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Debi Dayal and ors. Vs. Ambika Prasad and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1929All545
AppellantDebi Dayal and ors.
RespondentAmbika Prasad and ors.
Cases ReferredBrown v. Dean
Excerpt:
.....is said to have been discovered recently, if it be in fact genuine, will turn out to be conclusive on the issue which was raised. kali charan has been examined in this court and we are satisfied that the petitioners learnt about this deed from kali charan, and we have no doubt upon an examination of the affidavits filed by devi dayal and raj bahadur, and the statement made in court before us, that they did not know of the deed of gift and discovered it in the way that they have stated in their affidavits. on examination of all the circumstances the affidavits of kali charan, devi dayal and raj bahadur and the oral evidence they gave before us we are satisfied that there was nothing suspicious regarding the circumstances under which the petitioners came to know of the deed of gift and..........1921, upon the ground that the plaintiffs-appellants have made a recent discovery of a deed of gift dated 22nd april 1893. the first objection taken by the learned advocate for the respondent is that this application is barred by time as under article 173, sch. 2, lim. act the period prescribed for filing the application had expired long before the date of the application. the affidavit filed on behalf of the petitioners states that they obtained a copy of the deed of gift on 10th june 1926. the petitioners should have presented an application at once, that there was no formal application for extension of time and no reason had been given for the delay in filing this application after 10th june 1926. the application was presented on 18th october 1926 and the court was closed for the.....
Judgment:

1. We have come to the conclusion that we ought to issue notice in this case. The matter is of an exceptional character, and not free from difficulty; and we think it, therefore, desirable for the benefit of the parties to state broadly our grounds for issuing notice.

2. The application is made to this Bench, one of the Judges constituting which was a member of the Bench which decided the first appeal, the judgment in which it is now sought to review. The application is made on behalf of the plaintiffs to review a judgment of this Court, dismissing the first appeal so long ago as 17th June 1921. The main issue in both the Courts, which resulted in concurrent findings, was whether one Bhawani Prasad an ancestor of the defendants had survived a female ancestor, Sitala Kunwar, who admittedly died in 1906.

3. The ground upon which the application is made is the recent discovery, that is to say five years after the decision, of an alleged deed of gift, made by the father of the said Bhawani Prasad, which it is claimed conclusively shows that the said Bhawani Prasad not only predeceased Sitala Kunwar, but predeceased his own father, who died in 1896, and must have died about 1888.

4. Now the principles upon which a new trial is allowed or a review is granted on the ground of discovery of new and important evidence, are stated in a comparatively recent judgment of the Calcutta High Court Nandu Lal Malik v. Panchanan Mukerjee [1918] 45 Cal. 60 where there is a reference to some English cases on the subject and a pronouncement of the Lord Chancellor in Brown v. Dean [1910] A.C. 473 to the effect that where the ground is the alleged discovery of new evidence, it must at least be such as is presumably to be believed, and if believed would be conclusive.

5. It is also relevant to consider whether the discovery has been made under suspicious circumstances. We express no opinion about this, beyond saying that the coincidence which led to the discovery in this case is on the face of it, a curious one. It is traced to information supplied to the present applicants by one Kali Charan, whom they met by accident. Kali Charan has filed an affidavit, corroborating the fact that he communicated the information to them. That of course is essential to the applicants' case but he has gone further or attempted to disclose how he came to be possessed of the knowledge which he communicated. As notice is to go, it is not necessary to insist on a further affidavit, provided that Kali Charan is present at the hearing, prepared to give evidence before us and to submit himself to cross-examination on this part of the case.

6. On the other issue which we have to consider, namely whether the new evidence, in this case, a deed of gift, is to be believed, we can say nothing. That will be a matter which will no doubt be contested before us, but inasmuch as the successful defendants at the trial relied upon documentary evidence, which if true, was conclusive, and the present applicants now rely upon a deed of gift, which if genuine, would be practically conclusive, Sir Tej Bahadur is quite right when he says that the issue now raised is as to which side has attempted to support their case by deliberate forgery.

