Ramlochan Misra and another vs Harinath Misra and others

Coutts, J.—This is an appeal by the defendants against the decision District Judge of Patna. The plaintiffs and the defendants are admittedly agents of one Nathuni Missir.

The plaintiffs brought a suit for a declaration that the defendant No. 1 had renounced the world and had become a Sadhu and that thereby the plaintiffs had become entitled to a half share of the heritage, or, in the alternative if it was found that the defendant No. 1 had not renounced the world the plaintiffs claimed one-third of the property.

The suit was dismissed in the Court of first instance but on appeal to the District Judge the plaintiffs were declared to be entitled to joint possession of Nathuni''s heritage along with the defendant No. 1. Against this decision the defendants have appealed.

The sole question for decision in the suit was whether the plaintiffs and the defendants were in fact agents of Nathuni Missir and the first question argued in appeal before us is whether a certain document on which the defendants relied was admissible in evidence or not. This document, which is Exhibit D. is a genealogy, It is admittedly a copy and part of it is probably a copy of a copy.

The document was admitted without objection by the plaintiffs in the Court of first instance and it was relied on by the learned Subordinate Judge who decreed the suit in favour of the defendants.

On appeal to the District Judge he has held that although this document was admitted without objection still the plaintiffs were not stopped from contesting the document subsequently. In this view I am unable to agree. It has been held in a number of cases Chimnaji Govind Godbole v. Dinkar Dhondov Godbole (1887) 11 Bom. 320, Lakshman Govind v. Amrit Gopal (1900) 24 Bom. 591=2 Bom. L.R. 386 and Kishori Lall Goswami v. Rakhal Das Banerji (1904) 31 Cal. 155, that when a copy of a document has been admitted in the Court of first instance without any objection, the appellate Court is not entitled to allow any objection to be taken to its admissibility at the appellate stage. This is undoubtedly the correct view of the law.

It is, however, contended that the learned Dt. Judge has considered the question from another point of view and has held that even if the document is admissible it is not entitled to any value because the comparison of the copy with the original has been found by him to be unsatisfactory. Here again the learned Dt. Judge appears to have fallen into an error.

The document was admitted as secondary evidence, that is to say, it was admitted as being a true copy; and, in view of the decisions to which I have already referred, it was not open to the learned Dt. Judge, at the appellate stage, to consider whether in fact the provisions of the section had been complied with or not, when it was admitted without objection.

The learned Dt. Judge was therefore, not entitled to consider the evidence which was offered subsequent to the admission of the document in regard to comparison with the original.

There are other points in this appeal but we have not heard arguments on them because on this ground alone it is necessary to set aside the decree of the learned Dt. Judge and to remand this appeal for re-hearing. The whole appeal is to be re-heard. Costs will abide the result.

Das, J.

I agree.