Rajendra Prasad Bose vs Gopal Prasad Bose

Sen, J.

[After stating facts, set out as above, His Lordship proceeded as follows:--] There are therefore two points for consideration in this case. The first is whether the case satisfies the requirements of the proviso to Order 44, Rule 1, of the Code of Civil Procedure, and, secondly, whether extension of time can be allowed u/s 5 of the Limitation Act.

As regards the first point, it seems to us that we are entirely precluded from admitting the application unless we are satisfied that the decree is contrary to law or to some usage having the force of law or is otherwise erroneous or unjust. Those being the express words of the section it seems to us that the direction is mandatory.

Three points have been urged by the learned Vakil for the applicants, Mr. S.C. Chatterji, in order to support his contention that the case satisfies the requirements of the proviso to Rule 1 of Order 44.

Before I enter upon a consideration of those points, it is necessary to state in brief the nature of the suit and the points of contention between the parties.

The suit was instituted by the plaintiffs for the recovery of possession of extensive properties of the value of over two lakhs as reversioners upon the death of one Allahadini Dasi in September, 1920. One Ram Prasad Bose died on the 16th of February, 1869, leaving as it is alleged by the defendants a deed of anumatipatra duly executed as also a Will. He died rather suddenly on the day aforementioned having been stricken with cholera. It is said that as he was very anxious to see that his line was continued after his death, he took particular care to have a deed of anumatipatra executed on that date. After his death on the 26th of February, his father Golak Prasad Bose, who had been in the interior of the district, hurried to Balasore, the place where his son had suddenly died, and obtained from an old and faithful servant of his son the deed of anumatipatra and the Will and on that date, namely, the 26th February, 1869, he deposited these two documents with the Collector of the district together with an application praying that the Court of Wards might take over charge of the whole of the estate. Thereupon, it is said, an order was passed by the Collector on that very day in the following terms:

Two documents filed along with a petition not to be given to anybody until further orders.

These two documents lay in the Collector''s office all these years and it was after repeated applications by the defendants that they succeeded in obtaining a production of these documents from the Collector''s office at the trial of the suit.

It was contended by the plaintiffs at the trial that both these documents were forged and fabricated, that in point of fact Ram Prasad Bose was too ill on that day to be able to execute them, that he had no sound disposing capacity, that no adoption ever took place in pursuance of the instrument of anumatipatra, and that the contention that the adopted son, and since his death his son the present defendant, had been in possession of the estate was entirely a myth, the parson who had been in possession being Sreemati Allahadini Dasi the widow of Ram Prasad, deceased.

Mr. Chatterji has raised three points before us: the first is that the instrument of anumatipatra has not been produced from proper custody and, therefore, should not have been admitted as evidence under the provisions of Section 90 of the Evidence Act. In support of this contention he cites the ruling in Gudadhur Paul Chowdhry v. Bhyrub Chunder Bhattacharji (1880) 5 Cal. 918, where there is an observation that the mere fact of a certain document having been produced from a Court where it had been filed does not necessarily bring that document within the requirements of Section 90. As a general proposition we have ho doubt that it is perfectly correct but it depends upon the circumstances of each particular case. In the present instance we find that this document was submitted to the Magistrate and Collector with the express purpose that he might take the necessary steps in order to bring the estate under the management of the Court of Wards. It cannot be doubted that it is the Collector who is the person to be approached in the first instance for any such proceeding. The Collector records an order which on the face of it does not at all appear to throw any doubt upon the genuineness of the document. It is contended by Mr. Chatterji that the very fact that such an order was passed would show that the Collector doubted the genuineness of the document; but it seems to us that unless there is some evidence to that effect it is difficult to construe the order in that sense. In the above circumstances, the Court below was apparently entitled to accept the document, fifty-four years, old, as presumably genuine under the provisions of Section 90 of the Evidence Act.

[His Lordship then referred to the contention that the anumatipatra was a forged document and held that the contention was wrong.]

The last objection which the learned Vakil has put forward is that even conceding that the instrument was genuine, the actual adoption of Krishna Prasad Bose was not in accordance with the anumatipatra, and that on the contrary, it was in direct violation of the terms of the anumatipatra. The authority to adopt distinctly states that the plaintiff No. 2 known as Chemo should have the first chance of being adopted provided that there was nothing illegal in such adoption, and failing him some other boy according to the liking or choice of Allahadini Dasi might be adopted but with the opinion or approval of the father, Golak Prasad. Now it so happened that Golak Prasad died four years after the death of Ram Prasad, that is to say, in 1873, and it was not till the year 1884 that the adoption took place. It is also proved in the case that Allahadini Dasi was a mere girl, a minor of tender years, at the time when Golak Prasad died. Subsequently she found that there were troubles with regard to the estate and there were conflicting claims set up by other parties and with a view to set at rest all these disputes she thought that she would exercise the power given to her under the instrument to adopt. At that time the condition which was laid down in the anumatipatra that the approval and the opinion of the father should be obtained was impossible of performance. The question is whether in the circumstances the power to adopt failed altogether. The learned Subordinate Judge has held to the contrary and he has given his reasons which appear to be quite cogent and we do not see any reason to dissent from his view, unless and until all the evidence is placed before us at the time of the hearing of the appeal.

All that we are concerned with at the present moment is whether on the face of them the judgment and decree are erroneous or unjust. We feel constrained to say that we are not in a position to take that view. If the appeal is heard as an ordinary appeal it will be for the Court, before which it comes, to form its own conclusions upon all the evidence placed before it. In the view that we take, the application must be dismissed on this ground, and, therefore, we do not think it necessary at all to deal with the other matter, namely, as to the extension of time under, Section 5 of the Limitation Act.

Adami, J.

I agree.