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Sm. Saraswati Devi Vs. Bahadur Lal Missir - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1939Cal183
AppellantSm. Saraswati Devi
RespondentBahadur Lal Missir
Cases ReferredPrabal Chandra v. Peary Mohan
- .....a joint award in favour of two persons, bahadur lal missir, and sm. saraswati debi, widow of one gouri sankar missir. the former is described as claimant no. 1 and the latter as claimant no. 2 in these proceedings. the sum was awarded as the value of certain structures which stood on premises no. 9/12, kalakar street, which had been acquired on behalf of the calcutta improvement trust in connexion with scheme no. 42, kalakar street widening. the learned president by his order directed the whole of the compensation to be paid to claimant no. 1 on the footing of a mortgage which he had set up. hence the present appeal by claimant no. 2. it appeared that before the land acquisition collector claimant no. 1 had claimed compensation as owner of the structures but before the tribunal he.....

Biswas, J.

1. This is an appeal from a decision of the President of the Calcutta Improvement Tribunal in an apportionment case. The dispute is as regards a sum of Rs. 7245 in respect of which the Land Acquisition Collector had made a joint award in favour of two persons, Bahadur Lal Missir, and Sm. Saraswati Debi, widow of one Gouri Sankar Missir. The former is described as claimant No. 1 and the latter as claimant No. 2 in these proceedings. The sum was awarded as the value of certain structures which stood on premises No. 9/12, Kalakar Street, which had been acquired on behalf of the Calcutta Improvement Trust in connexion with Scheme No. 42, Kalakar Street widening. The learned President by his order directed the whole of the compensation to be paid to claimant No. 1 on the footing of a mortgage which he had set up. Hence the present appeal by claimant No. 2. It appeared that before the Land Acquisition Collector claimant No. 1 had claimed compensation as owner of the structures but before the tribunal he changed his case and based his claim on a mortgage executed in his favour by Gouri Sankar. There was some argument before the learned President as to whether on a reference made by the Collector under Section 30, Land Acquisition Act, a party could be allowed to change his case in this way. That argument was renewed here on behalf of the appellant, and it was contended that on the hearing of such a reference, the Court, which is the tribunal in this case, is restricted to a consideration of the specific claims which might have been put forward by the parties before the Collector. It was pointed out that Section 30 contemplates a dispute' arising before the Collector, and a decision of 'such dispute' by the Court, not a new dispute raised before the Court for the first time. We are not quite satisfied as to the cogency of this argument, which was sought to be supported by reference to certain decisions of this Court, including the case in Abu Bakar v. Peary Mohan (1907) 34 Cal. 451 and the case in Prabal Chandra v. Peary Mohan (1908) 12 C.W.N. 987. These decisions however do not touch the point, but it is not necessary for us to express any definite opinion on the question, having regard to the conclusions we have arrived at on the merits of the case.

2. The mortgage set up by claimant No. 1 is attacked by the appellant before us on a variety of grounds; but the most substantial one - and it is a ground which, if substantiated, is sufficient to dispose of the case - is that at the date the mortgage is alleged to have been executed by Gouri Sankar, husband of claimant No. 2, he was a minor. There was a specific issue raised on this question. The learned President says that as the mortgage was a registered document, there was a presumption that at the time Gouri Sankar had executed it, he was a major and not a minor. The learned President does not advance any reasons or cite any authority in support of this dictum, but the learned advocate for the respondent referred us to the provision of Section 35(3), Clause (b), Registration Act. That Section merely provides that the registering officer shall refuse to register a document, if any person by whom the document purports to be executed appears to the registering officer to be a minor, an idiot or a lunatic. At best therefore all that can be said is that at the time the document was presented for registration, the executant or the person who put forward the document before the registering officer appeared to him to be a major. This is very far short of a statutory presumption such as the learned President seems to postulate. We do not think however that it would make any difference in the present case as to whether the learned President was or was not right in the view he took as regards any such presumption arising in favour of the mortgagee from the fact of registration, because it is conceded by the learned advocate on behalf of claimant No. 2 that the-burden of proving the minority of Gouri Sankar lay on his client.

