Sarju Pershad vs Raja Jwaleshwari Pratap Narain Singh

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

Court: Supreme Court of India

Case Number: Civil Appeal No. LXX of 1949

Decision Date: 14 November 1950

Coram: B.K. Mukherjea, Saiyid Fazal Ali, Mehr Chand Mahajan

The case was styled Sarju Pershad versus Raja Jwaleshwari Pratap Narain Singh and was decided on 14 November 1950 by the Supreme Court of India. The judgment was authored by Justice B. K. Mukherjea and the bench was composed of Justices B. K. Mukherjea, Saiyid Fazal Ali and Mehr Chand Mahajan. The petitioner was Sarju Pershad and the respondents were Raja Jwaleshwari Pratap Narain Singh together with several other parties. The official citation for the decision is 1951 AIR 120 and 1950 SCR 781. The judgment also appears in several citator references, including R 1960 SC 115, F 1974 SC 66, F 1983 SC 114, RF 1985 SC 89, RF 1988 SC 103, F 1988 SC 1845, among others. The principal legal issue addressed concerned the practice of appellate courts in reviewing findings of fact that depend on the credibility of witnesses, and the appropriate limits on such interference.

The headnote summarised the Court’s principle that when oral evidence of the parties is contradictory and the decision rests on the credibility of witnesses, an appellate court should not disturb the trial judge’s finding of fact unless a special feature of a witness’s evidence escaped the trial judge’s notice or the balance of improbability is sufficient to overturn the trial judge’s opinion on credibility. The Court observed that a trial judge’s finding retains value even if the judge does not expressly rely on the impressions formed from the witnesses’ demeanour. However, the Court stressed that this is merely a rule of practice and does not render the trial judge infallible in determining truth or exaggeration. The judgment quoted a passage explaining that the High Court had reversed a trial court’s finding on oral evidence because it believed the rule against appellate interference did not apply, on the ground that the trial judge had based his conclusions on the inherent improbability of the circumstances rather than on the witnesses’ demeanour. The Supreme Court held that the High Court’s approach was improper and, after weighing the entire evidence, the Court reversed the High Court’s finding. The Court also referred to earlier authorities, including W.C. Macdonald v. Fred Latimer (AIR 1929 PC 15 at p. 18), Watts v. Thomas ([1947] AC 484 at p. 486), Sarave-eraswami v. Talluri (AIR 1949 PC 39), and Netherlandsche Handel Maatschappij v. R.M.P. Chettiar Firm and Others (AIR 1929 PC 202-205). The judgment was an appeal, Civil Appeal No. LXX of 1949, from the Allahabad High Court’s decision dated 22 April 1943, rendered by Justices Verma and Yorke. The appellant was represented by M. C. Setalvad, Attorney-General for India, assisted by Sri Narain Andley, while the respondents were represented by P. L. Banerjee, assisted by H. J. Urnrigal. The judgment of the Supreme Court was delivered on 14 November 1950.

In this case the appellant sought review of a judgment and decree issued by a Division Bench of the Allahabad High Court on 22 April 1943. That High Court decision had set aside an earlier decree of the Civil Judge of Basti dated 6 November 1939. The suit that gave rise to the present appeal had been instituted by the plaintiff, whose legal successor was the appellant, for recovery of a monetary sum of Rs 11,935 through enforcement of a simple mortgage bond. The mortgage deed in question was dated 8 March 1926 and had been executed by Raja Pateshwari Partap Narain Singh, who at that time held the Basti Raj, an impartible estate administered under the rule of primogeniture. The deed was made in favour of Bhikhiram Sahu, the father of the original plaintiff Ramdeo, to secure a loan of Rs 5,500 advanced by the mortgagee. The loan bore interest at a rate of nine per cent per annum and the bond contained a stipulation that the mortgage money be repaid within one year of the bond’s date. By the time the suit was filed both the mortgagor and the mortgagee had died. The plaintiff in the suit, Ramdeo Sahu, was the son and heir of the mortgagee, while the principal defendant was the eldest son of the mortgagor, who had succeeded to the Basti estate in accordance with primogeniture. The plaint asserted that neither the mortgagor nor his successor had paid any amount toward the mortgage liability, and it claimed recovery of the principal sum of Rs 5,500 together with interest calculated at nine per cent per annum up to the date of filing.

