Mahasay Ganesh Prasad Ray and Anr. vs Narendra Nath Sen and Ors.

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 1 December 1950

Coram: Kania, C.J.

In the matter of Mahasay Ganesh Prasad Ray and another versus Narendra Nath Sen and others, reported for the date of 1 December 1950, the Supreme Court of India heard an appeal. The appeal was made from the judgment and decree of the Patna High Court (Cuttack Circuit), which had set aside the decree of the Sub-ordinate Judge and had dismissed the suit filed by the plaintiffs. The appeal was heard before the Chief Justice, whose judgment is reproduced here.

The factual backdrop that the Court considered essential for resolving the issues raised in the appeal is as follows. Rai Bahadur Govind Ballab Ray died on 30 July 1896. From his first marriage, which ended with the death of his wife before his own death, he had a daughter named Sabitri. Sabitri survived her father only briefly, dying about two months after Govind Ballab’s death. At the time of his death, Govind Ballab also left a surviving widow, Sarnamayee, who later died in 1935. The widow Sarnamayee bore him a son, Lal, who died in infancy, and a daughter, Indubala, who died in 1904. In addition to these immediate family members, Govind Ballab left certain debenture properties. No determination on the disposition of those properties was made in the proceedings because the parties who could properly contest the rights to those properties were not before the Court.

The plaintiffs, who were the appellants before this Court, argued that they were the next-in-line reversioners of Govind Ballab’s estate on the death of Sarnamayee. Conversely, the defendants, who were the respondents, contended that the first wife of Govind Ballab had given birth to a second daughter, Binodini, on the twenty-ninth day of Baisakhi in the year 1287 of the Hindu calendar, which corresponds to 9 May 1880. They further asserted that Binodini survived until 1938, the year after the written statement in this suit was filed. Because the respondents claimed that Binodini was the natural daughter of Govind Ballab, they maintained that they were the nearer reversioners of the estate and therefore entitled to succeed the property.

The parties did not dispute the logical consequence that, if Binodini were indeed the natural daughter of Govind Ballab, the respondents would be the nearer heirs. Consequently, the central question before the Court was whether the Sub-ordinate Judge’s conclusion—that Binodini had been taken into Govind Ballab’s family and treated as a child but was not his natural daughter—was correct. That conclusion had been reversed by the appellate court, and the Supreme Court was asked to assess the correctness of the reversal.

The respondents’ position was vigorously countered by the plaintiffs on the ground that Binodini could not have been born to Govind Ballab’s first wife. The plaintiffs argued that Sabitri, the first-born daughter of the first wife, was delivered approximately six to seven months before 9 May 1880. Accordingly, they claimed that it would have been biologically impossible for the same woman to give birth to another child, Binodini, on that date, and then to have Binodini live for fifty-eight years as a healthy adult. In support of their case, the plaintiffs produced a large number of witnesses before the trial judge, each side calling evidence to either confirm or refute Binodini’s status as a natural daughter of Govind Ballab. Additionally, the plaintiffs presented several old documents that they alleged to be genuine papers of the deceased Govind Ballab, documents which purportedly demonstrated that Sabitri’s birth date corresponded with the date claimed by the plaintiffs.

Despite the extensive oral evidence and documentary material, the trial judge, as recorded in his judgment, remained unconvinced by the plaintiffs’ oral testimony. The High Court, in reviewing the trial judge’s findings, noted that the Sub-ordinate Judge had observed, “from all that I have discussed… it may seem that there are some strong circumstances in support of the defendant’s case… I might have been probably inclined to decide the question of daughter-ship in favour of the defendants had I not been encountered by certain documents on the plaintiffs’ side which I am proceeding to discuss now. The circumstances as also the documents on the side of the defendants can be explained away as I have done but I find no reasonable ground on which I can do away with the plaintiffs’ exhibits, especially the account papers (exh. 32 series).” The High Court therefore began a detailed examination of the Sub-ordinate Judge’s reasoning, giving particular attention to the oral evidence presented by both parties. It observed that the oral evidence offered by the respondents was derived from witnesses who were more respectable and whose testimony was more reliable. This observation set the stage for the Supreme Court’s further analysis of the matter.

The Subordinate Judge, while addressing the question of Binodini’s birth, observed that there appeared to be strong circumstances supporting the defendants’ case. He remarked that, absent any further material, he might have been inclined to decide the issue of daughter-ship in favour of the defendants. However, he explained that he encountered certain documents produced by the plaintiffs, which required his consideration. He further stated that both the circumstances and the documents presented by the defendants could be explained away, but he found no reasonable basis on which to disregard the plaintiffs’ exhibits, particularly the account papers identified as exhibit 32 series.

The High Court accordingly began its review of the Subordinate Judge’s reasoning, focusing on the observations set out in his judgment. In doing so, the High Court examined the oral evidence adduced by both the appellants and the respondents. It noted that the testimony presented on behalf of the respondents was derived from witnesses of higher respectability and greater reliability than that offered by the appellants.

In this regard the High Court highlighted that the evidence of Khirodemani Dassi, designated as documentary witness 3, constituted the sole direct testimony concerning the birth of Binodini. According to her statement, she was actually present at the time of Binodini’s birth, and her cross-examination failed to reveal any reason to doubt the veracity of her account.

