Patna High Court
Ram Kirpal Choudhary And Ors. vs Mt. Munabati Kumri And Ors. on 24 January, 1957
Equivalent citations: AIR1958PAT477, AIR 1958 PATNA 477
JUDGMENT Ahmad, J.
1. This is an appeal by the, defendants first party against the judgment and decree dated 22-9-1951, passed by Mr. Satchitanand, Subordinate Judge, 1st Court, Monghyr, reversing those passed by Mr. B.N. Pathak, Additional Munsif, Begusarai.
2. The suit was for the declaration that the kebalas dated 17-5-1941 and 11-6-1941, both executed by Basudeo Choudhary, defendant 3rd party (defendant No. 15) who is the eldest brother of plaintiffs 2 and 3 and the son of plaintiff No. 1, were not binding on the plaintiffs and that the decree dated 14-4-1945, passed in Mortgage Suit No. 60 of 1942 was null and void.
3. The dispute between the parties relates to the southern half of plot No. 193 having an area of about 1 bigha 5 kathas and 161/2 dhurs. It appears that originally so long as Subans Choudhry, the husband of plaintiff No. 1, was alive, what belonged to his family in plot No. 193 was only its northern half. On 3-5-1924, Subans Choudhry executed a deed of mortgage in respect of that northern half of plot No. 193 in favour of defendants 4th party for a sum of Rs. 500/-. Subsequently on his death two documents of sale were executed on behalf of that joint family. The one was dated 17-5-1941.
Under the terms of that deed the southern half of plot No. 193 is shown to have been sold for a sum of Rs. 500/- to the defendant first party Ram Kirpal Choudhary. The entire consideration, however, of that sale was left with the vendee to redeem the mortgage dated 3-5-1924 executed by Subans Choudhry in favour of the defendants 4th party in respect of the northern half of plot No. 193. The other document of sale was dated 11-6-1941. This was in respect of the northern half of plot No. 193 and was executed in favour of its mortgagees defendants 4th party, for a sum of Rs. 600/-; and out of that consideration Rs. 500/-was to be appropriated by the vendee towards their mortgage money and only the remaining sum of Rs. 100/- was to be paid in cash to the executant of the document.
It is not denied that at the time when the aforesaid two sale deeds were executed the family of the executant had not yet acquired any interest in the southern half of plot No. 193 but were the owners only of its northern half. It is, therefore, obvious that the southern half of plot No. 193 could not then be sold by that family under the document dated 17-5-1941.
4. But in 1942 the defendants 1st party relying on the sale deed dated 17-5-1941, instituted a title suit bearing No. 60 of 1942 impleading therein the defendants 4th party, plaintiffs 2 and 3 and defendant No. 15 as defendants for the redemption of the mortgage deed dated 3-5-1924 as also for the declaration that what was in fact sold to the defendants 1st party under their sale deed D/- 17-5-1941 was the equity of redemption in the northern half of plot No. 193 and not its southern half. In the first two Courts that suit was dismissed.
But by the time when that matter came to be heard in the High Court in second appeal, an important event took place. That was that on 27-5-1942 the family of the plaintiffs purchased the southern half of plot No. 193 from the defendants 2nd party under a sale deed executed in the name of plaintiff No. 2. The result of this acquisition was that at the time when the appeal in the redemption suit was taken up for hearing in the High Court, the defendants first party at once fell upon the provision of law laid down in Section 43 of the Transfer of Property Act and prayed that because of that purchase in the family they were now in any case entitled at least to a decree for the southern half of plot No. 193.
The High Court on hearing the parties accepted that contention and allowed the appeal in those terms on 30-9-1947. That decree was, however, subject to the condition that the defendants first party would be entitled to recover possession of the southern half only on cash payment of the consideration money, namely. Rs. 500/- as stipulated in the sale deed dated the 17th May, 1941 to its executant.
5. It may be noted here that in that suit for redemption plaintiff No. 2 being minor was represented by a pleader guardian but plaintiff No; 1 was not a party to it .
6. Thereafter on 28th April, 1948, the present suit was instituted on behalf of three persons, namely, (1) Mosst. Munabati the widow of Subans Choudhary (plaintiff No. 1); (2) her minor son Chandi Choudhary (plaintiff No. 2) and (3) her major son Sukhdeo Choudhary (plaintiff No. 3). In this plaint plaintiff No. 2 was, represented under the guardianship of his mother (plaintiff No. 1). On the other side four parties were impleaded as defendants. Defendants first party were the vendees under the sale deed of 17th May, 1941.
