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PETITIONER: ARJAN SINGH alias PURAN

       Vs.

RESPONDENT: KARTAR SINGH AND OTHERS.

DATE OF JUDGMENT: 02/03/1951

BENCH: AIYAR, N. CHANDRASEKHARA BENCH: AIYAR, N. CHANDRASEKHARA FAZAL ALI, SAIYID MUKHERJEA, B.K.

CITATION:  1951 AIR  193            1951 SCR  258  CITATOR INFO :  RF         1963 SC1526  (9)  F          1974 SC2069  (5)  RF         1976 SC1053  (10)

ACT:      Civil  Procedure Code, 1908, O. XLI, r.  27--Additional evidence  --Improper admission--Finding based on  such  evi- dence--Whether  conclusive--Interference--Punjab Custom  Act (H  of 1920), s. 7-Suit to contest alienation of  non-ances- tral property--Maintainability.

HEADNOTE:      The discretion to receive and admit additional evidence in  appeal  is not an arbitrary one but is  a  judicial  one circumscribed by the limitations specified in O. XLI, r. 27, of the Civil Procedure Code, and if additional evidence  was allowed to be adduced contrary to the  principles  governing the  reception of such evidence, it would be a case  of  im- proper  exercise of discretion, and the additional  evidence so  brought  on the record will have to be ignored  and  the case decided as if it was non-existent. 259     The  legitimate occasion for admitting  additional  evi- dence  in  appeal is when on examining the  evidence  as  it stands some inherent lacuna or defect becomes apparent,  not where  a discovery is made outside the court, of fresh  evi- dence,  and an application is made to import it.   The  true test  is  whether the appellate court is able  to  pronounce judgment  on  the materials before it, without  taking  into consideration   the   additional  evidence  sought   to   be adduced.Kessowji Issur v.G. 1. P. Railway (34 I.A. 115)  and Parsotim v. Lal Mohan (58 I.A. 254) referred to.     Though ordinarily a finding of fact, however  erroneous, cannot  be challenged in second appeal, a finding  which  is arrived  at on the basis of additional evidence which  ought not  to have been admitted and without any consideration  of the  intrinsic  and palpable defects in the nature  of  such evidence cannot be accepted as a finding which is conclusive on appeal.     Under  s.  7  of the Punjab Act II of 1920  no  one  can contest  an alienation of non-ancestral immoveable  property

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on the ground that such alienation is contrary to custom.

JUDGMENT: CIVIL APPELLATE  JURISDICTION :  Appeal (Civil Appeal No. 31 of 1950) against a judgment and decree dated 28th  February, 1946, of the High Court of Judicature at  Lahore in  Regular Second Appeal No. 887 of/942.     Ram  Lal  Anand (Harbans Lal Mittal, with him)  for  the appellant.     Bakshi  Tek Chand (P.S. Safeer, with him) for  the’  re- spondents.     1951.  March 2. The Judgment of the Court was  delivered by CHANDRASEKHARA  AIYAR J.--The plaintiff, Arjan  Singh  alias Puran, brought a suit in the court of the Subordinate Judge, Jullundur,  against Inder Singh, Kartar Singh and five  oth- ers,  for  a declaration that a will executed by  the  first defendant,  Inder Singh, in favour of the second  defendant, Kartar  Singh,  about  14 years ago was  null  and  void  as against the plaintiff, who was the first defendant’s  rever- sionary  heir after his death.  The plaint comprised a  half share of land measuring 395 kanals in the village of Kadduw- al, 34 260 another  half  share  of land measuring 837  kanals  and  11 marlas  in the village of Pattar Kalan, and four  houses  in the latter village.  In the pedigree attached to the  plaint showing  the  relationship  of the  parties,  the  plaintiff claims Sehja Singh as his 4th ancestor. Jodha Singh and  Jai Singh  are  shown as Sehja Singh’s sons.  Defendant  No.  1, Inder  Singh, is Jodha Singh’s grandson. It is alleged  that the parties are Jar agriculturists governed by the customary law  in  matters  of alienation of  ancestral  property  and succession, and that as a sonless proprietor under this  law is not competent to make a will in respect of his  ancestral property,  when there are collaterals up to the 5th  degree, and  as  the entire property  mentioned in  the  plaint  was ancestral, the will made by the first defendant in favour of the second defendant who claimed to have been adopted by the first  defendant was invalid and ineffectual. Plaintiff  was born  on 22nd July, 1919, and was a minor when the will  was made, and so the suit was within time.     The  suit was contested mainly by the second  defendant, Kartar Singh, who set up his adoption, and pleaded that  the properties  were not at all ancestral as regards the  plain- tiff. Defendants 3 to 7 remained ex parte.     At the trial, it was admitted that the land situated  in Kadduwal  was not proved to be ancestral.   The  Subordinate Judge held that even the land in Pattar Kalan was not  shown to  be  ancestral  by the evidence adduced on  the  side  of plaintiff,  as it was found that the common ancestor,  Sehja Singh,  had  not only two sons called Jodha  Singh  and  Jai Singh,  but a third son named Pohlo, and that from the  mere fact that the two sons enjoyed the land in equal shares,  no presumption could arise that the property was ancestral  and descended  by  inheritance from the  common  ancestor,  when nothing  was  known  about the share of the  third  son.  He recorded  findings in favour of the plaintiff on the  issues as  to  adoption and limitation, but he also held  that  the plaintiff had no locus standi to contest the validity of the adoption as the period of limitation 261

