Suchandra Bhusan Kumar Lal and Another vs Laloo Modi and Another

Harries, C.J.—This is a decree-holders'' appeal from an order of the learned District Judge of Bhagalpur dismissing an appeal from a learned Munsif in execution proceedings.

The decree-holders obtained a mortgage decree against the judgment-debtors for Rs. 1615-14-0 on 7th June 1939, and in the due course proceeded to execute the mortgage decree. There were three items of property comprised in the mortgage and the execution Court proceeded to value these in the execution proceedings separately, and the valuation arrived at in respect of items 2 and 3 have been accepted by the decree-holders, and no question arises on those valuations and the dispute is confined to the valuation of item 1. This item of property consisted of one pakka house and one kaehcha house standing on land of an area of 3� kathas. The decree holders valued the property at Rs. 900 whereas the judgment-debtors valued the pakka house at Rs. 4000 and the kaehcha house at Rs. 2000 making a total value of Rs. 6000 for the two houses and land. After hearing the parties, the learned Munaif valued the property at Rs. 2500. On appeal, the learned District Judge upheld the findings of the learned Munsif and dismissed the appeal.

Mr. Hareshwar Prasad Sinha has contended that the Courts below wrongly rejected certain kobalas tendered by him and the rejection of such evidence has vitiated the whole of their findings. The learned District Judge points out that the oral evidence of both parties in the case was worthless and that the case would have to be decided entirely upon documentary evidence. Certain documents Exs. 1, 1-a and 1-b bad been put in by the judgment-debtors, and a kabuliyat (Ex. A) had been put in on behalf of the decree-holders.

It is obvious, therefore, that documentary evidence was of importance in this case and yet we find that two kebalas relating to transfer of houses in the neigh hour hood were rejected toy the Munsif at the time of hearing. The result has been that the kebalas put in by the judgment-debtors were relied upon, whereas other kebalas which might have been of assistance were ruled out as inadmissible.

It appears that the decree-holders had called upon two persons to produce the kebalas in question and had filed certified copies of the same in the Court, though the judgment-debtors had not received the copies of the certified copies. "When the witnesses appeared in Court to produce the kebalas objection was taken to their admissibility and the trial Court ruled that the documents were inadmissible on a number of grounds.

In the first place, the learned Munsif held that as in the particulars of One of the kebalas required, no date of the same was given, the kebala produced by the witness could not be admitted in evidence. This appears to me to be highly technical ground for rejecting the document. The document had been called from the witness, and the witness produced it. If that was the document required, what difference did it make whether the demand for the document did not describe it as fully as it might? It was obviously the document which the witness had intended to produce, and that being so, he should have been allowed to prove it, so that it could be'' admitted in evidence.

Another reason given for the rejection of the two documents was that the documents were called from the husbands of the ladies in whose favour they were executed on the allegation that the ladies were the benamidars of their husbands. I cannot see that this is any ground for rejecting these documents. Normally, the husbands would appear in the Court to produce documents summoned from their wives who could very well be pardanashin ladies. In any event the husbands could prove that the documents were documents executed in favour of the wives even if the wives were not benamidars of the husbands. If they were benamidars of the husbands, naturally the husbands would be in possession of the documents. However, the matter is looked at, it is impossible to uphold the rejection of two documents on the ground that they were produced by the husbands of the ladies in question.

Lastly the learned Munsif pointed out that no copy of the list of documents was made over to the judgment-debtors and that appears to be another ground why the kebalas were rejected.

The learned District Judge does not deal with the question of rejection of these documents. He merely points out that they were rejected for what had been described as a technical mistake. In my judgment these two kebalas should have been admitted in evidence for what they were worth and their contents considered by the lower Courts before arriving at a valuation of this property. In my judgment justice demands that these documents should be considered before a final decision is arrived at. I would, therefore, set aside the order of the learned District Judge and remand the case to his Court and direct that he must give the decree-holders another opportunity of producing and proving two kebalas. The judgment-debtors must also be given an opportunity to cross-examine any witness called to prove these kebalas and also to tender such evidence as they may deem proper with a view to challenging the kebalas or the effect of them.

The kebalas should be proved and such evidence, as I have indicated, taken in the lower appellate Court. If possible, the two houses should be valued separately. Costs of this appeal will abide the event in the lower appellate Court. The cross-objection is not pressed and is dismissed. There will be no order as to costs.

Manohar Lall J.

I agree.