7. The further branch of this issue, namely whether the new evidence, if believed, would be conclusive, is the ground of this application, which at present impresses us the most. A perusal of the High Court's judgment and the Subordinate Judge's judgment shows that the case was on any showing a curious one. The High Court's judgment dwells upon the features of the case, which went to assist the plaintiffs, namely that the absence of certain entries and the absence of certain conduct, both of which would have been expected in the ordinary course of events from Bhawani Prasad, if he had been alive, had to be explained' and were in fact explained by the successful defendant by saying that although he had not actually embraced a religious life, he had taken to a contemplative or ascetic life, and as a consequence refused to take any part in the management of his affairs, leaving that to his wife and son. That was acknowledged to be a strange story. On the other hand the story set up by the plaintiffs was considered to be a strange story and the final decision of this Court declined to decide which was the more unlikely of the two witnesses. This is another striking feature of the decision because the defendants relied very strongly on a positive piece of evidence purporting to be a certified copy of the entry of the death of Bhawani Prasad in the municipal register. The original, owing to the process of weeding and to palpable delay, if not negligence, on the part of the defendants in obtaining the original, is not now available. This High Court commented on the delay which had occurred even in procuring the copy, and declined as appears from its judgment, to act on this affirmative documentary evidence. It was therefore driven to fall back upon what it believed to be facts rather than inferences testified to by oral evidence alone, namely two persons who swore that they had been present when Sitala Kunwar died in 1906 and saw Bhawani Prasad there. It is as a rule a sound principle where there is a difficult investigation of a fact, the history relating to which is somewhat obscure, to prefer contemporaneous documentary evidence, if it is trustworthy to any amount of oral evidence, which does not always create the same amount of confidence. If a document is conclusive it can only be get rid of by showing that it is not genuine. If on the other hand its genuineness is established it as a rule outweighs such evidence as this Court finally accepted as conclusive in this case. We therefore think that there is a strong prima facie case for saying that this new evidence, which is now tendered, and is said to have been discovered recently, if it be in fact genuine, will turn out to be conclusive on the issue which was raised. The respondents must be supplied with copies of all the affidavits which have been filed in this matter, together with the grounds of the application and this order.

8. We think generally that every body in this case, who has made an affidavit, should be present at the hearing, ready to submit himself to cross examination, if required, and we therefore direct that a special date be fixed for the hearing, and we leave it to the counsel for the applicants when notices have been duly served to apply to us to fix a date.

9. (After a date was fixed, the case came up before their Lordships and the following judgment was delivered.

Judgment.

10. This is an application for review of a judgment of this Court of 17th June 1921, upon the ground that the plaintiffs-appellants have made a recent discovery of a deed of gift dated 22nd April 1893. The first objection taken by the learned advocate for the respondent is that this application is barred by time as under Article 173, Sch. 2, Lim. Act the period prescribed for filing the application had expired long before the date of the application. The affidavit filed on behalf of the petitioners states that they obtained a copy of the deed of gift on 10th June 1926. The petitioners should have presented an application at once, that there was no formal application for extension of time and no reason had been given for the delay in filing this application after 10th June 1926. The application was presented on 18th October 1926 and the Court was closed for the long vacation from 30th July 1926, to 17th October 1926. Sir Tej Bahadur Sapru who appears in support of this application has submitted that 90 days time is allowed to the petitioners from the date of their knowledge, and where the knowledge is after that period, no period is prescribed by the Limitation Act, and at most Article 181, Sch. 2, Lim. Act, applies. He therefore submitted that if in the opinion of the Court his contention cannot be accepted he orally prayed for extension of time.

11. We have come to the conclusion that the contention of Sir Tej Bahadur Sapru cannot be accepted and that to accept the interpretation put by Sir Tej Bahadur Sapru on Article 173 we would have to read into that article the words

that the facts upon which the review is sought comes to the knowledge of the petitioner.

12. This we cannot do. We, however, under the peculiar circumstances of this case consider that although Raj Bahadur says in his statement before us that it was possible that he could present the application on 30th June 1926, we are of opinion that in view of the facts of this case and the time which had elapsed since the date of the judgment of this Court and the statement of the plaintiff that he had to consult counsel and decide about taking steps, there was no unreasonable delay in filing the application and we extend the time as prayed for by Sir Tej Bahadur Sapru.