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had expired long before he was born. In the result, the suit was dismissed.     The  plaintiff preferred an appeal to the court  of  the District  Judge.  He filed an application under  Order  XLI, rule’27, and section 151, Civil Procedure Code, for leave to adduce additional evidence. The document he  wanted to  be taken on record and considered, and of  which it  was alleged that he was not aware at the trial, was a kami beshi statement relating’ to Mauza Pattar Kalam, which contained a note that the third son, Pohlo, gave up his interest in  the ancestral property in favour of his brothers.  A copy of the statement  was filed along with the appeal memorandum.   The application was naturally opposed on behalf of the  contest- ing  defendants who urged that the plaintiff  appellant  had ample  opportunity to produce all his evidence in the  lower court  to prove that the  property  was ancestral  and  that the  entry  on which reliance was now sought  to  be  placed appeared on the face of it to be a forged one.  The District Judge  posted  the application to be heard  along  with  the appeal itself.  On the 17th March 1942, that is, even before he heard the appeal, the District Judge allowed the applica- tion. Referring to the two entries found in the naqsha  kami beshi  prepared in 1849-50 and the muntakhib asami-war  pre- pared in 1852, which stated that Pohlo had relinquished  his ancestral  share,   he  observed: "These two  entries  taken together, if found genuine, would enable the Court to arrive at a just conclusion.  It is, therefore, in the interest  of justice  that  the additional evidence should be let  in.  I have  taken action under Order XLI, rule 27 (1) (b), of  the Civil Procedure Code.  This additional evidence would supply material to remove the defect pointed out in the judgment of the court below, why two of the sons of Sehja Singh came  to own equal shares of land of Pattar Kalan in  the presence of their  3rd  brother".    He permitted the  parties  to  call evidence  relating to the two documents. Two witnesses  were examined on the side of  the appellant.  Munshi Pirthi  Nath is  the  clerk in the D.C’s office, Jullundur City,  and  he brought  the 262 record  of rights for the village Pattar Kalan  prepared  at the time of the settlement of 1849-50.  Munshi Niaz Ahmad is the  office Qanungo in the Jullundur Tahsil and  he  brought the  rauntakhib asami-war of the record of rights  preserved at the Tahsil Office.  Both of them gave evidence about  the relevant entries found in the registers.     The District Judge reversed the decision of the Subordi- nate Judge and decreed the plaintiff’s suit on the  strength of  this  additional  evidence.  He held  that  the  entries relied on for the appellant were genuine and not forged  and that as Pohlo had relinquished his share, the land in  Manza Pattar  Kalan was ancestral qua the plaintiff.   He  further found that the suit was not barred and was within time under article  120  of  the Indian Limitation Act,  but  that  the adoption  set up by the second defendant was not  true.   As the  custom of the district did not permit a  proprietor  to will away any portion of his property, whether ancestral  or self-acquired,  the  plaintiff had, in the  opinion  of  the District  Judge, a right to contest the will.  On the  basis of  these findings, he decreed the plaintiff’s suit  in  its entirety,  including  the lands in the village  of  Kadduwal which were conceded to be nonancestral and also an area of 4 bighas and 16 biswas of land in Pattar Kalan which,  accord- ing  to the record of rights, was not in the  possession  of Jodha Singh and Jai Singh, but with third parties.     Kartar  Singh, the second defendant, took the matter  on

