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Petitioner: RANGALAL SUTRADHAR VS Respondent: SATISH CHANDRA PODDAR
P L D 1960 Dacca 52
P L D 1960 Dacca 52
Before Asir, J
RANGALAL SUTRADHAR and others‑Appellants
versus
SATISH CHANDRA PODDAR‑Respondent
Second Appeal No. 490 of 1954 decided on 16th December, 1957.
(a) Civil Procedure Code (V of 1908), Ss. 100 & 103 -Failure of lower Courts to investigate and come to a finding on vital basic question of fact‑Constitutes an error in law‑Second appeal competent.
There is no difference in principle between a failure to appreciate and determine the real question of fact to be tried, and failure to appreciate and determine a question of fact which vitally affects the issue. The failure of the Courts below to investigate and come to a finding on the vital basic question of fact constitutes an error in law against which, by virtue of section 100 of the Civil Procedure Code, 1908, a second appeal will lie.
Where the lower Court had gone into the question in a half- hearted manner as to whether in view of the dealings and con duct of the parties the property could be said to have assumed a debuttar character it was held, that in such a case simply because there had been some finding of fact the High Court should not be deemed to be not competent to exercise its powers under section 103 of the Civil Procedure Code, 1908.
Sheikh Rahmat Illahi v. Mohammad Hayat Khan and others, 70 1 A 225 rel.
(b) Evidence Act (I of 1872), S. 32 (5)‑Deceased describing himself as widow of R in document appointing shebaits of debuttar property‑Document admissible to prove relationship of husband and wife between R and deceased.
Mouji Lal and others v. Mst. Chandrabati Kumari Mouji and another, 38 1 A 122 rel.
Monir's Principles and Digest an the Law of Evidence, Vol. I 4th Ed. p. 247 ref.
(c) Hindu Law‑Endowment‑ Dedication to charity need not necessarily be by instrument or grant‑Can be inferred from application of proceeds and family conduct.
Dedication to charity under Hindu Law need not necessarily be by instrument or grant. It can be established by cogent and satisfactory evidence of conduct of the parties and user of the property which show the extinction of the private secular character of the property and its complete dedication to charity.
Muddun Lal v. Sreemati Komul Bibee and others 8 W R 42 ; Sri Sri Gopal Jew Thakur through Narendra Nath Mondal v. Radha Benode Mondal and others 41 C L J 396 ; Menakuru Dasa rathami Reddi and another v. Duddu Kura Subba Rao and others A I R 1957 S C 797 ; Konwari Doorganath Roy v. Ram Chunder Sen and others 4 I A 52 ; Sachindra Kumar Goswami v. Hem Chandra Goswami 35 C W N 151 ; Nalam Pattabhi Rama Rao and others v. Mandavilli Narayana Moorthy and others 26 C W N 273 ; Markhu Mahto and others v. Saharai Mahto and others A I R 1940 Pat. 16 ; Dal Bahadur Singh and others v. Bijai Bahadur Singh and others 57 I A 14 and Genda Puri and another v. Chatar Puri I L R 9 All. I rel.
(d) Hindu Law‑‑Endowment‑Person in exclusive possession of debuttar property competent to appoint shebait.
In the absence of any other mode of devolution, a Hindu in exclusive possession of debuttar property is competent to ap point a shebait and thereby make better arrangements for the provision and maintenance of the deity concerned.
Suresh Chandra Bose for Appellants. Asaduzzaman Khan for Respondent.
JUDGMENT
This case has got a chequered career. The present Second Appeal arises out of a suit for ejectment, and recovery of arrears of house rent with compensation, which was dismissed at the first instance by the trial Court, and decreed by the first Appellate Court, but was sent back on remand by this Court, and has again been dismissed by the lower Appellate Court. It is against that decision of the lower Appellate Court that the present Second Appeal has been preferred by the plaintiffs‑appellants.
