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PETITIONER: SARJU PERSHAD

       Vs.

RESPONDENT: RAJA JWALESHWARI PRATAP NARAIN  SINGH AND OTHERS

DATE OF JUDGMENT: 14/11/1950

BENCH: MUKHERJEA, B.K. BENCH: MUKHERJEA, B.K. FAZAL ALI, SAIYID MAHAJAN, MEHR CHAND

CITATION:  1951 AIR  120            1950 SCR  781  CITATOR INFO :  R          1960 SC 115  (13)  F          1974 SC  66  (55)  F          1983 SC 114  (8)  RF         1985 SC  89  (8)  RF         1988 SC 103  (12)  F          1988 SC1845  (18)

ACT:     Practice--Appellate court--Finding of fact depending  on credibility of witnesses--Interference--Correct principle.

HEADNOTE:    When  there is conflict of oral evidence of the  parties on  any  matter in issue and the decision  hinges  upon  the credibility  of  the witnesses, then unless  there  is  some special feature about the  evidence of a particular  witness which  has  escaped the trial judge’s notice or there  is  a sufficient balance of improbability to displace his  opinion as to where the credibility lies, the appellate court should not  interfere  with  the finding of the trial  judge  on  a question of fact.     It would not detract from the value to be attached to  a trial judge’s finding of fact if the judge does not express- ly base his conclusion upon the impressions he gathers  from the demeanour of witnesses.     The  rule is, however, only a rule of practice and  does not mean that the court of first instance can be treated  as infallible in determining which side is telling the truth or is refraining from exaggeration. [Where the High Court reversed a finding of fact arrived  at by the trial court depending on oral evidence on the  ground that  the  rule that the appellate court should be  s1ow  to differ  from the conclusions arrived at by the  trial  judge who  had seen and heard the witnesses did not apply  to  the case as the trial judge did not base his conclusions on  the impressions created in his mind by the witnesses who deposed before  him,  but  upon the inherent  improbability  of  the circumstances  deposed to ,the Supreme Court held  that  the high court’s approach to the case was not proper and,  after weighing the whole evidence in case reversed the finding  of the High Court.]

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   W.C. Macdonald v. Fred Latimer (A.I.R. 1929 P.C.15 at p. 18),  Watts v. Thomas ([1947] A.C. 484 at p.  486),  Sarave- eraswami  v.  Talluri  (A.I.R.  1949  P. C.  39.),   Nether- landsche   Handel  Maatschappij v.R.M.P. Chettiar  Firm  and Others (A.I.R. 1929 P.C. 202,205), referred

JUDGMENT: APPELLATE JURISDICTION: Civil Appeal No. LXX of 1949.     Appeal  from  the judgment of the Allahabad  High  Court (Verma and Yorke JJ.) dated the 22nd April, 1943. 100 782 M.C.  Setalvad, Attorney-General for India (Sri Narain  And- ley, with him), for the appellant.      P.L.  Banerjee  (H.  J. Urnrigal, with  him),  for  the respondents.    1950.  November 14.  The judgment of the Court was deliv- ered by.       MLKHERJEA J.--This is an appeal against a judjment and decree of a Division Bench of the Allahabad High Court dated April 22, 1943, which reversed on appeal those of the  Civil Judge of Basti dated 6th of November 1939.      The suit, out of which the appeal arises, was commenced by the plaintiff, whose successor the present appellant  is, to  recover a sum of Rs. 11,935 by enforcement of  a  simple mortgage bond.  The mortgage deed is dated the 8th of  March 1926  and  was  executed by Raja  Pateshwari  Partap  Narain Singh,  the then holder of Basti Raj which is an  impartible estate  governed by the rule of primogeniture, in favour  of Bhikhiram Sahu, the father of the original plaintiff Ramdeo, to secure a loan of Rs. 5,500 advanced  by the mortgagee  on hypothecation  of certain immovable properties  appertaining to  the estate of the mortgagor.  The loan carried  interest at the rate of 9 per cent per annum and there was a stipula- tion to pay the mortgage money within one year from the date of the bond.  The mortgagor and the mortgagee were both dead at the time when the suit was instituted, and the  plaintiff in  the  action  was Ramdeo Sahu, the son and  heir  of  the mortgagee, while the principal defendant was the eldest  son of the mortgagor who succeeded to the Basti estate under the rule  of  primogeniture.  It was stated in the  plaint  that absolutely nothing was paid by the mortgagor or his  succes- sor towards the mortgage dues and the plaintiff claimed  the principal amount of Rs. 5,500 together with interest at  the rate of 9 per cent. per annum up to the date of the suit.      A number of pleas were taken by the contesting  defend- ant  in answer to the plaintiff’s claim, most of  which  are not relevant for our present purpose.  The        783 substantial  contentions raised by the defendant were  of  a three-fold character.  In the first place, it was urged that the document sued upon was not a properly attested or valid- ly  registered document and could not operate as a  mortgage instrument  in law.  The second contention raised  was  that there was no consideration in support of the transaction, at least  to the extent of Rs. 2,000, which was represented  by items  3 and 4 of the consideration clause in the  document. The  third and the last material defence related to a  claim for relief under the United Provinces Agriculturists’ Relief Act.     The  trial Judge held in favour of the defendant on  the last  point mentioned above and negatived his  other  pleas. The result was that he made a preliminary decree for sale in