13. We would now take the merits of this application. The principle upon which an application for review can be sought has been stated in the order of this Court dated 16th December 1926, passed by Sir Cecil Walsh and one of us when notice of this application was issued to the opposite party. The facts briefly stated are that the plaintiffs as reversioners to one Nand Lal who died in the year 1863 sued for possession of the estate upon the death of Nand Lal's daughter Mt. Sitla Kuer who admittedly died on 16th December 1906. The case for the plaintiffs was that they were the next reversioners at the date of death of Mt. Sitla Kuer and the defendant's case was that Bhawani Prasad, son of Gur Sahai, who was the next reversioner had excluded the plaintiffs from succeeding to the estate of Nand Lal. Gur Sahai died in the year 1896 and the question at issue between the parties was whether on 16th December 1906, Bhawani Prasad was alive. The trial Court found that Bhawani Prasad was alive on 16th December 1906 and that finding was accepted in appeal by a Bench of this Court presided over by Walsh and Stuart, JJ. on 17th June 1921. The applicants stated that they received the information about the deed of gift of 22nd April 1893, from one Kali Charan. Kali Charan has been examined in this Court and we are satisfied that the petitioners learnt about this deed from Kali Charan, and we have no doubt upon an examination of the affidavits filed by Devi Dayal and Raj Bahadur, and the statement made in Court before us, that they did not know of the deed of gift and discovered it in the way that they have stated in their affidavits.

14. The next question for determination is whether we can hold that the petitioners had constructive notice of the deed of gift. From the facts stated in para. 36 of the affidavit of Devi Dayal which has not been challenged in the cross-examination of Devi Dayal, it appears that it was not possible for the plaintiffs to know of the deed of gift at the time when the deed was executed. The property which was the subject of the deed of gift was in the possession of Gur Sahai the donee and on the date when the plaintiffs instituted their suit, the property was in the possession of Gur Sahai's natural heirs, there was no occasion for the plaintiffs to search the registration office for finding out how the person then in possession of the property came to be in possession of the property. We therefore cannot accept the contention of the learned advocate for the opposite party that the plaintiffs should have and ought to have examined the registration office and if they had they would have come to know of it.

15. As has been stated in the order of 16th December 1926, the principle upon which a review is granted is the discovery of such new and important evidence which if believed would be conclusive. We have therefore to see whether there is any reason to suspect the genuineness of the deed. Kali Charan, son of Bhawani Prasad, filed an affidavit on 2nd November 1928, and a number of statements are made in that affidavit, but as regards the deed in question he did not really challenge the genuineness of the deed and only suggested that the deed of gift remained a dead letter. In para. 10 of the affidavit Kali Charan stated that upon the death of Gur Sahai the names of Ram Narain and Mt. Rekhab Kuer (his mother) and Kali Charan were entered in the revenue records.

16. We had before us the original registers from the registration office to see if the certified copy produced by the petitioners was correct or not, and upon an examination of the registers and the statements of the officials of the registration department we have come to the conclusion that Gur Sahai did execute the deed of gift as is evidenced by the certified copy filed by the petitioners.

17. It has been contended by Dr. Katju appearing on behalf of one of the opposite parties that the deed of gift was not admissible in evidence under Section 32, Cl.(5), Evidence Act. The learned advocates for the respective parties referred to the relevant sections of the Evidence Act and several reports of cases in support of their cases. We think, however, that it is not necessary for us to decide at this stage finally whether the document was admissible in evidence or not. All that we need say at this stage is that in our opinion prima facie the document is admissible in evidence.

18. In the deed of gift Gur Sahai states that his son Bhawani Prasad was dead and if Bhawani Prasad had died before the date of the execution of the deed, he could not possibly have been alive on the date when Mt. Sitla Kuer died and it seems to us that prima facie this deed is conclusive regarding the point at issue between the parties in this case. On examination of all the circumstances the affidavits of Kali Charan, Devi Dayal and Raj Bahadur and the oral evidence they gave before us we are satisfied that there was nothing suspicious regarding the circumstances under which the petitioners came to know of the deed of gift and that the petitioners did not know of the deed of gift until the year 1926, and that the deed of gift is genuine and is prima facie conclusive regarding the point at issue between the parties. We therefore grant the application for review of the judgment of this Court in F.A. 395 of 1918. Costs will abide the result.


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