that the plaintiff was bound to call one attesting witness at least, that he failed to do so, and that the evidence of the witness, that is to say, of the scribe, whom he did call, was not in law sufficient to prove the bond......the case to the court of first instance with instructions that, if the evidence of the scribe be in its opinion credible, that court is at liberty on that evidence to find the bond proved. costs of this appeal will follow the result.
Judgment:

Burkitt, J.

1. It seems to me that this case is exactly on all fours with the case of Muhammad Ali v. Jafar Khan Weekly Notes., 1897, p, 146. It is true that none of the witnesses was called, but the plaintiff did call the scribe of the deed, who, though not an attesting witness, had affixed his name on the deed and who swore that the deed had been in his presence executed by the parties to it. The Lower Appellate Court finds that the evidence of the scribe is not sufficient to prove the bond. By that phrase it is clear that the learned Subordinate Judge means that, as the scribe was not an attesting witness, his evidence is not legally sufficient to prove the bond. The Subordinate Judge does not say that he disbelieves the scribe. If he had said so there would have been an end of the matter. I take it that the finding of the two lower Courts is that the plaintiff was bound to call one attesting witness at least, that he failed to do so, and that the evidence of the witness, that is to say, of the scribe, whom he did call, was not in law sufficient to prove the bond. On the authority of the case cited above I am of opinion that that decision is wrong, and that if the Munsif and the Subordinate Judge believed the evidence of the scribe to be true, they were quite at liberty on that evidence alone to find that the bond had been executed. This case has been decided on the preliminary point that the evidence of the scribe was legally insufficient to prove the bond. I set aside the decree of the lower Court and remand the case to the Court of First Instance with instructions that, if the evidence of the scribe be in its opinion credible, that Court is at liberty on that evidence to find the bond proved. Costs of this appeal will follow the result.


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