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Abhimanya Biswas Vs. Abdul Sk. and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberS.A. No. 967 of 1971
Judge
Reported inAIR1981Cal444
ActsEvidence Act, 1872 - Section 32; ;Specific Relief Act, 1963 - Section 31; ;Contract Act, 1872 - Sections 16 and 17
AppellantAbhimanya Biswas
RespondentAbdul Sk. and ors.
Appellant AdvocateShyama Prosanna Roy Choudhury, Adv.
Respondent AdvocateNirendra Krishna Mitra, Adv.
DispositionAppeal dismissed
Cases Referred(See Rash Behari Naskar v. Haripada Naskar
Excerpt:
- .....sk. told them that the defendant no. 1 requested him to execute a partition deed but got a sale deed executed by practising fraud on him. the learned munsif has expressed the view that such evidence of the statement of a dead person is not admissible. but the learned subordinate judge has differed from the trial court op this point and relied on such evidence. the learned advocate appearing for the appellant has assailed the view of the appellate court regarding admissibility of the statement of the deceased daud sk. made to p. ws. 1 to 4. in my opinion, the correct position in law is that evidence of the statement of the deceased daud sk. is not admissible to establish the truth of the facts stated as it is hit by hearsay rule and does not come within any of the exceptions mentioned.....
Judgment:

Amitabha Dutta, J.

1. This is an appeal from the decision of the learned Additional Subordinate Judge, Nadia in Title No. 231 of 1969 affirming the judgment and decree of the learned Munsif. Additional Court, Krishnagore in Title Suit No. 37 of 1969.

2. The plaintiff Daud Seikh (since deceased) brought the suit for a declaration of title on avoidance of a kobala purported to have been executed on 29-2-1968 in favour of the defendants Nos. 1 and 2 and permanent injunction. The plaintiff's case stated briefly is this. The plaintiff and his nephew the pro forma defendant No. 4 had 8 annas share each in the disputed plot No. 401 of MoujaKanthalia. The defendant No. 1 purchased the share of the pro forma defendant No. 4 and by an amicable oral partition between the plaintiff and the defendant No. 1 the southern half of the said plot was allotted to the plaintiff. The plaintiff was an illiterate and simple villager aged about 70 and the defendant No. 1 set up cordial relationship with him and used to call him father. On 29-2-1968 the defendant No. 1 on a representation to the plaintiff that as his kobala of purchase from the defendant No. 4 had been lost by fire a deed of partition was necessary, took the plaintiff to the Sub-Registrar's Office at Karimpur and in collusion with the unscrupulous deed writer Subodh Sarkar (defendant No. 3) got a kobala dated 29-2-1968 in respect of 8 annas share in the disputed plot executed by the plaintiff in favour of the defendant No. 1 and the defendant No. 2 Subhas a minor brother of the scribe for a purported consideration of Rs. 2,000/-, describing the document to the plaintiff to be a deed of partition. On 2-3-1968 the defendant No. 1 threatened to dispossess the plaintiff from the suit land giving out that he had purchased the same from the plaintiff. The plaintiff thereafter took a certified copy of the said document and came to know of the fraud committed on him. The contents of the purported kobala were not read over or explained to the plaintiff. No consideration money was paid to him. Thereafter at the instance of respectable persons of the village the defendant No. 2 executed a deed of disclaimer dated 11-3-1968, through his guardian mother in favour of the plaintiff. The defendant No. 1 at first agreed to do so but ultimately refused. So, the plaintiff brought the suit on 29-3-1968.

3. The defendant No. 1 alone contested the suit. His defence in the written statement is a denial of the material allegations of the plaintiff relating to misrepresentation and fraud touching the disputed kobala dated 29-2-1968. His case is that he was a bargadar of the disputed land and the plaintiff asked him to purchase the said land. As he had no capacity to pay the entire amount of the price of Rs. 2,000/- settled, he purchased the disputed land jointly with the defendant No. 2. The plaintiff executed the kobala in question after being fully aware of the nature and contents of the document and taking the consideration money. The plaintiff filed a suit in collusion with the defendant No. 2 and some local people.

