Arjan Singh Alias Puran vs Kartar Singh And Others

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

Court: Supreme Court of India

Case Number: Civil Appeal No. 31 of 1950

Decision Date: 2 March 1951

Coram: N. Chandrasekhara Aiyar, Saiyid Fazal Ali, B.K. Mukherjea

In this case the Court recorded that the appeal filed by Arjan Singh alias Puran against Kartar Singh and others was decided on 2 March 1951. The judgment was authored by N Chandrasekhara Aiyar and the Bench comprised N Chandrasekhara Aiyar, Saiyid Fazal Ali and B K Mukherjea. The citation of the decision appears as 1951 AIR 193 and 1951 SCR 258, with subsequent references listed as RF 1963 SC1526 (9), F 1974 SC2069 (5), RF 1976 SC1053 (10). The Court examined the question of whether additional evidence could be admitted in an appeal under Order XLI, Rule 27 of the Civil Procedure Code, 1908, and also considered the maintainability of a suit challenging the alienation of non-ancestral property under section 7 of the Punjab Custom Act of 1920.

The Court explained that the discretion to receive and admit additional evidence in an appeal is not an arbitrary power; it is a judicial discretion limited by the conditions set out in Order XLI, Rule 27. If a trial judge allows additional evidence contrary to those prescribed principles, such admission constitutes an improper exercise of discretion. Consequently, any evidence admitted in that manner must be ignored and the case decided as if the improper evidence never existed. The Court clarified that the proper occasion for admitting additional evidence in an appeal arises only when, on examination of the record, an inherent gap or defect becomes apparent. It is not a vehicle for introducing fresh evidence discovered outside the court through a separate application. The true test, according to the Court, is whether the appellate court can pronounce its judgment on the material already before it without resorting to the additional evidence sought to be introduced.

The judgment referred to the authorities Kessowji Issur v G I P Railway (34 IA 115) and Parsotim v Lal Mohan (58 IA 254). While a finding of fact, even if erroneous, generally cannot be challenged in a second appeal, a finding based on improperly admitted additional evidence and lacking consideration of the intrinsic defects of that evidence cannot be treated as conclusive on appeal. Further, the Court noted that under section 7 of the Punjab Custom Act of 1920, no party may contest the alienation of non-ancestral immovable property on the ground that such alienation is contrary to custom.

The matter before the Court arose in civil appellate jurisdiction as Civil Appeal No. 31 of 1950, filed against a judgment and decree dated 28 February 1946 of the High Court of Judicature at Lahore in Regular Second Appeal No. 887 of 942. Counsel for the appellant was identified, and counsel for the respondents was also noted. The judgment was delivered on 2 March 1951 by Justice Chandrasekhara Aiyar. The plaintiff, Arjan Singh alias Puran, had instituted a suit in the court of the Subordinate Judge, Jullundur, against Inder Singh, Kartar Singh and five other defendants for a

The plaintiff, Arjan Singh alias Puran, sought a declaration that a will executed by the first defendant Inder Singh in favour of the second defendant Kartar Singh about fourteen years earlier was null and void as against him, because he was the first defendant’s reversalary heir after Inder Singh’s death. The plaint described specific property: a half share of land measuring 395 kanals in the village of Kadduwal; another half share of land measuring 837 kanals and 11 marlas in the village of Pattar Kalan; and four houses in Pattar Kalan. According to the pedigree attached to the plaint, the plaintiff traced his lineage to Sehja Singh, who was his fourth ancestor. Sehja Singh was shown to have two sons, Jodha Singh and Jai Singh. The first defendant Inder Singh was identified as the grandson of Jodha Singh. The parties were described as Jar agriculturists who followed customary law concerning alienation of ancestral property and succession. Under that customary law, a sonless proprietor was not competent to execute a will concerning his ancestral property when collateral heirs existed up to the fifth degree. The plaintiff contended that the entire property described in the plaint was ancestral; therefore the will made by Inder Singh in favour of Kartar Singh, who claimed to have been adopted by Inder Singh, was invalid and ineffective. The plaintiff was born on 22 July 1919 and was a minor at the time the will was made, so the suit was filed within the limitation period. The principal defence was raised by the second defendant Kartar Singh, who established his adoption and argued that the properties were not ancestral in relation to the plaintiff. Defendants three through seven did not appear and were held ex parte. At trial it was admitted that the land in Kadduwal could not be proved to be ancestral. The Subordinate Judge also found that the land in Pattar Kalan was not shown to be ancestral by the plaintiff’s evidence because the common ancestor Sehja Singh had not only two sons Jodha and Jai but also a third son named Pohlo. The judge held that the mere fact that the two sons possessed the land in equal shares did not create a presumption that the property descended from the common ancestor, since nothing was known about Pohlo’s share. The judge recorded findings favourable to the plaintiff on the questions of adoption and limitation, but he also concluded that the plaintiff lacked locus standi to challenge the validity of the adoption because the limitation period had expired long before the plaintiff’s birth. Consequently, the suit was dismissed. The plaintiff then appealed to the District Judge. He filed an application under Order XLI, Rule 27, and Section 151 of the Civil Procedure Code seeking leave to adduce additional evidence. He sought to have a document placed on record and considered, and it was alleged that he had not been aware of that document at the trial.