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favour of the plaintiff for recovery of the principal sum of Rs.  5,500 with interest at certain rates as are  sanctioned by the U.P. Agriculturists’ Relief Act; and agreeably to the provisions of that Act the decretal dues were directed to be paid in a number of instalments.     Against  this decision, the defendant took an appeal  to the  High Court of Allahabad which was heard by  a  Division Bench  consisting of Verma and York JJ. The  learned  Judges reversed  the judgment of the trial Judge and dismissed  the plaintiff’s suit on one ground only, viz., that the bond was not attested in the manner required by law and  consequently could  not  rank  as a mortgage bond; and as  the  suit  was instituted  beyond  6 years from the date of  the  bond,  no money decree could be claimed by the plaintiff.     It is against this judgment that the plaintiff has  come up  on appeal to this court, and the main contention  raised by the learned Attorney-General, who appeared in support  of the  appeal,  is  that in arriving at its  decision  on  the question  of  attestation,  the High  Court  approached  the matter from a wrong standpoint altogether and on the materi- als in the record it had no justification for reversing  the findings of the trial court on that point.     The question for our consideration is undoubtedly one of fact, the decision of which depends upon the 784 appreciation  of the oral evidence adduced in the  case.  In such cases, the appellate court has got to bear in mind that it has not the advantage which the trial Judge had in having the  witnesses  before him and of observing  the  manner  in which  they deposed in court. This certainly does  not  mean that  when an appeal lies on facts, the appellate  court  is not competent to reverse a finding of fact arrived at by the trial Judge. The rule is--and it is nothing more than a rule of  practice --that when there is conflict of oral  evidence of  the  parties  on any matter in issue  and  the  decision hinges  upon the credibility of the witnesses,  then  unless there  is some special feature about the evidence of a  par- ticular  witness which has escaped the trial Judge’s  notice or  there is a sufficient balance of improbability  to  dis- place  his  opinion as to where the  credibility  lies,  the appellate court should not interfere with the finding of the trial Judge on a question of fact(1). The gist of the numer- ous  decisions  on  this subject was clearly  summed  up  by Viscount  Simon in Watt v. Thomas(2), and  his  observations were  adopted  and  reproduced in extenso  by  the  Judicial Committee  in  a very recent appeal from  the  Madras   High Court(3).  The observations  are  as follows:     "But  if the evidence as a whole can reasonably  be  re- garded as justifying the conclusion arrived at at the trial, and  especially  if that conclusion has been arrived  at  on confliciting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the  trial Judge  as  to where credibility lies is  entitled  to  great weight.  This is not to say that the Judge of first instance can  be treated as infallible in determining which  side  is telling the truth or is refraining from exaggeration.   Like other tribunals, he may go wrong on a question of fact,  but it is a cogent circumstance that a Judge of first  instance, when     (1) Vide Lord Atkin’s observations in W.C. Macdonald  v. Fred Latinmer, AI.R. 1929 P.C. 15, 18. (2) [1947] A.C. 484. at p. 486. (3) Vide Saraveeraswami v. Talluri, A.I.R. 1919 P.C.p. 3’2.      785