The defendant raised a series of pleas in answer to the plaintiff’s claim, many of which were not material to the issues considered here. The principal contentions advanced by the defendant fell into three categories. First, the defendant contended that the document relied upon by the plaintiff was not properly attested nor validly registered, and therefore it could not function as a mortgage instrument under law. Second, the defendant argued that the transaction lacked sufficient consideration, specifically that items three and four of the consideration clause in the deed did not represent a consideration of at least Rs 2,000. Third, the defendant invoked a claim for relief under the United Provinces Agriculturists’ Relief Act. The trial judge found in favour of the defendant on the third contention relating to the Agriculturists’ Relief Act, but rejected the other two pleas. Consequently, the trial judge issued a preliminary decree ordering the sale of the mortgagor’s property in favour of the plaintiff to enable recovery of the principal sum of Rs 5,500 together with interest fixed at rates prescribed by the United Provinces Agriculturists’ Relief Act. In accordance with the provisions of that Act, the decree also directed that the amounts due be paid by the defendant in a series of instalments. The appellant challenged this decision, leading to the appeal now before the Supreme Court.

The defendant appealed the trial decision to the High Court of Allahabad, where the case was heard before a Division Bench consisting of Justices Verma and York. The learned judges set aside the trial judge’s decree and dismissed the plaintiff’s suit on a single ground: they held that the bond had not been attested in the manner prescribed by law and therefore could not be deemed a mortgage bond, and additionally that the suit had been filed more than six years after the date of the bond, which barred the plaintiff from obtaining a money decree. The plaintiff then sought relief by filing an appeal before the Supreme Court. The principal argument advanced by the Attorney-General, who represented the plaintiff, contended that the High Court had adopted an erroneous approach to the question of attestation and, based on the material before it, possessed no justification for overturning the trial court’s findings on that issue.

The matter before this Court was undeniably a question of fact, the resolution of which required an assessment of the oral evidence presented at trial. In such circumstances, the appellate tribunal must remember that it does not enjoy the advantage possessed by the trial judge, namely the opportunity to observe the witnesses directly and to note the manner in which they gave evidence. That limitation, however, does not imply that an appellate court lacks the competence to reverse a factual finding made by the trial judge. Established practice dictates that when the oral evidence of the parties is in conflict and the dispute turns on the credibility of the witnesses, the appellate court should refrain from interfering with the trial judge’s factual conclusions unless a particular witness’s testimony exhibits a distinctive feature that escaped the trial judge’s notice or there is a clear preponderance of improbability that outweighs the trial judge’s assessment of credibility. The principle was succinctly summarized in a series of authorities, notably Viscount Simon’s observations in Watt v. Thomas, which were reproduced verbatim by the Judicial Committee in a recent appeal from the Madras High Court. The quoted passage states: “But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at at the trial, and especially if that conclusion has been arrived at on conflicting 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….”

In discussing the proper weight to be given to a trial judge’s assessment of credibility, the Court noted that a judge must decide which party is telling the truth or refraining from exaggeration. While a trial judge, like any tribunal, may err on a question of fact, it is a strong circumstance that a judge of first instance, when estimating the value of verbal testimony, enjoys the advantage of having the witnesses before him and observing the manner in which their evidence is given. The Court referred to Lord Atkin’s observations in W.C. Macdonald v. Fred Latinmer and to the statements of Viscount Simon in Watt v. Thomas, which were later reproduced by the Judicial Committee. These authorities emphasize that the appellate court should not disturb the trial judge’s finding on credibility unless there is a clear error.

Applying these principles, the Court examined the propriety of the decision of the learned judges of the High Court in the present matter. The mortgage deed in dispute contained the signature of the executant and purported to bear the signatures of three other persons: two attesting witnesses, Harbhajan Lal and Jawala Prasad Tewari, and a scribe, Jawala Prasad Patwari. Jawala Prasad Tewari was already deceased when the suit was instituted, and Harbhajan Lal, the sole surviving attesting witness, was called by the plaintiff to prove the execution of the deed as required by section 68 of the Indian Evidence Act.