3. It is necessary therefore to examine how the matter stands on the case made out in> this behalf by Saraswati. Gouri Sankar was the son of one Santa Lal Missir, and admittedly he had a younger brother named Lachmi Narayan who has been actually examined as a witness in this case on behalf of claimant No. 1. According to the evidence of claimant No. 1, Lachmi Narayan.' was younger than Gouri Sankar by 13 or 14 years. The appellant produced two certified copies obtained from the Corporation,' of Calcutta of extracts from the Birth Register maintained by the corporation relating to the birth of two male issues of one Santalal. These are Exs. D and E, printed at pp. 1-5(b) of part 2 of the paper-book. It is not disputed by the respondent that Santalal referred to in these two extracts is the father of Gouri Sankar andl Lachmi Narayan. The dates of birth shown in these two exhibits are 26th May 1903, and 24th March 1917, respectively. If therefore any of these birth certificates can be connected with Gouri Sankar, his age will be definitely established at once, and it would not be necessary to go into the oral testimony on the point which from the nature of things cannot be regarded as equally satisfactory. The point arising out of these birth certificates reduces itself shortly to this as to whether Santalal had only two sons. If he had two sons, then these two birth certificates must refer to these two sons, namely Gouri Sankar and Lachmi Narayan. Mr. Das on behalf of claimant No. 1 has strenuously contended and that is also the view which found favour with the learned President, that there is no evidence on the record to show that Santalal had not more than two sons.

4. Now, the position regarding this matter is this : Saraswati filed a statement of claim before the President, and in para. 2 of that statement which was filed on 10th September 1935, she categorically stated that Mt. Lali Bibi was the mother of Gouri Sankar, and that Lachmi Narayan was the only other issue and the younger son of the aforesaid Lali Bibi. That statement was made not with reference to the question of minority of any of the sons but in the course of recital of the circumstances under which the structures in dispute devolved on Gouri Sankar. Claimant No. 1, Bahadur Lal Missir, subsequently filed his statement of claim, or written statement, as it is called. That statement opens by saying that 'save and except what is expressly admitted herein, this claimant denies all the allegations made by claimant No. 2 and puts her to the strict proof thereof'. It seems to be fairly obvious on a plain reading of this that this statement was made with reference to the averments in the statement of claim filed by Saraswati on 10th September 1935, and it contained no denial of the facts set out in para. 2 thereof. Mr. Das referred us to the order sheet to show that there is nothing to indicate that a copy of Saraswati's statement was supplied to Bahadur Lal or that Bahadur Lal was called upon to traverse the allegations made in Saraswati's statement. That may be so. All the same, the way Bahadur Lal puts the matter in his own statement suggests that he took it upon himself to reply to the allegations contained in the statement of Saraswati. It is worth while pointing out in this connexion what the learned President himself says in this case in Order No. 15 dated 18th December 1935 at pages 3 and 4 of the paper book, where he applies the ordinary rules of pleading to impute to claimant No. 2 an admission regarding the mortgage from the absence of any denial in her written statement of the allegations made by the other claimant concerning the same.

5. Apart from that, even if there was no obligation on the part of Bahadur Lal to specifically traverse the allegations made by Saraswati, there can be no doubt that in course of the trial Bahadur Lal came to be aware of the state of facts set out by Saraswati in her statement. If that be so, it should have been realized at the moment the birth certificates were put in how important it was for claimant No. 1 to prove, if he could, that Santalal had really more than two sons. No attempt however appears to have been made on his behalf to offer such evidence or to ask for an opportunity to do so. Mr. Das complains that these birth certificates were put in at a very late stage, almost when the case was closed. The order recorded under date 22nd June 1936 shows no doubt that the two birth certificates were put in after the witnesses on behalf of claimant No. 2 had been examined. The case however was not closed on that date, but it stood adjourned to 24th June, on which date it was resumed and it appears that claimant No. 1 actually put in new documentary evidence on his own behalf on that date. It was thereafter that the case was closed. But between 22nd and 24th June there was ample time and opportunity to claimant No. 1, if he so desired or was so advised, to be ready with evidence for the purpose of rebutting the evidence of the two birth certificates. Even if he was not ready with such evidence, it was open to him to apply to the Court to give him time to produce further evidence if he wanted to. Bahadur Lal did nothing of the kind. That shows to our mind taking all the facts and circumstances appearing on the record as it stands, that he was not in a position) to counter the effect of the birth certificates. Mr. Das has asked that an opportunity should be given to his client now to adduce evidence, if he can, to show that Santalal had more than two sons and that none of the birth certificates might refer to Gouri Sankar at all. He did not say that Bahadur Lal had any such evidence in his possession, and we do not think we should be justified in acceding to his prayer. Mr. Das has referred us to the other evidence on record, oral and documentary for the purpose of showing that Gouri Sankar was really a major at the time of the mortgage. It is not however necessary to go into this at all, because if the birth certificates are accepted, that in our opinion concludes the matter.