2. The plaintiff's case in brief was that the properties described in Schedule Ka, of which Schedule Kha is a part, and forms the subject‑matter of the present suit, was a debuttar property appertaining to the estate of deity Sri Sri Mahapravu. and that the defendant was inducted as a tenant into the property described in Schedule Kha. As the defendant proved a habi tual defaulting tenant, the plaintiffs as shebaits of that debuttar estate were obliged to take permission of the Rent Controller, and to sue the defendant in ejectment together with a claim for recovery of arrears of rent and compensation from the time when the period of notice as per Exh. 2 expired.
3. The defence, inter alia, was that the property des cribed in Schedule kha was not a debuttar property and that the plaintiffs were not entitled in law to claim eject ment in their capacity as shebaits. It was also denied that Ramanpriya Baisanabi was the legally married wife of the recorded owner Rakhaldas Bairagi. The definite case of the defendant has been stated in paragraph 12 of the written statement. It is said therein that the persons mentioned in the plaint, namely, Prabhat Chandra De, Hem Chandra De and sons of Sitanath De having been declared to be owners and in possession on the basis of their purchase in respect of the property described in schedule Ka, the portion described in Schedule Kha, besides another property, was let out to the defendant on an annual rental of Rs. 21‑14‑0.
4. The suit was dismissed by the trial Court on the ground that the property described in Schedule Ka was not a debuttar property. The learned Munsif found himself also unable to hold that Ramanpriya was the legally married wife of Rakhaldas or that she was the sole heir of Rakhaldas, and could become a shebait. That decision was, however, reversed by the first Appellate Court against which a Second Appeal to this Court was preferred and allowed, and the matter was sent back to the lower Appellate Court for further investigation. In the remand order of this Court, as passed on 19th May 1952, in Appeal from Appellate Decree No. 202 of 1948, Guha, J., observed in the following manner:
"The trial Court found favour with the defence, but the learned Additional District Judge says that the plaintiffs have been able to establish not only that they were shebaits, but that the property in dispute was a debuttar property. Before me, Mr. Bose appearing for the plaintiffs‑appellants contended that it would not lie in the month of the defendant to deny the character of the plaintiffs. I shall not decide this point one way or the other ; because, it may prejudice either of the parties. It can only be said generally that in a suit in ejectment the plaintiff must have to prove his case in the plaint before he can succeed to eject the defendant. The learned Additional District Judge has not kept in view the real point that arises in the case, namely, whether the properties were first of all debuttar, and, secondly, whether the plaintiffs were shebalts in which characters they came before the Court to get relief. In short, the decision of the Court of Appeal below does not seem to follow the well‑known principles which have been enunciated by high authorities in a matter like the present."
After this observation, Guha, J., was pleased to allow the appeal, and set aside the judgment and decree of the lower Appellate Court, and remanded the case to that Court for decision in accordance with law.
5. It is not disputed by the learned Advocate appearing before me that this order of remand was an open order, and the direction in effect was for further investigation and determination according to law. After this remand, the learned Additional District Judge found in favour of the defendant on the question as to whether the property was or was not debuttar, and on the further question as to whether Ramanpriya was the legally married wife of Rakhaldas. The appeal before him was, therefore, dismissed, and the learned Munsif's judgment and decree dismissing the suit were directed to stand.
6. Against this decision, the plaintiffs have preferred the present Second Appeal as stated above.
7. Mr. Bose appearing for the plaintiffs‑appellants contends that the learned Additional District Judge has failed to appreciate the real issues before him, and, as a consequence, there has been wrong determination of the questions relevant for the purpose of the disposal of the suit. He further contends that the learned Additional District Judge was wrong in confining himself mainly to the question whether in the event of the property being a debuttar endowment, it could be said to have been dedicated by Rakhaldas Bairagi, and in not considering the question as to whether at the time of induction of the defendant as a tenant or at the time of the institution of the suit for ejectment out of which this appeal has arisen the property in question had the character of a debuttar property. His further contention is that he has not appreciated and considered the evidence, particularly the documentary evidence on record, according to law. He contends that on a correct approach, according to law, the materials on record should have been found sufficient for supporting the theory that the property in question was a debuttar one, and further that Ramanpriya was a legally married wife and sole heir of Rakhaldas Bairagi, and, as such, she was competent to appoint‑shebaits as per Exh. 1 (b).