Harbhajan Lal testified that he had signed the document as a witness and that Jawala Prasad Tewari had also signed it, but he affirmed that neither of them had signed in the presence of the mortgagor, nor had the mortgagor signed while they were present. On the basis of this statement, the witness was declared hostile and was permitted to be cross-examined by counsel for the plaintiff and also by counsel for the defendant. In response to the defendant’s questions, Harbhajan Lal explained that he had signed the deed at the Collectorate Kutchery, identified as the Bar Library where he served as a petition writer. He said the document was brought to him at that location by Bhikhi Ram Sahu, the mortgagee; Ghur Lal, a Karinda of the mortgagor; and Jawala Prasad Patwari, the scribe. He added that Jawala Prasad Tewari signed the deed after him and that the mortgagor had not come to that place; the mortgagar’s signature was already on the deed when the witness affixed his own.

The defendant’s version of the execution was presented through the testimony of Jawala Prasad Patwari, who acted as the principal witness for the defendant. He asserted that he prepared the draft of the deed at the sherista, or office of the Raja Sahib, located outside the Raja’s Kot or palace, under the instructions of Bhikhi Ram, with Ghur Lal present at the time of preparation. After the draft was accurately copied and stamped, Patwari, acting as the scribe, signed it. The signed draft was then taken by Bhikhi Ram and Ghur Lal to the Raja’s Kot for the Raja’s signature. Following the Raja’s execution, Bhikhi Ram returned home and later, together with Ghur Lal, proceeded to the Collectorate Kutchery to obtain the signatures of Harbhajan Lal and Jawala Prasad Tewari. The parties subsequently presented the document for registration at the registration office, where it was submitted by Jainarayan Sukul, who held a general power of attorney for the Raja.

According to the version put forward by the defendant, after the deed had been stamped the scribe signed it, and the signed document was then carried by Bhikhi Ram and Ghur Lal to the Kot, that is, the palace of the Raja, where the Raja affixed his signature. After the Raja signed, Bhikhi Ram returned to his own residence. Some time later, Bhikhi Ram together with Ghur Lal proceeded to the Collector’s Kutchery, where they obtained the signatures of Harbhajan Lal and Jawala Prasad Tewari. The parties then went to the registration office, and there the deed was presented for registration by Jainarayan Sukul, who held a general power of attorney on behalf of the Raja. The plaintiff, however, gave a completely different account, which was also supported by his witness Buddhu Lal. The plaintiff stated that the document was both executed and attested in a single sitting inside the Raja’s Kot. He explained that the terms of the deed had been settled beforehand between Bhikhi Ram and the mortgagor. On 8 November 1926, the plaintiff himself—not his father—went to the Raja’s palace at about ten or eleven o’clock in the morning to have the deed executed. He was accompanied by three persons: Harbhajan Lal, who acted as the deed-writer for his father; Buddhu Lal, an elderly former servant of the family; and Jawala Prasad Tewari, a person well known to the plaintiff who was called to bear witness. When they arrived at the Kot they found that Jawala Prasad Patwari was already present with the Raja. The draft of the deed, the plaintiff said, had been prepared by Buddhu Lal on the suggestion of the Raja. Although the plaintiff preferred that the final document be scribed by Harbhajan Lal, the Raja insisted that Jawala Prasad Patwari, the Patwari of Basti proper, should be the scribe, and consequently the deed was written out and signed by Patwari. After the Raja signed the document in the presence of Harbhajan Lal and Jawala Prasad Tewari, both Harbhajan Lal and Tewari signed the deed before the Raja. The plaintiff’s narrative also described the later steps taken to register the document, but those subsequent events were deemed irrelevant for the purpose of the present dispute. Buddhu Lal, although no longer in the employ of the family at the time of his testimony, corroborated the plaintiff’s version on every material point.

Thus the court was faced with two contradictory versions of the same transaction, each party relying on oral testimony of its own witnesses to prove its case. The trial judge had to determine which version was more credible and, after hearing the evidence, accepted the plaintiff’s story and rejected the defendant’s account. When the matter proceeded on appeal, the learned judges of the High Court noted at the outset of their discussion that, as a general principle, an appellate court should be cautious in overturning a trial judge’s findings of fact, especially where the trial judge had personally observed and heard the witnesses. However, the High Court qualified this principle by indicating that it would not apply in the present case because the trial judge had not based his conclusions on the demeanor of the witnesses as an indicator of credibility, but rather on what he perceived to be the inherent improbability of the circumstances described by the defendant’s witnesses.

