Jarnail Singh, etc. vs Chatar Singh, etc.

Harnam Singh, J.—On 1-4-1942, Jemadar Chatar Singh instituted the suit out of which these proceedings have arisen for a declaration that Sadhu Singh was not the adopted son of Bogha Singh and in case the factum of adoption of Sadhu Singh by Bogha Singh was established then the adoption was contrary to the custom and not binding on the reversionary interests of the Plaintiff after the death of Bogha Singh, Defendant 2.

At the time of the institution of the suit Sadhu Singh was serving under special conditions within the meaning of Section 3, Indian Soldiers (Litigation) Act, 1925, hereinafter referred to as the Act. On 5-11-1947, Chatar Singh made an application in the trial Court for bringing on record the three sons of Sadhu Singh as his legal representatives on the ground that Sadhu Singh had died in the year 1942. That petition was dismissed on 30-3-1948, on the finding that the death of Sadhu Singh was not proved and that Sadhu Singh must be deemed to be alive. A similar, application was then made by Jarnail Singh on 28-10-1948, but that application was also dismissed on 5-2-1949. In the order passed on 5-2-1949, Sardar Jasmer Singh, Subordinate Judge, 1st Class, Jagraon, said:

The statement of the learned Counsel for the applicants was recorded on the back of this application on the same day. According to that statement the applicants do not contend that Sadhu Singh is dead. All they say is that his whereabouts are not known and it cannot be said whether he is alive or dead. They do not accept the position taken up by the authorities as correct. In face of this statement the application in question is rendered meaningless. If the applicants themselves come forward with a plea that Sadhu Singh is dead or should be presumed to have died in the peculiar circumstances of the case, then this matter can be inquired into by the Court.

Now, the present proceedings have arisen from the application of Jarnail Singh and Harnail Singh, sons of Sadhu Singh, alleging that now the Army authorities have declared that all prisoners of war should be treated as dead with effect from 1-11-1948, and that being so, the sons of Sadhu Singh have to be brought on the record of the case because they were necessary parties to the suit after the death of Sadhu Singh and furthermore they were in possession of the suit property.

Chatar Singh Plaintiff resisted the application inter alia on the ground that the orders passed on 30-3-1948, and on 5-2-1949, operate as res judicata. Then, it was pointed out in the written statement by Chatar Singh Plaintiff that the order of the Army authorities, if any, has no binding force in proceedings pending before the Court. On the pleadings of the parties, the following issues were framed:

Is Sadhu Singh to be presumed to have died.

What is the effect of the previous orders dated 30-3-1948 and 5-2-1949, on the present application?

The trial Court finding issues 1 and 2 against the applicants dismissed the application with costs on 14-4-1949.

Jarnail Singh and Harnail Singh majors and Gurnek Singh minor now apply to this Court u/s 44 of Act v. [6] of 1918 (Punjab) for the revision of the order passed by the trial Court on 14-4-1949.

Issue 2 need not detain us for the finding that it was not proved that Sadhu Singh was dead at a particular time does not bar the trial of that issue in subsequent proceedings to show that Sadhu Singh has died subsequent to the decision of that issue in the previous proceedings. Indeed, the order passed by the trial Court on 5-2-1949, shows that the applicants were allowed to make another application alleging that Sadhu Singh was dead or should be presumed to be dead. That being so, I find that the orders passed on 30-8-1948, and 5-2-1949, do not operate as res judicata in these proceedings.

Then, in the suit out of which these proceedings have arisen Chatar Singh Plaintiffs applied for the amendment of the plaint on 28-10-1948, alleging that Bogha Singh Defendant had died on 6-10-1948. On those facts Chatar Singh Plaintiff applied for the conversion of the suit instituted by him into one for possession of the suit property. The application for amendment was allowed on the date that it was made and in pursuance of the order of the Court the Plaintiff has amended the plaint. In those proceedings Harnail Singh, one of the sons of Sadhu Singh, made an application alleging that he and his two brothers, Karnail Singh and Gurnek Singh, were in possession of the property in suit as owners and in any case they were intermeddlers with the estate of Bogha Singh deceased and as such were his legal representatives. The application was, however, disallowed on the finding that Karnail Singh, Jarnail Singh and Gurnek Singh were not the legal representatives of Bogha Singh.