8. Mr. Asaduzzaman Khan appearing on behalf of the contesting defendant‑respondent, on the other hand, contends that the findings of fact are not liable to be disturbed in a Second Appeal like the present one. He also contends that though the documents, Exh. I series, have been admitted into evidence, yet the statements made therein cannot be considered as admissions being in favour of the makers or their legal repre sentatives in view of sections 17 and 21 of the Evidence Act. He also points out that in view of the order of remand, as passed by this Court, it was clear that the onus of proving the property as debuttar property lay upon the plaintiffs, and the further onus of proving that the plaintiffs were the shebaits also lay upon them.
9. Mr. Bose, on the other hand, further submits that taking the onus upon himself the evidence on record, if considered properly according to law, will sufficiently 'indicate that the onus which lay upon his clients was discharged, and, in view of the fact that the defendant does not set up any title in himself with regard to the property in suit except as a tenant, there must be an irresistible conclusion that the defendant in his turn has failed to prove any purchase, as set up in paragraph 12 of the written statement.
10. Before I proceed further, I think it necessary it consider as to whether in a case where it seems' determination of real issues before the Court has not been made according to law, I can at all interfere on the authority of section 103 of the Code of Civil Procedure.
11. Mr. Bose contends that the documents or the statements made therein upon which he relies cannot be said to be mere historical matters. They really form the basis upon which the right of the plaintiffs to sue as shebaits in relation to the debuttar property is founded. As such, construction of such documents really raises questions of law, and cannot be brushed aside on the theory that they are mere ordinary historical materials upon which a finding of fact being based cannot be disturbed. At page 16 of the Paper‑Book, the learned Additional District Judge says:
"On full consideration of all the evidence on the record, it no doubt appears that for a considerable period the disputed property was treated as debuttar, but there is no definite and satisfactory evidence to show who had made the dedication and when and under what circumstances it was made."
This indicates that the learned Additional District Judge was influenced more by the consideration as to whether there was direct dedication by Rakhaldas Bairagi than by the consideration as to whether the property at the relevant time of the induction of the defendant as a tenant or at the time when the present suit was brought could be characterised as debuttar or not. It is now well‑settled that an endowment under the Hindu' Law can have its origin in a direct dedication, and that it can also be established by proving that the property came to be used as debuttar property, and that its secular character was extinguished in the eye of law. The learned Additional District Judge goes into the question in a half‑hearted manner as to whether in view of the dealings and the conduct of the parties the property could be said to have assumed a debuttar character. He does not, however, consider all the relevant evidence on the record in that light. In such a case I should think that simply because there has been some finding of fact, this Court should not be deemed to be not competent to exercise its powers under section 103 of the Code of Civil Procedure. Their Lordships of the Judicial Committee of the Privy Council in the case of Sheikh Rahmat Illahi v. Mohammad Hayat Khan and others (70 I A 225) have clearly laid down that "there is no difference in principle between a failure to appreciate and determine the real question of fact to be tried, and a failure to appreciate and determine a question of fact which vitally affects the issue stated in the case, and, in the latter case, the failure of the Courts below to investigate and come to a finding on that vital basic question of fact equally constitutes an error in law against which, by virtue of section 100 of the Code of Civil Procedure, a Second Anneal will lie."
12. I would first take up the question of legal marriage as between Rakhaldas Bairagi and Ramanpriya Baisnavi as raised in the present case. Their Lordships of the Privy Council in the case of Mouji Lal and others v. Mst. Chandrabati Kumari Mouji and another (38 1 A 122) have indicated that it is an extremely strong presumption in favour of the validity of a marriage and the legitimacy of its offspring that from the time of the alleged marriage the parties are recognised by all persons concerned as man and wife, and so described in important documents and on important occasions. The like presumption applies to the question whether the formal requisities of a valid marriage ceremony were satisfied. , In the present case, whatever evidence is there on record is from the side of the plaintiffs, to the effect that Ramanpriya Baisnavi was regarded as the wife of Rakhaldas Bairagi ; there is no counter‑evidence on record indicating that she was not so. Apart from that, Ramanpriya describes herself as the widow of Rakhaldas in the document, Exh. 1(b) while appoint ing three shebaits in respect of the property in question as debuttar property. This seems to be a very relevant piece of evidence under clause (5) of section 32 of the Evidence Act. It is not disputed that Ramanpriya is long dead. It cannot also be disputed that she had special‑ means of knowledge within the meaning of clause (5) of section 32 of the Evidence Act: It will not be unprofitable here to quote a sentence from Munir's Principles and Digest of the Law of Evidence, Vol. I, 4th Edition. At page 247 of the said treatise, the learned author says:
"A statement made by a deceased person that there was a, marriage between him and a certain woman is admissible in evidence to prove the legitimacy of his children."