In the opinion of the Court, the rule that an appellate court should be slow to differ from a trial judge’s findings on questions of fact did not apply in the present case because the trial judge had not based his conclusions on the impressions formed in his mind by the witnesses who testified before him. The trial judge was said to have relied not on the demeanor of the witnesses as an index of credibility but on the inherent improbability of the circumstances presented by the defendant’s witnesses. The High Court observed that, when the trial judge found the defendant’s version to be improbable, he should also have examined whether there were improbable features in the plaintiff’s case and whether the evidence offered by the plaintiff and his servant Buddhu Lal deserved any credence. The learned judges of the High Court then proceeded to discuss at length the various reasons advanced by the trial judge in support of his finding that the defendant’s case was unreliable. Those reasons were held to be inconclusive and unsound, and the High Court further concluded that the plaintiff’s narrative, as told by him and his servant, was itself improbable and not worthy of belief. In the view of the Court, the High Court’s approach was not proper and its findings were unsupportable on the material before the record. The controversy centered on a pure question of fact that required weighing and appraisal of conflicting oral testimony adduced by the parties. It could not be denied that, in evaluating oral testimony, the trial judge who saw and heard the witnesses possessed an advantage that the appellate court did not have. The High Court was erroneous in thinking that the value of a trial judge’s finding of fact would be diminished because the judge had not expressly based his conclusion on the impressions gathered from the witnesses’ demeanor. The duty of an appellate court in such circumstances was to determine whether the evidence taken as a whole could reasonably justify the trial court’s conclusion or whether an element of improbability arising from proved circumstances, in the court’s opinion, outweighed that finding. Applying this principle to the present matter, the Court did not consider the High Court justified in reversing the trial judge’s finding on the attestation of the document. The High Court had held that the story narrated by the plaintiff and his servant was untrue, primarily because it was deemed improbable that the plaintiff, rather than his father Bhikhi Ram, was present at the Raja’s palace when the document was executed. The mortgagor, it was said, was an influential person occupying a very high social position, and it would have been indecorous and contrary to Indian customs for a man such as Bhikhi Ram not to be personally present when the document was executed.

In this case the Raja was about to execute a document that would be in his favour. The trial judges appeared to accept that the plaintiff was present at the place where the mortgage deed was signed, but the learned judges of the appellate court expressed doubt about the plaintiff’s presence. They suggested that, because the plaintiff’s father Bhikhi Ram had died, the plaintiff had fabricated a story to enable him to rely on the observations of Lord Carson in Netherlandsche Handel Maatschappij v. R.M.P. Chettiar Firm and Others, A.I.R. 1929 P.O. 202, 205, in order to prove that the deed was properly attested. Counsel for the respondent, Mr Banerjee, went further and argued that the plaintiff invented this version only after the witness Harbhajan Lal turned hostile in the witness box and denied that he had attested the document. The Court found that this line of argument was extremely weak and did not merit detailed examination. While it was acknowledged that the Raja occupied a high social position, the Court reminded that the Raja was in the role of a borrower and that he had previously borrowed money from Bhikhi Ram. Because the Raja was the ruler of Basti, the execution of the document took place at his palace rather than at the residence of the mortgagee. The plaintiff contended that the terms of the loan had already been agreed between Bhikhi Ram and the Raja and that the only remaining step was to record those terms in writing. The Court therefore saw no necessity for Bhikhi Ram himself to be personally present before the mortgagor, nor did it understand why his adult son, who was sufficiently mature and experienced in business, could not act on his father’s behalf in the transaction.

The suggestion by counsel that the new story was fabricated after the plaintiff observed Harbhajan Lal giving adverse evidence was rejected as unconvincing. The Court noted that the plaintiff himself took the stand immediately after Harbhajan Lal had completed his deposition, which undermined the timing argument. Moreover, the Court considered the presence of both Harbhajan Lal and Buddhu Lal at the mortgage signing to be a natural and probable occurrence that did not arouse suspicion. Evidence on record showed that Harbhajan Lal was a professional deed writer who was regularly employed to draft deeds for the plaintiff’s father. He frequently appeared as either a scribe or an attesting witness in documents in which the plaintiff’s father was a party. Consequently, it was entirely reasonable for the plaintiff to bring Harbhajan Lal with him to the Raja’s palace on the day the mortgage bond was executed, and the Court found no basis to disbelieve the plaintiff’s explanation that his original intention was to have the deed scribed by Harbhajan Lal. The High Court had observed that in the rural districts of the United Provinces the Patwari was generally employed for drafting and scribing deeds. The Court held that this observation could not be taken to mean that every person in