The appellants, on the other hand, placed strong reliance on the testimony of Sadanand Dixit, identified as part 13 of the plaintiff’s witnesses, to establish that Binodini had been handed over to Govind Ballab after the death of her parents and that he had personally witnessed the girl’s delivery into his care. After discussing this witness’s evidence, the Court expressed the view that the statement of this witness, upon which the Subordinate Judge had placed considerable reliance, was untrustworthy.

The Subordinate Judge, as recorded in his judgment, had felt compelled to rule against the respondent on the basis of the accounts set out in exhibit 32 series and certain entries in an almanac. The High Court examined these entries closely and concurred with the reasoning that they were not of a character or nature that could compel the conclusion to which the Subordinate Judge believed he was bound.

The High Court observed that the exhibit 32 series consisted of loose sheets of paper rather than a regularly maintained book of accounts. Because these were old documents, the author could not be called, and despite being produced from the Receiver’s possession, there was nothing to establish their genuineness. The Court further noted that Section 90 of the Evidence Act was inapplicable, as the matter did not involve a dispute over the signature of a particular person. The Court declined to repeat the High Court’s detailed reasons for finding these documents unconvincing, noting that they had been comprehensively summarized in the High Court’s judgment.

In its judgment the High Court also highlighted the circumstances in which the account sheets alleged to date from the year 1287 were produced and the manner in which they came to be found in the Receiver’s possession. Keeping those circumstances in mind, the Court observed that the document could not be convincingly shown to belong to the year 1287 because the figure “8” in the date appeared to be torn. Consequently, the Court could not accept the document as proof of a date of 1287.

The appellants then relied on a different set of account sheets said to be from the year 1297. They argued that those sheets contained entries recording the birth of a girl named Indubala, and that the same sheets also recorded the births of the only two daughters of Govind Ballab – Sabitri and Indubala. On that basis the appellants asserted that a woman named Binodini could not be Govind Ballab’s natural daughter. However, the High Court pointed out that the 1297 account sheets were written in fresh ink and therefore appeared unreliable. The Court concluded that no argument could be sustained on the basis of the genuineness of those sheets.

Regarding the entries in the almanac, the Court again noted that they consisted of loose sheets of paper on which blanks were left at various places. The writer of those entries was not available, and consequently the weight that could be attached to regularly kept documents could not be attached to these papers. Because the sheets could be substituted or interpolated at any point, the Court held that, given these defects, the entries could not be said to have been made in the regular course of business and therefore lacked the necessary probative value. In the Court’s opinion, therefore, the High Court’s conclusion was correct.

Counsel for the respondents, following the argument presented by counsel for the appellants on the main points of the appeal, raised a preliminary objection to the hearing of the appeal. The objection was that after the Subordinate Judge had passed a decree in favour of the appellants, the respondents filed an appeal without affixing the required court-fee stamp. On the appellants’ objection, the matter was referred to the Registrar, who held that an “ad valorem” court-fee had to be paid on the appeal. At that time the prayer in the memorandum of appeal read: “The appeal be allowed and the plaintiffs’ suit be dismissed with costs throughout.” After the Registrar’s decision, the respondents sought to amend their prayer by adding the words “except delivery of possession of schedules ‘k, kha, ga’, except lot No. 7 of the properties mentioned in the plaint.” When the amendment application was placed before the Court, a Division Bench of the High Court permitted the amendment, stating that it was to be made at the appellants’ own risk. The matter returned to the Registrar, who, although doubting the prudence of the respondents in making the amendment, held that, as the memorandum stood, the court-fee had been properly paid.

The Court observed that the decree which was under appeal had been paid on the footing that it was solely a declaratory decree. When the present respondents’ appeal was placed before the High Court, the issue of maintainability was raised as a preliminary objection. The High Court held that the objection was well-founded, but nevertheless allowed the respondents—who had been appellants in the earlier proceedings—to delete the amendment they had introduced and granted them time to pay the requisite court-fees.

Counsel for the respondents, Mr Umrigar, contended that the High Court’s order was erroneous because it deprived the appellants of their valuable right to plead the bar of limitation if the appeal were to be treated as filed on the date the court-fees were actually paid. The Supreme Court found that this argument had no substance. Firstly, the decree issued by the Subordinate Judge, as drafted, was a purely declaratory decree and contained no order directing delivery of possession; although the judgment of the Subordinate Judge included directions concerning possession, those directions were not incorporated into the decree itself. Secondly, under Section 149 of the Civil Procedure Code, the High Court possesses the power to permit an amendment, and that power expressly includes the authority to disregard a limitation defence, a view supported by decisions of very high authority.

Accordingly, the contention that, by allowing the amendment, the High Court had taken away the appellants’ right to plead the bar of limitation could not be accepted. The discretion exercised by the High Court was within the bounds of law, and the material placed before this Court indicated no reason to conclude that the discretion was exercised in violation of any recognised legal principle or that any gross injustice resulted. As the High Court had pointed out, the payment of court-fees is a matter primarily between the Government and the respondents, and that was the sole issue contested in this regard. In view of these considerations, the Court held that the preliminary objection failed. The appeal was therefore dismissed with costs.