13. In my view, therefore, in the absence of any evidence to the contrary, it should‑ be held that the presumption of a lawful marriage arising out of the fact that Rakhaldas and Ramanpriya lived as man and wife, as indicated in the statement made in Exh. 1 (b), as also in the evidence given by P. Ws. 2 and 3, cannot be said to have been rebutted by the tenant‑defen dant. There is no evidence that Rakhaldas left any other heir as reversioner or otherwise besides Ramanpriya. As such she should be regarded as the legally married wife and sole legal representative of Rakhaldas Bairagi. The property, whether secular or otherwise, in the absence of any other disposition, would, therefore, descend on her, though in a limited interest according to Hindu Law. The question as to whether the property concerned was a debuttar property or not seems to be the main question to be decided in the present case. The learned Advocate for the appellants relies upon certain decisions reported in 41 C L J 396, 8 W R 42 and also upon a decision reported in A I R 1957 (S C) 797. On the authority of those decisions, the learned Advocate contends that the conduct of the parties in dealing with the property in question should have been considered by the lower Appellate Court. In his view, the test is as to whether the secular character of the property came to be extinguished in favour of a debuttar character of the same. As such, he contends that it is not very much material as to whether Rakhaldas made a direct dedication in his life‑time, if the pro perty was used as a debuttar one. Admittedly, it devolved on Ramanpriya Baisnavi who treated the property as debuttar, and dealt with the same accordingly. It has been held in the case Muddun Lal v. Sreemati Komul Bibee and others (8 W R 42) that:
"Documentary proof is not absolutely necessary to prove an endowment, and that the mere fact of the proceeds, of any land being used for the support of an idol may not prove that those lands formed an endowment for the purpose ; but where there is apparently good evidence going for more than half a century that the land was given for the support of an idol, proof that from that time the proceeds had been expended would be strong corroboration".
In the case of Sri Sri Gopal Jew Thakur through Narendra Nath Mondal v. Radha Benode Mondal and others (41 C L J 396) it has also been indicated that:
"A deed is not necessary for a valid dedication. Dedication may be inferred from application of proceeds and family conduct. The test of a bona fide or a nominal endowment is to see how did the founder treat the property, or how have his descendants treated it."
In the case of Menakuru Dasarathaml Reddi and another v. Duddu Kura Subba Rao and others (AIR 1957 S C 797) their Lordships have held (at page 800) that:
"The principles of Hindu Law applicable to the consideration of questions of dedication of property to charity are well- settled. Dedication to charity need not necessarily be by instrument or grant. It can be established by cogent and satisfactory evidence of conduct of the parties and user of the property which show the extinction of the private secular character of the property and its complete dedication to charity."
So, beginning from 1867 upto 1957 it seems to have been the recognised principle of Hindu Law that not only by direct evidence of dedication, but also by satisfactory and cogent evidence of conduct of the parties and user of the property, it can be proved that there has been extinction of the private secular character of the property and its complete dedication to charity.
14. The learned Advocate for the respondent on the authorities of certain decisions contends, however that in view of the evidence on record this property could not be regarded as a debuttar property. He has relied upon a decision in the case of Konwar Doorganath Roy v. Ram Chunder Sen and others (4 I A 52). In that case, however, their Lordships after consideration of the evidence held that the estate was not debuttar. At page 58 of 4 I A 52 their Lordships say:
"The proof of this deed of endowment, which is said to have been executed by the Rajah Mahanund, when it comes to be investigated, is of the most unsatisfactory description. First, the existence of such a deed at all is not clearly made out; and so far as the document, the rubicari of a former suit, is relied upon as shewing its contents, the description there given is so obscure that it is impossible to say whether the whole of the Mahal of Gopejan was included in the supposed dedication or not."