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second appeal to the High Court.  The learned Judges of  the High Court held that there was nothing to show that the land in  Pattar Kalan was ancestral and that the  District  Judge was  not justified in admitting additional evidence  in  the shape  of the nabsha kami beshi and the muntakhib  asami-war records.  They  further pointed out that even a  superficial observation  of  the original documents  led  one irresisti- bly to the conclusion that the entry regarding  Pohlo giving up  his share was a subsequent interpolation.  They came  to the conclusion, therefore, that the entire land situated  in Pattar Kalan 263 was  also non-ancestral and that the suit should  have  been dismissed  in toto, inasmuch as under section 7   of Act  II of 1920, no person is empowered to contest any alienation of non-ancestral   immoveable property on the ground that  such alienation   is   contrary  to  custom.   In view  of   this finding, no  other question arose in the case for  decision. Leave  was,  however, granted to appeal to  His  Majesty  in Council and this is how this appeal is now before us.   It  was strenuously argued by the learned counsel for  the appellant  that it was not open to the High Court to  inter- fere with the discretion exercised by the District Judge  in allowing  additional evidence to be adduced  and that   even assuming  that  there was an erroneous finding of  fact,  it must stand final as a second appeal can be entertained  only on  the  specific grounds mentioned in section  100  of  the Civil Procedure Code.  There is, however, a fallacy underly- ing  this  argument.  The discretion to  receive  and  admit additional evidence is not an arbitrary one, but is a  judi- cial one circumscribed by the limitations specified in Order XLI, rule 27, of the Civil Procedure Code. If the additional evidence  was allowed to be adduced contrary to the  princi- ples governing the reception of such evidence, it would be a case of improper exercise of discretion. and the  additional evidence  so brought on the record will have to  be  ignored and the case decided as if it was non-existent.  Under Order XLI,  rule 27, it is the appellate court that  must  require the  evidence to enable it to pronounce judgment.   As  laid down by the Privy Council in the well-known case of Kessowji Issur  v.G. I. P. Railway(1)’ "the legitimate  occasion  for the application of the present rule is when on examining the evidence  as ii stands, some inherent lacuna or  defect  be- comes  apparent, not where a discovery is made, outside  the court,  of  fresh evidence and the application  is  made  to import it;" and they reiterated this view in stronger  terms even  in  the later case of Parsotim v. Lal Mohan  (2).  The true  test,  there fore, is whether the appellate  court  is able to pronounce (1) 34 I. A. 115       (2) 58 I. A. 254 264 judgment  on  the materials before it  without  taking  into consideration the additional evidence sought to be adduced.     In the present case, there is nothing to show that there was any lacuna or gap which had to be filled up and that the appellate  court felt the need for the omission  being  sup- plied  so that it could pronounce a judgment; to put it  the other way round, it does not appear, and it was not  stated, that  the  District Judge felt himself unable to come  to  a decision  without  copies of the settlement  registers  that were sought to be put in before him for the first time.   On the other hand, the District Judge made up his mind to admit the certified copies of the kami beshi and muntakhib  asami- war  registers  even before he heard the appeal.  The  order allowing  the appellant to call the additional  evidence  is