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estimating the value of verbal testimony, has the  advantage (which is denied to Courts of appeal)of having the witnesses before him and observing the manner in which their  evidence is given."     It is in the light of these observations that we propose to  examine the propriety of the decision of the  s  learned Judges of the High Court in the present case. It will appear that  the mortgage deed besides containing the signature  of the  executant,  purports to bear the  signatures  of  three other  persons, two of whom are described as attesting  wit- nesses  and the third one as the scribe.  Harbhajan Lal  and Jawala Prasad Tewari purport to have signed the document  as attesting witnesses and Jawala Prasad Patwari is the  person who  has signed it as the scribe.  Jawala Prasad Tewari  was admittedly   dead when the suit was brought  and   Harbhajan Lal,   the  only surviving  attesting witness was called  on behalf  of the plaintiff to prove the execution of the  deed as is required under section 68 of the Indian Evidence  Act. Harbhajan Lal stated in the witness box that he did sign the document as a witness and so did Jawala  Prasad Tewari,  but neither of them signed it in the presence of the  mortgagor; nor  did  the  mortgagor sign in their  presence.   On  this statement being made, the witness was declared   hostile and he  was allowed to be cross examined by     the  plaintiff’s Counsel.  He was cross examined by    the defendant also and in  answer to the questions put  to him by  the  defendant’s lawyer, he stated that he signed the deed at the  Collector- ate Kutchery, meaning thereby the Bar Library, where he used to  sit as a petition writer and the document was  taken  to him  at that place by Bhikhi Ram Sahu, the  mortgagee,  Ghur Lal, a Karinda of the mortgagor, and Jawala Prasad  Patwari, the scribe.  Jawala Prasad Tewari signed the deed after him. The  mortgagor certainly did not come to that place and  his signature  was already on the deed when the  witness  signed it.     The  details  of  the defendant’s  version  relating  to execution  of  this document were given  by   Jawala  Prasad Patwari, who was the principal witness on the 786 side of the defendatnt.  He says that he prepared the  draft at  the  sherista or the office of the Raja Sahib  which  is outside  his  Kot or palace.  The draft was  prepared  under instructions  from Bhikhi Ram, the mortgagee. and Ghur  Lal, the Karinda of the mortgagor, both of whom were present when the draft was prepared.  After the draft was fair copied and stamped, the witness signed it as the scribe and then it was taken-by Bhikhi Ram and Ghur Lal to the Kot or palace of the Raja  for his signature.  After obtaining the Raja’s  signa- ture, Bhikhi Ram went away to his house and some time  later he as well as Bhikhi Ram and Ghur Lal went to the Collector- ate   Kutchery, where they took the signatures of  Harbhajan Lal  and  Jawala Prasad Tewari.   They then   went   to  the registration  office, where the document was  presented  for registration by Jainarayan Sukul who   held a general  power of  attorney for the Raja. As against this, there is a completely     different version given  by the plaintiff himself and his witness Buddhu  Lal. According  to the plaintiff, the document was  executed  and attested at one and the same sitting in the Kot or palace of the  Raja;  the terms had been  settled  beforehand  between Bhikhi Ram and the mortgagor and on the 8th of November 1926 the  plaintiff  himself,  and not his father,  went  to  the Raja’s  palace at about 10 or 11 A.M. in the morning to  get the document executed.  He was accompanied by  three persons to wit Harbhajan Lal, the deed writer of his father,  Buddhu

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Lal, an old servant of the family, and Jawala Prasad  Tewari who  was also well known to the plaintiff and was  taken  to bear  witness  to  the  deed.   They  found  Jawala   Prasad Patwari already with the Raja when they reached the Kot. The draft  was prepared by Buddhu Lal at the suggestion  of  the Raja.  It was the plaintiff’s desire that the final document should be scribed by Harbhajan Lal but as the Raja wanted to oblige  Jawala Prasad Patwari, who was the Patwari of  Basti proper, the deed was faired out and scribed by Jawala Prasad patwari.  After the Raja had put his signature on the     787 document in the  presence of Harbhajan Lal and Tewari,  both the latter signed the document in the presence of the  Raja. The  subsequent events narrated by the plaintiff  relate  to the registration of the document and we do not consider them to be material for our present purpose.     This story of the plaintiff is supported materially  and on  all points by Buddhu Lal, who was an old servant of  the family,  though he was no longer in service when he  deposed in court.     There  were thus two conflicting versions placed  before the  court and each side attempted to substantiate its  case by  verbal  testimony of witnesses. The trial Judge  was  to decide  which of  the  two versions was correct and  he  ac- cepted  the story of the plaintiff and rejected that of  the defendant.     The learned Judges of the High Court in dealing with the appeal  do observe, at the beginning of  their  discussions, that  on  a question of fact the appellate court  should  be slow to differ from the conclusions arrived at by the  trial Judge  who  had seen and heard the witnesses; but  in  their opinion, this rule did not apply to the present case as  the trial Judge here did not base his conclusions on the impres- sions  created  in  his mind by the  witnesses  who  deposed before  him. What the trial Judge relied upon, it  is  said, was  not the  demeanour of the witnesses as index  of  their credibility  but  upon  the inherent  improbability  of  the circumstances deposed to by the defendant’s witnesses. It is observed  by  the High Court that the trial Judge,  when  he found  the defendant’s story to be improbable,  should  have considered whether or not there  were improbable features in the  plaintiff’s case also, and whether the evidence of  the plaintiff  and  his servant Buddhu Lal merited  credence  at all.   The learned Judges of the High Court then proceed  to examine  and discuss at great length the  different  reasons put  forward  by the trial Judge in support of  his  finding that  the defendant’s case was  unreliable.   These  reasons are  held to be inconclusive and unsound and the High  Court further found that the plaintiff’s story 788         as narrated by him and his servant is improbable  and not worthy of belief. In  our opinion, the High Court’s approach to the  case  has not  been proper and its findings are unsupportable  on  the materials in the record. Here  was  a case where the controversy related to  a  ’pure question of fact which had to be determined by weighing  and appraising  of  conflicting oral testimony  adduced  by  the parties.   It cannot be denied that in estimating the  value of  oral testimony, the trial Judge, who sees and hears  the witnesses,  has an advantage which the appellate court  does not  possess.  The High Court was wrong in thinking that  it would  detract  from  the value to be attached  to  a  trial Judge’s finding of fact if the Judge does not expressly base his  conclusion  upon the impressions he  gathers  from  the