Finally, on 26-11-1948, Jarnail Singh and Harnail Singh relying upon a certificate issued by the Senior Record Officer of the Army authorities applied that they may be brought on the record of the civil suit No. 136 of 1942, being necessary parties to those proceedings. In this application they then alleged that they were in possession of the suit property and that Sadhu Singh must be deemed to be dead as the Army authorities have declared that all prisoners of war must be deemed to be dead with effect from 1-11-1948. The certificate of the Record Officer of the Army reads:

It is certified that No. 14521 I.O. Jem. Sadhu Singh son of Nikka Singh of village Gorsian, District Ludhiana, embarked for service overseas (Far East) on 6-3-1941, with his Unit 1/14th Punjab Regiment. He became Prisoner of War on 15-2-1942, and since then no news having been received about him, the Government of India have decided to presume him dead w.e.f. 1-11-1948 and family pension is being granted to his widow Sh. Jair Kaur. For all purposes he will, therefore, be considered as dead.

The trial Court has, however, come to the conclusion that the certificate of the Record Officer of the Army has no legal force in these proceedings.

Now Secton 12 of the Act reads:

If any Court is in doubt whether for the purposes of Section 10 or Section 11, an Indian soldier is or was at any particular time serving under special conditions, or has died while so serving or as to the date of such death or as to the date on which official intimation of such death was sent to his next of kin by the authorities in India the Court may refer the point for decision of the prescribed authority, and the certificate of that authority shall be conclusive evidence on the point.

From a perusal of Section 12 it appears that reference u/s 12 can be made for the decision of any one or more of the following points: (i) whether the soldier was at any particular time serving under special conditions; (ii) whether the soldier as serving under special conditions at the time of his death; (iii) the date of death of the soldier; and (iv) the date on which official intimation of the death of the soldier was sent to his next of kin by the authorities in India.

Now, the certificate of the prescribed authority is "conclusive" evidence on the points referred to the prescribed authority. In other words, the certificate must necessarily be accepted as correct even though there may be a glaring proof of the incorrectness thereof. If the certificate recites that the soldier was serving under special conditions at the time of his death the recital of the fact in the certificate shall be conclusive evidence on the point.

But it is said that the conclusive presumption raised u/s 12 arises only in proceedings u/s 10 or Section 11 of the Act, and Mr. Nathu Lal Wadehra contends that there are no proceedings pending in the trial Court u/s 10 or Section 11 of the Act. He then contends that in any case the revision petition put in this Court does not fall within Section 115 Code of Civil Procedure, 1908.

Dealing with the last contention first, the point that arises for determination is whether Sadhu Singh has died while serving under special conditions within the meaning of Section 3 of a Act. As shown above, the certificate of the prescribed authority u/s 12 has been declared to be conclusive evidence on this point. Now, if the trial Court was not satisfied about the death of Sadhu Singh, then it was clearly the duty of the trial Court to refer the point for the decision of the prescribed authority and treat the certificate of that authority as conclusive evidence on the point. This has not been done with the result that the procedure prescribed for enquiry in such cases has not been followed. But it is said that the trial Court was not bound to make a reference to the prescribed authority. On this point reliance is placed on the language of Section 12 of the Act, which shows that it is optional with the Court to make or not to make a reference to the prescribed authority for the decision of any of the points mentioned in the section; but it will ordinarily be difficult to decide the points in volved by the ordinary method of production of evidence in Court, and as remarked by Bevan-Petman J., in Gurbachan Singh v. Ralla Ram 56 I.C. 947 AIR 1920 Lah. 427, when the Court is in doubt as to whether a party can be said to be serving under war conditions or not, it ought to refer the matter to the prescribed authority and act on the certificate given by such authority. Indeed, the trial Court in the present case has not noticed the provisions of Section 12 of the Act. On these facts I am clearly of the opinion that the trial Court has acted with material irregularity in the exercise of its jurisdiction and that the case falls within Section 115, Code of Civil Procedure, and can be revised if the other conditions of that section are satisfied.

As already stated, Chatar Singh Plaintiff applied on 5-11-1947, that the legal representatives of Sadhu Singh should be brought on the record alleging that Sadhu Singh had died in 1942. That application failed for want of proof. Even at that stage the trial Court did not take action u/s 12 of the Act. Now the point arising in those proceedings is whether Sadhu Singh has died while serving under special conditions within the meaning of Section 3 of the Act and this point can only be satisfactorily determined if the procedure prescribed in Section 12 of the Act is followed. As shown above, no steps have been taken by the trial Court u/s 12 of the Act.

Finding, as I do, that the previous orders do not operate as res judicata in these proceedings and that no steps have been taken by the trial Court u/s 12 of the Act, I allow this petition for revision set aside the order passed by the trial Court on 14-4-1949, and remit the case to the trial Court for the trial of the case in accordance with the observations made above.

Considering, however, all the circumstances of the case, I leave the parties to bear their own costs in these proceedings.

Parties are directed to appear in the trial Court on 26-6-1950.