Suleiman Tigg and Others vs Cyril Tigg and Others

Wort, Ag. C.J.

This appeal arises out of an action for partition. The plaintiff is the appellant. The defence set up by the defendant was that there had been a partition of the properties. The question arose whether a certain deed which was unregistered could be taken in evidence in support of the defendant''s case. The learned Judge in the Court below ignoring the document has relied upon other evidence including the Reoord of Rights in support of the defendant''s case. Mr. Chattarji appearing on behalf of the plaintiff appellant relies upon Section 91, Evidence Act, which is as follows:

When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document...no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter except the document itself, or secondary evidence....

I have left out from my statement the words in the Section which are not relevant to the point. It is obvious that the document not being registered was inadmissible, but in my opinion the argument of Mr. Chattarji that other evidence is not admissible is an argument which cannot be sustained.

Amongst other cases the learned advocate relied upon the case in Bhukhan Mian v. Radhika Kumari Devi A.I.R.1938. Pat. 479, a judgment of my learned brother and myself in which we considered the effect of an unregistered mortgage deed in an action for redemption, and pointed out that the document being inadmissible it was impossible to look at the document for any collateral purpose, as such a purpose would be insufficient for the plaintiff''s case in that he had to prove the terms of the mortgage deed before he could establish his right of action. That case has no bearing upon the present case. The defendant here was not attempting to prove the terms of the contract within the meaning of Section 91, Evidence Act; he was merely trying to prove the factum of separation in order to defeat the plaintiff''s action. What the teems of the separation or the division of the properties were was not a matter which was material for the purpose of the defendant''s case and it was not a matter with which up to that stage the Court had any concern.

I think the question is disposed of by the decision of their Lordships of the Judicial Committee of the Privy Council in Varada Pillai v. Jeevarathnammal AIR 1919 PC 44 the relevant observations of their Lordships being at p. 292. Petitions were there sought to be put in evidence for the purpose of proving the gift, or perhaps to state it more accurately, for the purpose of resisting the plaintiff''s claim and showing the nature of possession of the defendant. Their Lordships of the Judicial Committee in discussing Section 91 make these observations:

It should be added that, although the petitions of 1895 and the change of names made in the register in consequence of those petitions are not admissible to prove a gift, they may nevertheless be referred to as explaining the nature and character of the possession thenceforth held by Doraisami.

It is needless to state that if the document itself was admissible to prove the possession, other evidence would be admissible to establish the fact in this case that there were circumstances which defeated the plaintiff''s action, the circumstances being that there had been already a partition. It is for that purpose and that purpose alone that the evidence in the case must be adduced by the defendant. Mr. Chattarji''s further argument is that the learned Judge relied entirely upon the Record of Rights. We cannot suppose that to be the fact. Although the judgment of the learned Judge very largely relates to that matter, there was other evidence in the case which is not disputed and in the circumstances cannot be disputed. Therefore in second appeal that point is not open Ito the appellants.

The authority of the Privy Council on the question of the value of the Record of Rights in proof of severance or separation is in Nageshar Bakhsh Singh v. Mt. Ganesha A.I.R.1920. P.C. 46 in which their Lordships pointed out that it; is slight evidence; a more recent decision; on the point is in AIR 1938 65 (Privy Council) . We were not concerned with the weight of the evidence in second appeal; we are concerned only with the question whether there was evidence.

In the circumstances it cannot be argued that there is no evidence, and therefore the matter is concluded. In my judgment the appeal fails and must be dismissed with costs.

Manohar Lall, J.

I agree.