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Futtehma Begum and ors. Vs. Mohamed Ausur and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1883)ILR9Cal309
AppellantFuttehma Begum and ors.
RespondentMohamed Ausur and ors.
Excerpt:
second appeal - findings of fact--procedure of the high court--interest--mortgage bond. - .....to be decided; the first was whether the bond sued upon was executed by ausur. as to that the judge of the lower appellate court said in his judgment at p. 15 of the paper book: 'it appears to me that the evidence as to ausur's signature to the bond is most unsatisfactory, and that that signature is in no way proved; (section 67)1 evidence act.' if that finding stood by itself it might probably be that we should not interfere with it, but it clearly refers to an earlier paragraph in the judgment, and that earlier paragraph shows that the reason why the lower appellate court was dissatisfied with the evidence of the witnesses was that he did not think they were present at the time, for he observes that not one of them says that he saw ausur execute the bond; in other words he.....
Judgment:

Wilson, J.

1. It is not the ordinary course of procedure for this Court to interfere in 2nd appeal with any findings of fact which have been arrived at by the lower Appellate Court; but we are well within the scope of the authorities in holding that where the lower Appellate Court has clearly misapprehended what the evidence before it was, and has thus been led to discard or not give sufficient weight to important evidence, and to give weight to other evidence to which it is not entitled, and has thus been led not into any mere incidental mistake, but totally to misconceive the case, this Court may interfere. Now in this case there were several material questions to be decided; the first was whether the bond sued upon was executed by Ausur. As to that the Judge of the lower Appellate Court said in his judgment at p. 15 of the Paper Book: 'It appears to me that the evidence as to Ausur's signature to the bond is most unsatisfactory, and that that signature is in no way proved; (Section 67)1 Evidence Act.' If that finding stood by itself it might probably be that we should not interfere with it, but it clearly refers to an earlier paragraph in the judgment, and that earlier paragraph shows that the reason why the lower Appellate Court was dissatisfied with the evidence of the witnesses was that he did not think they were present at the time, for he observes that not one of them says that he saw Ausur execute the bond; in other words he understands them not as speaking of something which was done while they were present, but of a transaction, the description of which they had heard from others. It appears to us that this is a clear misapprehension on the part of the Judge, and that these witnesses clearly intended to speak as of a thing they had themselves seen. That seems to us clear from their direct examination, and in the case of several of them it is made still more clear from their cross-examination, from the tenor of which it seems to us that all parties present at the trial understood that they were speaking of a transaction effected in their presence. This misapprehension on the part of the Judge in the lower Appellate Court justifies us in remanding the case for him to reconsider his finding upon that point. The next point is as to the execution of the bond by Amzad on behalf of Shurifunnissa. As to that the case stands on precisely the same footing as it does as regards the execution of the bond by Amzad. Then there remains the question as to the existence of the mokhtarnama, under which it is said that Amzad executed the bond on behalf of Shurifunnissa, and there the Judge in the lower Appellate Court appears to us to have again fallen into somewhat similar errors. The most important witness as regards this is Gour Chunder Dass, and the learned Judge distrusts the evidence of this witness as to the mokhtarnama on the ground that it was not produced in the 1875 suit. That is an observation that would be entitled to great weight if it was suggested that it had been fabricated since 1875, but when it is clear on the evidence that it existed long before 1868, it appears that the Judge has been seriously misled. Then, again, speaking of the evidence of the same witness, he says that according to him the mokhtarnama was given by Shurifunnissa only and not by her and Ausur; and in this he finds a discrepancy between the evidence of this and the other witnesses. That is also clearly a mistake. The witness only says that a mokhtarnama on the part of Shurifunnissa was produced, and he is speaking of a time at which the only question of the slightest importance would be whether it was executed by Shurifunnissa. Ausur the husband went there to execute for himself, and the question was how was the wife represented. Then according to him the mokhtarnama on his behalf is produced to prove her authority for the execution of the bond. There is, therefore, a clear misapprehension on the part of the Judge as to the meaning of this evidence. Then speaking of the same document he says that one of the witnesses, Mohurrum Mir, to whom a power was given to register the document, and who may have been presumed to have some acquaintance with its contents, has been examined, but has not been asked a word about it, while it appears on the evidence that Mohurrum was examined about it, and made certain statements concerning it. These seem to be the considerations which led the Judge of the lower Appellate Court to reject the truth of the story as to this mokhtarnama, and as they seem to us to be founded on mistakes of fact, the learned Judge should have an opportunity of reconsidering his views. In remitting the case to him and asking him to reconsider his findings, we think it right to point out that the matters mentioned by him at page 18 with regard to the registration in 1868, and the use of the mokhtarnama during the same year, and the other evidence in the case as to the existence of this document at and about that time that these matters appear to us entitled to very great weight.

2. The case will, therefore, go back to the Judge in the Court below for reconsideration. That being so, it becomes necessary to deal with two questions that have been raised before us--one the question of certificate, and the other the question of interest. If the ultimate finding in the lower Appellate Court should be still in favour of the defendants, these two questions do not arise; otherwise they do. It was held in the lower Appellate Court that this suit could not be maintained for want of a certificate to the estate of Rabia. But on the facts of the case it does not appear to be so, because, under the exception in the section in question, no certificate is required when there is no doubt as to the title of the party claiming the money. Section 2, Act XXVII of 186Q says: 'Unless the Court shall be of opinion that payment of the debt is withheld from fraudulent or vexatious motives, and not from any reasonable doubt as to the party entitled.' Now if the plaintiff's story be true, then the defendants who deny their liability must be acting fraudulently, as there can be no reasonable doubt that all the parties who may be entitled to these sums of money are plaintiffs in the suit. Then the question of interest arises in this way. The Judge says (page 13 of the Paper Book): 'But for my finding on the certificate matter, and supposing the bond to be genuine, I should allow 18 per cent. per annum interest from the 10th April 1868 to the 10th October 1868, and (as damages) six per cent. per annum from the date on which the 1875 suit was instituted, to the date of decree in the present suit;' and so on: that is to say, he disallows the interest at the rate agreed in the bond for a certain very considerable period. That, it appears to us, is wholly irregular and contrary to law. If the bond be genuine, the plaintiffs are entitled to recover the agreed rate of interest without any deduction. It would be a grave injustice if it were not so, as the defendants would thereby be allowed to keep the money in their pockets without paying interest for it. The costs will follow the result.

3. As the case has been pending for a very long time, the record will be sent down at once.

1[See. 67: If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the hand-writing of so much of the document as is alleged to be in that person's hand-writing must be proved to be in his hand-writing.]

Proof of signature and hand-writing of person alleged to have signed or written document produced.


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