At the trial there existed a kami beshi statement relating to Mauza Pattar Kalam that contained a note indicating that the third son, Pohlo, had given up his interest in the ancestral property in favour of his brothers. A copy of this statement was filed along with the appeal memorandum. The application to adduce this statement was naturally opposed by the contesting defendants, who argued that the plaintiff-appellant had ample opportunity to produce all of his evidence in the lower court to prove that the property was ancestral and that, on its face, the entry on which reliance was now sought appeared to be forged. The District Judge listed the application to be heard together with the appeal itself. On 17 March 1942, that is, even before hearing the appeal, the District Judge allowed the application. Referring to two entries – one found in the naqsha kami beshi prepared in 1849-50 and the other in the muntakhib asami-war prepared in 1852 – both of which stated that Pohlo had relinquished his ancestral share, the Judge observed that, if these entries were found to be genuine, they would enable the Court to reach a just conclusion. He therefore declared that, in the interest of justice, the additional evidence should be admitted and that he was acting under Order XLI, rule 27(1)(b) of the Civil Procedure Code. He added that the additional evidence would supply material needed to remove the defect pointed out in the judgment of the lower court, namely why two of the sons of Sehja Singh came to own equal shares of the land of Pattar Kalan in the presence of their third brother. The Judge permitted the parties to call evidence relating to the two documents. Two witnesses were examined on behalf of the appellant. The first witness, Munshi Pirthi Nath, who was the clerk in the Deputy Commissioner’s office at Jullundur City, produced the record of rights for the village Pattar Kalan that had been prepared at the time of the settlement of 1849-50. The second witness, Munshi Niaz Ahmad, who held the office of Qanungo in the Jullundur Tahsil, produced the muntakhib asami-war of the record of rights preserved at the Tahsil Office. Both witnesses gave testimony concerning the relevant entries found in the registers. After considering this testimony, the District Judge reversed the decision of the Subordinate Judge and decreed the plaintiff’s suit on the strength of the additional evidence. He held that the entries relied upon by the appellant were genuine and not forged and that, because Pohlo had relinquished his share, the land in Mauza Pattar Kalan was ancestral as to the plaintiff. He further found that the suit was not barred, being within the period prescribed by article 120 of the Indian Limitation Act, but that the adoption claimed by the second defendant was false. Since the custom of the district did not permit a proprietor to will away any portion of his property, whether ancestral or self-acquired, the Judge concluded that the plaintiff had a right to contest the will. On the basis of these findings, the decree was rendered in favour of the plaintiff.

The District Judge, relying on his findings, decreed the plaintiff’s suit in full. His decree covered the lands situated in the village of Kadduwal, which had been acknowledged as non-ancestral, and also included an area measuring four bighas and sixteen biswas in Pattar Kalan. According to the record of rights, the land in Pattar Kalan was not possessed by Jodha Singh and Jai Singh; rather, it was held by third parties. The second defendant, Kartar Singh, challenged this judgment by filing a second appeal before the High Court. The learned judges of that court examined the matter and concluded that there was no evidence to establish that the land in Pattar Kalan was ancestral. They further held that the District Judge had no justification for admitting the additional documents identified as the nabsha kami beshi and the muntakhib asami-war records. By a brief inspection of the original documents, the High Court judges observed that the entry indicating Pohlo’s relinquishment of his share appeared to be a later insertion. Consequently, they determined that the entire parcel of land in Pattar Kalan was also non-ancestral and that, under section 7 of Act II of 1920, no individual possessed the right to contest the alienation of non-ancestral immovable property on the basis of custom. On that ground, the High Court concluded that the suit ought to have been dismissed in its entirety. Because this finding resolved all the issues raised, no further question remained for determination. Nevertheless, the High Court granted leave to appeal to His Majesty in Council, and the present appeal now stands before this Court.

The counsel for the appellant argued vigorously that the High Court should not have interfered with the discretion exercised by the District Judge in permitting the additional evidence to be adduced. The counsel further contended that, even if a factual error had been made, the finding should remain final because a second appeal may be entertained only on the specific grounds enumerated in section 100 of the Civil Procedure Code. This argument, however, rested on a misconception. The power to admit additional evidence is not an unfettered or purely discretionary authority; it is a judicial discretion that is bounded by the limitations set out in Order XLI, rule 27 of the Civil Procedure Code. When the appellate court permits evidence that contravenes the principles governing its reception, it commits an improper exercise of discretion, and the improperly admitted evidence must be ignored as if it never existed. Under Order XLI, rule 27, the appellate court must require that any additional evidence be presented in a manner that enables it to pronounce its judgment. The Privy Council, in the well-known case of Kessowji Issur v. G. I. P. Railway, observed that the appropriate occasion for applying this rule arises only when, on examining the evidence as it stands, an inherent lacuna or defect becomes apparent; it does not apply where fresh evidence is discovered outside the court and is then sought to be introduced.

