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Gopal Rai Vs. Sarwi Begam - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in14Ind.Cas.243
AppellantGopal Rai
RespondentSarwi Begam
Excerpt:
document not produced by person having custody - evidence--proof--copy of registered document. - .....sarwi begam. the copy of the registered power-of-attorney is on the record. it gives muazzam ali shah power to borrow money and transfer the landed property of the lady should occasion arise. the court of first instance held execution of the bond proved and decreed the suit. in appeal the learned judge considered that the power of attorney had not been proved by the appellant by any evidence and accordingly allowed the appeal and dismissed the suit. taking into consideration that the defendants musammat sarwi begam and her husband had refused to produce the document when the presumption is that it was with them, and the further fact that there was a witness who deposed that muazzam ali shah was the muhhtar of sarwi, begam, we think that the court of first instance was right in holding.....
Judgment:

1. This second appeal has been instituted by one Lala Gopal Rai. He was plaintiff in the Court of first instance and he sued for a decree to recover Rs. 2,003, principal and interest, due on a mortgage-bond and prayed that in default the mortgaged property might be sold. Of the three defendants one, namely, Musammat Sarwi Begam, objected that she had not received the money and that it was not borrowed for her use and benefit. She refused to admit the allegation in the plaint that her husband, Muazzam Ali Shah, was competent to execute any mortgage-deed on her behalf. In order to prove that her husband was competent to execute the mortgage deed, it was necessary for the plaintiff to produce a Mukhtarnama alleged to have been executed by Sarwi Begam in favour of Muazzam Ali Shah. The plaintiff called on the defendant to produce the document. This was done repeatedly but the defendant neither filed the original power nor obtained any copy of it. The plaintiff; then went into the Registration Office and obtained a copy of this power-of-attorney. The defendant, still refused to admit the genuineness of this document. It so happened, however, that one Najaf Ali, who was a witness examined by Sarwi Begam, admitted that Muazzam Ali Shah was the Mukhtar-I-am of Sarwi Begam. The copy of the registered power-of-attorney is on the record. It gives Muazzam Ali Shah power to borrow money and transfer the landed property of the lady should occasion arise. The Court of first instance held execution of the bond proved and decreed the suit. In appeal the learned Judge considered that the power of attorney had not been proved by the appellant by any evidence and accordingly allowed the appeal and dismissed the suit. Taking into consideration that the defendants Musammat Sarwi Begam and her husband had refused to produce the document when the presumption is that it was with them, and the further fact that there was a witness who deposed that Muazzam Ali Shah was the Muhhtar of Sarwi, Begam, we think that the Court of first instance was right in holding the power-of-attorney proved, although there was before it only a copy obtained from the Registration Office. We are unable to agree with the learned Judge that the bond had not been proved and we have no alternative but to allow the appeal and set aside aside the decree of the lower Appellate Court. We remand the case for trial of certain issues which have not been tried in appeal. We direct the learned Judge to re-admit the appeal under its original number in the register of pending appeals and dispose of it according to law. Costs here and hitherto will abide the event. The costs in this Court will include fees on the higher scale.


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