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demeanour of witnesses (1).  The duty of the appellate court in  such  cases is to see whether the evidence  taken  as  a whole can reasonably justify the conclusion which the  trial court arrived at or whether there is an element of  improba- bility  arising  from  proved circumstances  which,  in  the opinion of the court, outweighs such finding.  Applying this principle to the present case, we do not think that the High Court  was justified in reversing the finding of  the  trial Judge  on the question of attestiation of the  document.  In the  opinion  of the High Court the story  narrated  by  the plaintiff  and  his servant is untrue, and the  main  reason given  is that it is not at all probable that the  plaintiff and  not his father Bhikhi Ram was present at the palace  of the Raja when the document was executed.  The mortgagor,  it is said, was an influential person in the locality occupying a  very high social position and it would be indecorous  and against  Indian customs for a man like Bhikhi Ram not to  be personally  present  when the Raja was going ’to  execute  a document  in his favour.  The learned Judges seem  to  think that  the  plaintiff  was not really at the  spot  when  the mortgage deed was executed and as Bhikhi Ram was dead,  this story was manufactured by the plaintiff in order to        Vide  the  observations  of Lord  Carson  in  Nether- landsche  Handel  Maatschappij v, R.M.P. Chettiar  Firm  and Others, A.I.R 1929 P.O. 202, 205.       789 enable him to prove attestation. Mr. Banerjee appearing  for the  defendant respondent went to the length  of  suggesting that  it was only after Harbhajan Lal turned hostile in  the witness  box and denied that he attested the  document  that the new story was invented by the plaintiff.     We think that this argument rests on an extremely flimsy basis  which does not bear examination.  It may be that  the Raja  was  a man of high social position, but it  should  be remembered  that  he was in the position of a  borrower  and moreover  it  was not the first time that he  was  borrowing money  from  Bhikhi Ram.  As, however, he was  the  Raja  of Basti,  the document was executed at his palace and  not  in the house of the mortgagee and if as the plaintiff says, the terms  were already settled between Bhikhi Ram and the  Raja and  the only thing left was to embody the agreed  terms  in writing, we fail to see why it was absolutely necessary  for Bhikhi  Ram to wait upon the mortgagor personally;  and  why his adult son, who was sufficiently old  and  experienced in business  affairs, could not represent him in  the  transac- tion. The suggestion of Mr. Banerjee that the new story  was invented  after the plaintiff had seen Harbhajan Lal  giving evidence  against  him in the witness box is not  worthy  of serious  consideration  having regard to the fact  that  the plaintiff  himself stepped into the witness box  immediately after Harbhajan Lal had finished his deposition.     It  seems to us also that the presence of Harbhajan  Lal and Buddbu Lal at the sitting when the mortgage  transaction took  place was quite a  probable  and natural  thing  which cannot  give  rise  to any suspicion. It  appears  from  the evidence  on the record  that Harbhajan Lal, who was a  pro- fessional  deed  writer, was usually  employed  for  writing deeds  of the plaintiff’s father and he figured either as  a scribe  or as an attesting witness in various  documents  to which  the  plaintiff’s father was a party.   It  was  quite natural  for  the plaintiff in such  circumstances  to  take Harbhajan Lal alongwith him to the Raja’s palace on the  day that the 790 mortgage  bond was executed and we see no reason  to  disbe-