6. In our opinion the birth certificates produced refer to the two sons of Santalal, Gouri Sankar and Lachmi Narayan. Taking, the date in the earlier certificate, the 26th May 1903, and taking it to refer to Gouri Sankar, it follows accordingly that on the date the mortgage was executed, namely on 12th March 1921, Gouri Sankar was a minor. In that view, the mortgage must be held to be a void transaction, and the claim put forward on the basis of the mortgage on behalf of Bahadur Lal must consequently fail. In the view we have taken, we do not think it necessary to go into the other questions raised in the judgment of the learned President. We accordingly set aside his judgment and direct that in lieu of the order made, there will be an order for payment of the whole of the compensation to the appellant, Saraswati.

7. Before we part with the case, we deem it necessary to refer to the very unsatisfactory state of things which the order sheet in the case discloses regarding the conduct of the trial. This was a simple apportionment case, and should not have detained either the Court or the parties for the length of time it was actually allowed to drag on. The case started on 12th July 1935 when notices were ordered to be issued to the parties. A written statement was filed by one of the parties on 10th September 1935, and another on the 24th of that month. A number of adjournments then followed for 'want of time' as recorded in the order sheet. The question of settlement of issues was finally taken up on 17th December 1935. This led to a prolonged argument, and in the result, a further written statement was called for from claimant No. 2. This was followed by another hearing for the purpose of formally settling the issues, including the issues which arose upon the further written statement. The issues were finally settled on 12th February 1936, and the case was actually taken up on that day. In fact, one witness was examined in part on behalf of claimant No. 1 on 12th February. For certain reasons which do not appear to be sufficiently explained, the hearing was suspended for a month and a half thereafter. It was actually resumed on 31st March 1936. On that date however instead of continuing and concluding the examination of witness 1 on behalf of the claimant, a new witness was allowed to be put into the witness-box. This was done, in spite of opposition on behalf of claimant No. 2 who in fact put in a petition recording her objections. To that there was a counter-petition filed on behalf of claimant No. 1. The matter was not however decided by the learned President at the time, but he simply recorded an order that both the petitions should be kept on the record to be dealt with at the time of delivering judgment. At the time of delivering the judgment however this appears to have been wholly overlooked. This was really not a matter which should have been allowed to stand over, but ought to have been disposed of then and there one way or the other. In fact, the learned President should have disposed of the objection raised by claimant No. 2 before allowing witness 2 to be interposed in the middle of the examination of the first. It may be said that the learned President actually did so, but then we do not know the reasons which led him to adopt this unusual course. Be that as it may, quite apart from this irregularity, adjournments still continued to be a regular feature of the proceedings as before. Although witness 2 was examined on 31st March 1936, as stated, the further hearing of the case was not actually taken up until 8th May next. In the meantime, the parties must have been attending every day the case had been appearing in the list. Even after 8th May the hearing did not proceed from day to day. The order sheet shows that there were again a number of adjournments on the same ground as before, 'want of time'. The hearing was finally resumed on 20th June 1936, and then it was concluded on the 25th of that month when judgment was reserved. And then judgment was not delivered till about a month afterwards, i.e. 21st July 1936.

8. The position therefore is that a simple apportionment case which started on 12th July 1935 was not disposed of till 21st July 1936. A matter which ought not to have taken more than a month or two at the latest to dispose of was allowed to hang on for over a year, and even after the hearing commenced, it was adjourned any number of times. We do not consider this to be at all a satisfactory state of affairs. It neither conduces to respect for the administration of justice, nor fails to give the parties a legitimate sense of grievance that they are denied an adjudication for their rights for an indefinite length of time. Possibly as the tribunal has got to do valuation cases mostly, apportionment cases cannot be taken up from day to day, but certainly the learned President might arrange to expedite the hearing of such cases and avoid unnecessary adjournments as far as he can. It is not desirable to take up a number of cases on a particular day for final hearing, dealing with each only piecemeal and then allowing it to spread itself over a period of several weeks or months, with any number of adjournments to interrupt the proceedings. It would certainly be a better practice to try and finish a case, land then take up a new one. The President of the Improvement Tribunal is a tribunal toy itself. If in any case a mofussil Court exhibited such laxity, it would have merited severe comment from this Court, but we certainly think such slackness ought not to be tolerated in the tribunal either. If it is possible to put matters on a more satisfactory basis by means of rules under the Calcutta Improvement Act, this should be done, and we desire that a copy of our remarks may be forwarded to the Local Government for necessary action.

9. The appeal is allowed with costs. We assess the hearing fee at 5 gold mohurs. There will be an order in terms of Order 33, Rule 10, Civil P.C., in favour of the Government for payment of court-fees by claimant No. 2 who will be entitled to recover the same from the respondent. The order for payment we have made in this case should not be construed to mean that the President is debarred from considering whether the matter should be dealt with under Section 31, Land Acquisition Act.

Edgley, J.

10. I agree.

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