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Probadha Gaolini Vs. Banka Behari Mondal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1933Cal196
AppellantProbadha Gaolini
RespondentBanka Behari Mondal
Cases ReferredJames Skinner v. R.H. Skinner
Excerpt:
- .....the defendant should be directed to execute and cause to be registered a bond identical with the bond in suit, or to refund the money said to have been advanced by the appellant together with interest. the main facts admitted and found in the course of these proceedings are as follows:the plaintiff's mistress, probashi baishnabi sued the defendant for recovery of a certain sum of money said to have been advanced on a mortgage bond. in that suit the bond was said to have been lost. in fact it was alleged by probashi that it had been stolen from her by the defendant's son. the defendant denied liability and produced the bond before the court, bearing endorsements of payments, but in spite of these endorsements and in spite of the fact that the bond was produced from the defendant's.....
Judgment:

Patterson, J.

1. The suit out of which this appeal arises purports to be one for registration of usufructuary mortgage bond, but certain other alternative reliefs were also prayed for, namely, that the defendant should be directed to execute and cause to be registered a bond identical with the bond in suit, or to refund the money said to have been advanced by the appellant together with interest. The main facts admitted and found in the course of these proceedings are as follows:

The plaintiff's mistress, Probashi Baishnabi sued the defendant for recovery of a certain sum of money said to have been advanced on a mortgage bond. In that suit the bond was said to have been lost. In fact it was alleged by Probashi that it had been stolen from her by the defendant's son. The defendant denied liability and produced the bond before the Court, bearing endorsements of payments, but in spite of these endorsements and in spite of the fact that the bond was produced from the defendant's custody, the trial Court decreed Probashi's suit, from which it may be inferred that the trial Court believed Probashi's allegation that the bond had been stolen from her possession and that the endorsements were forgeries. It was therefore clear that unless that decree was set aside, the defendant and her witnesses ran a very great risk of criminal proceedings being instituted against them. Against that decree the defendant preferred an appeal, but when the appeal came on for hearing, a compromise petition was filed in which it was prayed that the appeal be allowed and the suit dismissed on a declaration that the plaintiff was not entitled to recover anything on the basis of the bond in suit. It appears that throughout the proceedings referred to above, the plaintiff was present both in the trial Court and in the Court of appeal, that he looked after the suit on behalf of his mistress Probashi, and that the compromise petition was drafted and filed in his presence.

2. The decree in that suit was for Rupees 300, together with interest and costs, and the present proceedings relate to a sum of Us. 425 which the defendant borrowed from the plaintiff for payment to Probashi as consideration for the compromise as a result of which the decree in the aforesaid suit was set aside. In the present proceedings both the Courts below have in effect held that this sum of Rs. 425 was advanced by the plaintiff to the defendant and paid by the defendant to the plaintiff's mistress Probashi, partly in satisfaction of Probashi's decree and partly for the purpose of preventing the institution of the criminal proceedings to which the defendant and her witnesses had exposed themselves in connexion with the former suit. In the circumstances, and having regard to the fact that as the present plaintiff is Probashi's paramour and that he acted as her tadbirkar throughout the proceedings in the former suit and in connexion with the drafting and filing of the petition of compromise, it must, I think, be held that the object of the consideration for the bond in suit was an unlawful one, and that the plaintiff having been a party to a conspiracy for stifling a criminal proceeding is not entitled to any relief. The above finding is sufficient by itself for the disposal of this appeal, but certain other points have been urged on behalf of the appellant which may perhaps be briefly alluded to.

3. In the first place it is, I think, clear from certain recent decisions of this Court: [vide for example Dwijendra Narayan v. Jogesh Chandra : AIR1924Cal600 ] that although there may have been some difference of opinion in the past, it is now well settled that no other claim can be coupled with the prayer to enforce registration of a document under 8. 77, Registration Act. Then again it is the plaintiff's own case that the bond in suit had been tampered with, that the second page of the document as it now stands is not the same as the second page of the document as it stood at the time of the execution, (though the wording is said to be identical) and that some other thumb impression has been substituted for the thumb impression of the defendant. The trial Court was of opinion that the document had been tampered with while it was in the possession of the defendant's son, but the lower appellate Court, while differing from the trial Court on this point, has not recorded any clear finding as to whether the document was tampered with while it was in the defendant's custody or at some other time. It may further be said that the findings of the lower appellate Court do not altogether exclude the possibility of the document not having been tampered with at all, as is now alleged by the plaintiff, the allegation of its having been tampered with not having been made until after the expert who was examined before the District Sub-Registrar had expressed his opinion that the thumb impression on the second page was not the thumb impression of the defendant. Be that as it may, the document before the Court is, on the plaintiff's own showing, not the document which is said to have been executed by the defendant. The latter document has according to the plaintiff, ceased to exist in the form in which it was executed, and no suit can therefore be based upon the document now before the Court.

4. It may further be remarked that even apart from the consideration referred to above, it is very doubtful whether in the circumstances of the present case and in view of the fact that the bond has admittedly been tampered with, the plaintiff

could on a case properly alleged and proved recover back the actual money lent as money had and received to his use: vide the concluding portion of the judgment of Rankin, J., in the cage of Dula Meah v. Abdul Rahman : AIR1924Cal452 .

5. In this connexion reference may also be made to the case of Goor Chandra Das v. Prasanna Kumar (1906) 33 Cal 812. Lastly it is clear that even if the bond in suit had not been tampered with, it ought not to have been received in evidence for the purpose of proving the existence of an agreement between the parties, or of proving that the said agreement was of the nature set forth therein, James Skinner v. R.H. Skinner AIR 1929 PC 269. It is moreover extremely doubtful whether in the circumstances of the present case, and having regard to the provisions of Sections 91 and 65, Evidence Act, it would have been proper to allow any secondary evidence regarding the nature of the alleged agreement to have been given in these proceedings. In any view of the matter therefore this appeal must be and accordingly is, allowed and the plaintiff's suit is dismissed. In view of the dishonest nature of the defences raised by the defendant, and of the fact that the defendant herself was a party to a conspiracy to stifle criminal proceedings, I direct that both parties should bear their own costs in all Courts.


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