4. Both the courts below have decided in favour of the plaintiffs, substituted in place of the original plaintiff Daud Sk. who died during the pendency of the suit before he could depose at the trial. There is evidence of P. W. 1 Aulad Sk. son of deceased Daud Sk. that there was cordial relationship between his father and the defendant No. 1 whom he used to call 'son', that his father did not sell the disputed land to the defendants Nos. 1 and 2 and did not take any consideration money from them. His further evidence is that after the execution of the kobala in question the defendant No. 1 cut the ail dividing the disputed plot that after coming to know from his father about the circumstances in which the defendant No. 1 got the kobala executed by his father, he called the villagers and obtained a certified copy of the disputed kobala and that the guardian of the defendant No. 2 executed a nadabi deed in favour of Daud Sk. P. W. 1 has challenged the disputed kobala as void. There is also evidence of P. Ws. 1 to 4 to the effect that Daud Sk. told them that the defendant No. 1 requested him to execute a partition deed but got a sale deed executed by practising fraud on him. The learned Munsif has expressed the view that such evidence of the statement of a dead person is not admissible. But the learned Subordinate Judge has differed from the trial court op this point and relied on such evidence. The learned advocate appearing for the appellant has assailed the view of the appellate court regarding admissibility of the statement of the deceased Daud Sk. made to p. Ws. 1 to 4. In my opinion, the correct position in law is that evidence of the statement of the deceased Daud Sk. is not admissible to establish the truth of the facts stated as it is hit by hearsay rule and does not come within any of the exceptions mentioned in Section 32 of the Evidence Act. But such evidence is admissible to establish the fact that such statement was made to consider the mental state and the subsequent conduct of P. Ws. 1 to 4 to whom it was made. In this connection. I may refer to the following passage from Phipson's Manual of Law of Evidence, 8th Edition at p. 21.

'Oral or written statements made by persons other than the witness who is testifying are not receivable to prove truth of the facts stated. Evidence of such statements is said to be hearsay evidence and except in the case hereinafter mentioned, hearsay evidence is not admissible'.

However,

'Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement it is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. The fact that the statement is made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presence the statement was made.' Subramaniam v. Public Prosecutor. (1956) 1 WLR 965 at p. 970 (P. C.) . From this it will appear that in deciding whether evidence is admissible of what someone, other than the testifying witness said or wrote, the test is the purpose for which the evidence is tendered. So, if both the making of a statement by X, and the truth of its contents are facts in issue, evidence of what X said may be tendered in proof of the former fact, but the truth of the contents will still have to be proved by other evidence.'

5. The evidence of P. W. 3 is that after Daud Sk. made a statement as to how the disputed kobala came into existence. P. W. 3 advised him to call the villagers. According to P.Ws. 1, 3 and 4 there was a meeting of the villagers over the issue and thereafter the guardian mother of the minor defendant No. 2 executed a nadabi deed in respect of his share of the disputed land in favour of Daud Sk.

6. The learned advocate for the appellant has submitted that the observation of the learned Subordinate Judge that the defendant No. 1 has admitted that he used to call the plaintiff (Daud Sk. 'father' is erroneous as the defendant No. 1 deposing as P. W. 2 has denied in his evidence that he used to call Daud Sk. 'father'. It is furthersubmitted that the inference of cordial relationship between Daud Sk. and the defendant No. 1 based on such misreading of the evidence of the defendant No. 1 is clearly wrong. No doubt the said observation of the learned Subordinate Judge is erroneous. But the fact that there was cordial relationship between Daud Sk. and the defendant No. 1 is borne out by the unchallenged testimony of P. W. 1 who has deposed that this father (Daud Sk.) used to call the defendant No. 1 'son' and there was love and affection between them

7. The learned advocate for the appellant has contended that both the courts below have erred in using the admission made on behalf of the defendant No. 2 in the nadabi deed regarding the invalidity of the kobala in question against the defendant No. 1. This submission is well founded as the law is that when two or more persons have joint interests, admission by one of them may be used against the other provided it is made during the continuance of the joint interest in the subject matter to which the admission relates (See (1921) 25, Cal-WN 89. Nagendra Nath Ghosh v. Lawrence Jute Co. Ltd. at p. 94) : (AIR 1921 Cal 197 at p. 199).