In this case, the Court referred to the earlier pronouncement that “the application is made to import it;” a view that had been restated with greater emphasis in the later decision of Parsotim v. Lal Mohan (2). The Court explained that the proper test was whether the appellate court could deliver a judgment based on the material already before it, without relying on any additional evidence that a party sought to introduce. In the facts before the Court, there was no indication of any lacuna or gap in the record that needed to be filled, nor was there any indication that the District Judge felt incapable of reaching a decision without the copies of the settlement registers that were being presented for the first time. Instead, the District Judge decided to admit the certified copies of the kami beshi and muntakhib asami-war registers before hearing the appeal. The order permitting the appellant to call this additional evidence was dated 17 March 1942, while the appeal itself was heard on 24 April 1942. Consequently, there was no opportunity for the Court to examine the existing evidence before concluding that a lacuna existed which required supplementation in order to pronounce judgment. Under those circumstances, the learned Judges of the High Court correctly held that the District Judge was not justified in admitting the evidence under Order XLI, rule 27. Even assuming that the admission of additional evidence had been appropriate, the District Judge had failed to address the inherent defects in the entries of the settlement registers relied upon by the appellant, nor had he considered the many criticisms that could reasonably be raised to show that those entries were spurious. He had simply accepted the entries as genuine, reasoning only that the records had historically remained in proper custody. The High Court Judges observed that a superficial review of the original documents led inexorably to the conclusion that the entry was a later interpolation. In the naqsha kami beshi, a remark had already existed in the column, and the new remark appeared in a different pen and ink, making it difficult to read clearly. Moreover, although two or three other places mentioned the names of Jodha and Jai Singh, no similar remark was made against them. A corresponding remark in the sharah lagan column of muntakhib asami-war was also out of place, appearing in the copy retained at the Tahsil Office but not in the copy preserved at the Sadar Office. The manner in which these entries were said to have been traced further cast doubt on their authenticity. The Court fully agreed with these observations, noting that while a factual finding, even if erroneous, cannot be challenged in a second appeal, a finding based on improperly admitted additional evidence and without any consideration of the evident defects in the entries themselves could not be treated as conclusive in the second appeal. If the additional evidence were disregarded, the appellant would be left without any viable ground of defence, and there was nothing to show that the appellant possessed any substantive basis for its claim.

In the present case the Court observed that the remark appearing in the column of the copy retained at the Tahsil Office was out of place, whereas no such remark existed in the copy preserved at the Sadar Office; consequently the Court found no reason to accept the presence of that remark in the official record. Moreover, the Court noted that it was illogical for a comment of that nature to have been entered in that particular column. The manner in which the entries were said to have been traced, the Court held, also cast considerable doubt on their authenticity. The Court fully concurred with the observations of the learned High Court judges that, although a factual finding, even if erroneous, cannot be reopened on a second appeal, a finding based on additional evidence that should not have been admitted and that ignored the obvious and palpable defects in the entries themselves could not be treated as conclusive in a second appeal. If the additional evidence were disregarded, the appellant would be left with no viable basis for support. The Court further pointed out that there was no evidence showing that the common ancestor, Sehja Singh, possessed the Mauza Pattar Kalan lands that were later entered in the names of two sons in equal shares, with no mention of a share for the third son, Pholo. In fact, the pedigree table indicated the existence of a fourth son named Hamira. Had the property been entered in the registers in the names of all the sons in equal proportions, there might have been, however weak, a basis to presume that the property was ancestral as alleged by the plaintiff. As it stood, there was no proof that the common ancestor owned the land and that his sons acquired it from him by inheritance in equal shares. The Court concluded that the District Judge had erred in decreeing the plaintiff’s suit, even with respect to the lands in Kadduwal that were conceded to be non-ancestral, and also erred concerning the parcel identified as Khasra No 2408 measuring four bighas and sixteen biswas, which was not in the possession of the two sons, Jodha Singh and Jai Singh. The District Judge was also wrong in holding that the customary law governing the parties barred the owner from bequeathing any portion of the property, whether ancestral or self-acquired; this view conflicted with section 7 of the Punjab Laws Act II of 1920, which provides that notwithstanding anything to the contrary in section 5 of the 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. The Court found that no other point remained for consideration in this appeal, and therefore dismissed the appeal with costs payable in all the courts. The agent for the appellant was identified as Ganpat Rai, and the agents for the respondents were listed as S P Varma.