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dated 17th March, 1942.  The appeal was heard on 24th April, 1942.  There was thus no examination of the evidence on  the record and a decision reached that the evidence as it  stood disclosed a lacuna which the court required to be filled  up for  pronouncing its judgment.  In the  circumstances,   the learned Judges of the High Court were right in holding  that the  District  Judge was not justified  in   admitting  this evidence  under Order XLI, rule 27.   Even  conceding that the reception of additional  evidence was  proper, the District Judge has failed to  consider  the inherent infirmities of the entries in the settlement regis- ters relied on. for the appellant and the several criticisms that could justly be levelled against them for showing  that they were spurious.  He took the entries to be genuine.  The only  reason assigned by the learned Judge for treating  the entries to be genuine and not forged appears to be that  the records  had  all  along remained  in  proper  custody.   As against  this  rather  perfunctory remark we  must  set  the following  observations  of the learned Judges of  the  High Court:     "Even  a superficial observation of the  original  docu- ments  leads  one irresistibly to the conclusion  that  this entry was a subsequent interpolation.  In 265 naqsha kami beshi there was alrerady a remark in that column and  the  remark relied upon which has very  awkwardly  been inserted  there is with a different pen and in  a  different ink.   It is even impossible to read it  clearly.   Further, although  there are 2 or 3 other places  where the names  of Jodha  and  Jai Singh appear, no such remark has  been  made against them.  It may also be observed that though a  corre- sponding  remark  appears in the column of sharah  lagan  in muntakhib   asami-war where it is evidently out of place  in the  copy  retained in the Tahsil Office, there is  no  such remark  in the copy which is preserved at the Sadar  Office. Even  otherwise it does not stand to reason why a remark  to this  effect should have been made in this column.  The  way in  which these entries were said to have  been traced  also throws a lot of suspicion on their genuineness."     We find ourselves in entire agreement with these  obser- vations  of the learned Judges.  It is no doubt true that  a finding of fact, however erroneous, cannot be challenged  in a  second  appeal,  but a finding reached on  the  basis  of additional  evidence which ought not to have  been  admitted and without any consideration whatever of the intrinsic  and palpable  defects  in the nature of the  entries  themselves which  raise serious doubts about their genuineness,  cannot be  accepted as a finding that is conclusive in  second  ap- peal.     If  the additional evidence is left out of account,  the appellant  has  practically no legs to stand on.   There  is nothing  to  show that the common ancestor Sehja  Singh  was possessed  of  the Mauza Pattar Kalan properties  which  are found subsequently entered in the name of two sons in  equal shares,  with nothing said about the share of the third  son Pholo.   As a matter of fact, the pedigree table shows  that there  was a fourth son called Hamira.  If the property  had been  entered in the registers in the names of all the  sons in equal shares, there might be some ground, however feeble, for presuming that the property was ancestral as alleged  by the plaintiff.  There is nothing to show 266 that  the common ancestor owned the land and that  his  sons got it from him by inheritance in equal shares.     The  District Judge was obviously wrong when he  decreed

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the plaintiff’s suit even with reference to the     lands in Kadduwal  conceded  to  be non-ancestral and   the  land  in Khasra No. 2408 measuring 4 bighas and 16 biswas, which  was not  in the possession of the two sons Jodha Singh  and  Jai Singh.  He was equally wrong  in holding that the  customary law  which governed the parties did not permit the owner  to will away any portion of the property, whether ancestral  or self-acquired;  this is contrary to section 7 of Punjab  Act II of 1920, which is in these terms:     "Notwithstanding  anything to the contrary contained  in section  5, Punjab Laws Act, 1872, no person  shall  contest any  alienation of non-ancestral immovable property  or  any appointment  of  an heir to such property  on   the   ground that such alienation or appointment is contrary to custom."      No other point arises in this appeal which fails and is dismissed with costs in all the courts. Appeal dismissed. Agent for the appellant: Ganpat Rai. Agent for the respondents: S.P. Varma.