It was the case of the plaintiffs‑appellants in that case that the Mahal of Rajah Mahanund was included in the endowment in question. At page 60 again, their Lordships observe as follows:
"Therefore, in addition to the insufficiency of the proof to satisfy their Lordships with reasonable certainty that such a document really existed, there is so much obscurity in the language that it is impossible to say that if it did exist it included the whole of this Mahal."
Again, at page 62, their Lordships say:
"Therefore, there is not only weakness of proof on the part of the plaintiff, but a very strong presumption, arising from the conduct of the parties in the suit in question, that this was not debuttar property such as it is alleged to be on the part of the plaintiff."
It, therefore, seems that upon the evidence on record, and upon a consideration of conduct of the parties in relation to the disputed property in that case, their Lordships came to an independent finding that it was not a debuttar property. Each case should be judged on its own facts. As such, if upon con sideration of the evidence on record it is found in the present case that the property in question was debuttar property, such a course will not be contrary to the procedure followed in the case reported in 4 I A 52. The learned Advocate for the respondent has relied upon the case of Sachindra Kumar Goswami v. Hem Chandra Goswami (35 C W N 151). That was a suit for partition, and there being an absence of dedication altogether the property in question was ordered to be partitioned on certain conditions. The point for consideration never arose in that case as to whether by the conduct of the parties the property in question assumed the character of a debuttar property or not.
15. The learned Advocate for the respondent then contends that, in view of the decision in the case of Nalam Pattabhi Rama Rao and others v. Mandavilli Narayana Moorthy and others (26 C W N 273) the statements made in Exh. I series cannot be evidence, as they will amount to admissions on the part of the maker or the maker's representatives in his or her interest. As such, his contention is that, in view of section 21 of the Evidence Act, the evidence as can be made out from the statement in Exh. I (b) or any other similar exhibit cannot be considered. In my view, the facts of the present case are not similar to the facts in the case reported in 25 C W N 273 apart from the fact that section 21 of the Evidence Act makes an exception in regard to section 32 of the Evidence Act. It will not be out of place here to quote certain observations of the said learned author in his book "The Principles and Digest of the Law of Evidence", referred to herein above. At page 235, it is said:
"The presumption of law is that a person in possession of property is the absolute owner thereof. Therefore, declarations made by a deceased person tending to cut down, charge or fetter his presumably absolute interest are admissible as being contrary to his proprietary interest."
In the present suit it is nobody's case that after the death of Rakhaldas Bairagi the property in question came to be possessed by any person other than Ramanpriya Baisnavi. The learned author says again at the same page:
"A statement by a person that a certain property does not belong to him but belongs to another person is obviously against his interest, and, therefore, after his death admissible in evidence under section 32 (3) of the Evidence Act."
Again at page 238, the learned author says:
"The statement must be to the immediate prejudice of the declarant. 1t must be prima facie against the declarant's interest, that is to say, the natural meaning of the statement standing alone must be against the interest of the person who made it."
In the case of Markhu Mahto and others v. Saharaj Mahto and others (A I R 1940 Pat. 16) Fazle Ali, J., has observed as follows:
"In order to determine whether a certain statement is against the pecuniary or proprietary interest of the person making it, the statement itself, and not the nature of the transaction in the course of which the statement is made, is to be looked at."
If the test as laid down by his Lordship in this case is correct, as I think it to be so, then not merely the document, Exh. 1 (b), but also the statements made therein seem to be admissible under section 32, subsection (3) of the Evidence Act. In the case of Dal Bahadur Singh and others v: Bijai Bahadur Singh and others (57 I A 14 (18)) their Lordships of the Privy Council have observed in the following manner:
"Now there are two sections, and two sections alone of the evidence Act, by virtue of which the respondents claim that the widow's statement could be properly received. The first is section 32, subsection (3). Under that section a statement of a dead person can be admitted when it is against the pecuniary or proprietary interest of the person making it. The principle upon which such statements are regarded as admissible in…
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