In this case the Court observed that it could not be said that every person in the district of Basti relied on the Patwari for drafting and scribing deeds. The record contained several documents in which Harbhajan Lal was specifically identified as the scribe, and with respect to the plaintiff’s father there was no doubt that Harbhajan Lal ordinarily performed the scribing work for him. Consequently, the Court held that even if Jawala Prasad, the Patwari, had not been present at the place where the mortgage deed was executed, the plaintiff would nevertheless have had the document scribed by Harbhajan Lal, because many earlier documents in favour of the plaintiff’s father had been scribed by that man. The Court found nothing improbable in the explanation that the plaintiff, out of respect for the wishes of the Raja, had consented to the document being scribed by Jawala Prasad Patwari. Regarding Buddhu Lal, the Court noted that his status as an old and trusted servant of the plaintiff’s family was not contested. The trust placed in him in business matters was demonstrated by his appearance as a witness in the registered receipt (Exhibit 10) executed by Sheo Balak Ram, to whom Bhikhi Ram had paid a sum of Rs. 500 under the terms of the disputed mortgage deed. The Court therefore saw no reason to consider it improbable that Buddhu Lal would accompany the plaintiff to the Raja’s palace on the day the document was executed. The trial Judge had, to some extent, relied on the fact that the signatures of the executant and of Harbhajan Lal were made with the same ink, using this observation to support the conclusion that Harbhajan Lal signed the document at the place of its execution rather than later at the Collectorate Kutchery as alleged. The Court stated that it did not attach great importance to the similarity of ink, describing it as an unreliable test, but it agreed with the trial Judge that Harbhajan Lal must have signed the document at the time of its execution and not afterwards. The Court considered it inconceivable that an experienced deed-writer such as Harbhajan Lal would be unaware of the legal requirements of proper attestation. According to his own evidence, Harbhajan Lal had attested numerous documents and could not recall a single instance in which he had signed a document in the manner alleged in the present case. The Court found the High Court’s attempt to explain away this part of Harbhajan Lal’s evidence unsatisfactory. Moreover, the High Court’s comment that many persons in the province were acquainted with the law but failed to comply because of carelessness, indifference, sloth or over-confidence was deemed irrelevant and not worthy of serious consideration. The Court concluded without hesitation that Harbhajan Lal fully understood the legal meaning of attestation and had indeed signed the document as an attesting witness at the Raja’s Kot after the document had been executed.

In this case, the Court observed that Harbhajan Lal had signed the document as an attesting witness at the Raja’s Kot after the document had already been executed. The Court noted that Jawala Prasad Patwari appeared to be a person who was under the control of the defendant and therefore could not be trusted. The Court remarked that the reason why Harbhajan Lal went over to the defendant’s side was not easy to determine. The trial Judge had expressed the view that the most likely reason was the influence of Jawala Prasad Patwari, who was a fellow villager of Harbhajan Lal. The Court considered it unnecessary to speculate further on this point, because, in the Court’s opinion, Harbhajan Lal was effectively condemned by his own testimony given in court. The Court concluded that the trial Judge’s finding on the issue of attestation was fully compatible with the surrounding circumstances and the probabilities of the case. The Court held that the learned Judge had not omitted any material that should have been considered in reaching his conclusion. When the entire record of evidence was examined, the Court found that it fully supported the trial Judge’s finding. Accordingly, the Court determined that the High Court had reversed the finding on grounds that were wholly inadequate. Consequently, the Court held that the appeal must be allowed and that the judgment of the High Court should be set aside. However, because the High Court had dismissed the suit solely on the ground of non-attestation of the mortgage bond and had not addressed the other issues raised before it, the matter was to be remitted to the High Court for consideration of those outstanding points. The Court ordered that the plaintiff-appellant be awarded costs of the present hearing as well as the costs incurred in the High Court against defendant No. 1. The appeal was therefore allowed. The agents for the parties were recorded as Rajindar Narain for the appellant and S.P. Varma for the respondents.