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lieve the plaintiff’s statement that his original  intention was  to have the deed scribed by Harbhajan Lal.  It is  said by  the  High Court that in the mofussil  districts  in  the United  Provinces  the Patwari is the person  generally  em- ployed  for drafting and scribing deeds.  This  cannot  mean that  all the people in the district of Basti used  to  have their  deeds  drafted and scribed by the Patwari.   We  have exhibited  documents in the records of this case  where  the name  of Harbhajan Lal appears as the scribe; and so far  as the  plaintiff’s  father was concerned, there  is  no  doubt whatsoever  that  Harbhajan Lal was  the  scribe  ordinarily employed to do his work.  In this case also if Jawala Prasad Patwari  had  not been present on the  spot,  the  plaintiff would certainly have the document scribed by Harbhajan  Lal, as so many documents in favour of the plaintiff’s father had been  scribed  by this man on previous  occasions.   We  see nothing improbable in the story that it was out of deference to  the wishes of the Raja that the plaintiff  consented  to the document being scribed by Jawala Prasad Patwari.      As  regards Buddhu Lal, it is not disputed that he  was an  old  and a trusted servant of  the  plaintiff’s  family. That  he was trusted in business matters is clear  from  the fact  that his name appears as a witness in  the  registered receipt  (Ex. 10) given by Sheo Balak Ram, to whom a sum  of Rs.  500 was paid by Bhikhi Ram under the terms of the  dis- puted  mortgage deed. We fail to see why it  was  improbable that Buddhu Lal would accompany the plaintiff to the  Raja’s palace on the day of the execution of the document.      The  trial  Judge relied to some extent upon  the  fact that the signatures of the executant and Harbhajan Lal  were in the same ink in support of his conclusion that  Harbhajan Lal  signed the document at the place of its  execution  and not at the Collectorate Kutchery as alleged by him.   Speak- ing  for ourselves, we do not attach much importance to  the similarity in the ink which is after all not a very reliable test; but we do agree wit.h the trial Judge in holding  that Harbhajan      791 Lal  must have signed the document at the time when  it  was executed and not afterwards; and it is really  inconceivable that  an  old-and experienced deed writer like him  did  not know  the  requirements of proper attestation.  On  his  own evidence he had attested numerous documents and he could not recall.  a single instance where he signed the  document  in such  manner  as he did in the present case.   The’  way  in which the learned Judges of the High Court have attempted to explain away this part of Harbhajan Lal’s evidence does  not appear  to be satisfactory.  The other observation  made  by the  High Court in this connection that in  this  particular province there are many persons who are acquainted with  law but  do not care to comply with its requirements on  account of  carelessness, indifference, sloth or over-confidence  is not relevant and need not be taken seriously.  Whatever that may be, we have no hesitation in holding that Harbhajan  Lal knew perfectly well what attestation means in law and he did sign the document as an attesting witness at the Raja’s  Kot after the document was executed.     Jawala  Prasad  Patwari is apparently a  man  under  the control of the defendant and cannot be trusted. Why  Harbha- jan  Lal did go over to the defendant’s side is  a  question which  may  not admit of an easy answer.   The  trial  Judge seems  to  be  of opinion that it was probably  due  to  the influence  exercised by Jawala Prasad Patwari, who is a  co- villager  of Harbhajan. We think it unnecessary  to   specu- late  upon these matters, for in our opinion  Harbhajan  Lal

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stands condemned by his own statement in court.     Our conclusion is that the finding of the trial Judge on the question of attestation is perfectly consistent with the circumstances and probabilities of the case and the  learned Judge did not omit anything which ought to have been present to his mind in coming to a conclusion.  The evidence on  the record  taken as a whole fully supports the finding, and  in our opinion the High Court has reversed it on totally inade- quate  grounds.   The  result  is that the  appeal  must  be allowed and the judgment of the High Court should be 792 set  aside.  As the High Court, however, has  dismissed  the suit  only on the ground of non-attestation of the  mortgage bond and did not consider the other points which were raised before it, the case must go back to that court in order that the  other matters, which have been left undecided,  may  be heard  and decided by the learned Judges and the  case  dis- posed of in accordance with law.  The plaintiff appellant is entitled  to costs of this hearing as well as the  costs  of the High Court against defendant No. 1.                         Appeal allowed.        Agent  for the appellant: Rajindar Narain.      Agent for the respondents: S.P. Varma.