8. But in my view, even if the evidence erroneously considered by the courts below is excluded there re-main the undeniable circumstances that Daud Sk. was a very old and illiterate villager, that there was cordial relationship between him and the defendant No. 1 that there is the fact of his making a statement, to P. Ws. 1 to 4 before his death about the defendant No. 1's getting the disputed kobala executed by him without payment of any consideration money after requesting him to execute a deed of partition (leaving aside the use of the evidence of such statement to establish its truth), that a meeting of the villagers was called by them after which the defendant No. 2 (minor brother of the scribe but des-scribed as major in the kobala) through his guardian mother executed a nadabi in favour of Daud Sk. and that he brought the present suit at the earliest opportunity to avoid the disputed kobala within a month of its execution. The aforesaid circumstances, in my view, furnish prima facie proof in support of the plaintiffs' case and shift the onus to the defendant No. 1 to prove that Daud Sk. executed the kobala in question after being aware of the nature and contents of the document and receiving the consideration money.

9. There can be no doubt that it is open to the heirs of the executant of a document to raise the plea of undue influence or fraud vitiating it (See Rash Behari Naskar v. Haripada Naskar, AIR 1934 Cal 762).

10. On the side of the contesting defendant there is no acceptable evidenceto show that the disputed kobala wasread over or explained to Daud Sk. orthat any consideration money was paidto him. It appears that the plea in thewritten statement that Daud Sk. wantedto sell the disputed land to the defendant No. 1 as he was the bargadar ofsuch land was given up during trial.Subodh Sarkar scribe of the disputeddocument has not been examined. Hisminor brother Subash is the joint purchaser in the document. D. W. 2 thedefendant No. 1 has stated in cross-examination that Subash was aged 7/8years. But he was described as majorin the document. D W. 1 Surya KantaMondal has been examined as a witness to the payment of consideration.He is a chance witness. In cross-examination he has stated that on that dayhe was very ill and while returningfrom the hospital after receiving treatment he sat in the sherista of thescribe. But his signature as a witnessdoes not appear in disputed kobala. Sohis testimony is extremely doubtful. Boththe Courts have rightly disbelieved him.D. W. 3 Dhirendra has been examinedto prove the negotiations for the disputed transaction. But his cross-examination shows that he is a tutored witness,D. W. 4 Satish Sarkar whose signatureas a witness appears in the disputedkobala was an assistant to another deedwriter. His evidence is that while hewas smoking in a shop, the defendantNo. 1 asked him to be a witness to thedocument. He has said in examination-in-chief. 'Subodh wrote the deed. Icannot say if there was anything beforeDaud put his signature.' In f(sic) Daudput his thumb impression. Thus evidence adduced on the side of the defendant in support of his case is unworthy of credit. Both the courts below have also rightly taken this view. It cannot be said that they would have taken a different view if they excluded from consideration the statement of the deceased Daud Sk. and the admission of defendant No. 2 in the nadabi deed. The contesting defendant, has failed to prove that the nature and contents of the disputed kobala were explained to the executant before execution or that consideration money was paid to him. The disputed kobala is vitiated by fraud practised on Daud Sk. and as the plaintiffs have exercised option to avoid the same, it is a void document. In any event, as the evidence on record is sufficient, this Court in second appeal has arrived at the necessary findings of fact in view of Section 103 of the Civil P. C. to avoid unnecessary remand.

11. I find there is no merit in this appeal. In the result, the appeal is dismissed. The decree of the Court below is affirmed though for reasons mentioned in this judgment.

12. There will be no order as to costs.


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