Defendants 2nd party were the original owners of the southern half of plot No. 193, Defendants 3rd party was the eldest son of plaintiff No. 1, who had executed the sale deeds, dated 17th May, 1941 and 11th June, 1941, and defendants 4th party were the purchasers under the sale deed dated llth June, 1941. The substantial allegations made in the plaint of this suit were (1) that though the sale deed dated 27th May, 1942, had been executed in the name of her minor son (plaintiff No. 2), it was really plaintiff No. 1, the widow of Subans Choudhary, who had purchased the southern half of plot No. 193 and it was she who had paid its consideration out of her own personal fund, (2) that plaintiff No. 1 was the guardian of plaintiff No. 2 at the time when, the sale deed dated 17th May, 1941, was executed and, therefore, defendant No. 15 could not execute that sale deed on behalf of his minor brother (plaintiff No. 2); (3) that no notice of the mortgage suit had been served on the pleader guardian and that in any case the pleader guardian appointed in the case for the minor plaintiff No. 2 was all along negligent in contesting the suit properly on behalf of the minor plaintiff No. 2.
And on these allegations reliefs sought, therein, as already stated, were that the kebalas dated 17th May, 1941 and 11th June, 1941 were not binding on the plaintiffs and that the decree passed in Mortgage Suit No. 60 of 1942 was null and void.
7. The two Courts below have concurrently found (1) that it was not plaintiff No. 1 who had purchased the southern half of plot No. 193 out of her own fund but that as a matter of fact that purchase was made by the joint family out of the joint family funds; (2) that plaintiff No. 1 was not the guardian of plaintiff No. 2 at the time when the sale deed dated 17th May, 1941 was executed but it was defendant No. 15; and (3) that the notice issued in the suit for redemption was duly served on the pleader guardian. They however, differed on two points.
The trial Court found that there was no negligence on the part of the pleader guardian in protecting the interest of the minor plaintiff No. 2 in the redemption suit and that the sale deed dated 17th May, 1941 was executed for the benefit of the family. On these findings, therefore, it dismissed the suit. In appeal, however, the lower appellate Court took a different view on these latter two points. It held that the pleader guardian was negligent in safeguarding the interest of minor plaintiff No. 2 in the redemption suit and that the sale deed dated 17th May, 1941, was not for the benefit of the family. The lower appellate Court, therefore, on these findings allowed the appeal, reversed the judgment of the trial Court and decreed the suit. Hence this second appeal now by the defendants first party.
8. Mr. Jagdish Chandra Sinha appearing for the appellants has attacked the judgment under appeal on three grounds (1) that the Court below was wrong to decide the case substantially on the footing as if the onus to prove negligence on the part of the pleader guardian in defending the interest of the minor plaintiff No. 2 in the redemption suit was on the defendants first party and not on the plaintiffs; (2) that even on merit, apart from the question of the validity of the decree passed in the redemption suit, the transaction of sale covered by the document dated 17th May, 1941, entered into on behalf of the joint family is a valid and legal transaction if not on the ground of legal necessity at least on the ground of pious obligation; and (3) that on the very averments made in the plaint of the present case the interest of the guardian, (plaintiff No. 1) is obviously adverse to that of the minor plaintiff No. 2 and as such the decree under appeal is hit by the proviso to Rule 4 (1) of Order 32, Civil Procedure Code and is therefore, void ab initio and nullity.
9. So far as the third point is concerned, that I think on the very face of it is without substance. Rule 4 (1) of Order 32, Civil Procedure Code says :
"Any person who is of sound mind and has attained majority may act as next friend of a minor or his guardian for the suit;
Provided that the interest of such person is not adverse to that of the minor and that he is not, in the case of a next friend, a defendant, or, in the case of a guardian for the suit, a plaintiff."
The procedure laid down in the proviso to Rule 4 (1) has been enacted to safeguard the interest of the minor. Therefore, it is the minor alone, who may attack the validity of a decree, if any, passed against him in a manner contrary to the provisions laid down in the proviso to the said Rule 4 (1) or allowed to be passed against him under a guardian not qualified to represent him. (Madhusudan v. Jogendra, ILR 23 Pat 640: (AIR 1945 Pat 133) (A)). In other words, the contravention, even if any, of this provision is not to make the decree void ab initio or nullity but only voidable. Accordingly a decree, even if passed in contravention of the proviso will remain a valid decree unless avoided by or on behalf of the minor. Therefore, there is no substance in the contention that the decree in this case which happens to be in favour of the plaintiff respondent minor should be held as void or nullity simply on the ground that on the averments made in the plaint the interest of the guardian appears to be adverse to that of this minor, Mr. J. C. Sinha in support of his contention that such a decree is under law a nullity has laid reliance on the decision in Rashid-un-nisa v. Mohammad Ismail Khan, ILR 31 All 572 (PC) (B). I think that decision does not in any way support Mr. Sinha on the point he has raised here. In that case the suit had been instituted on behalf of the minor himself. Therefore, that by itself makes the vital difference. Then, the prayer made on behalf of the minor in that case was to set aside some decrees passed against him as also sales held in execution thereof. In those circumstances a question arose as to whether in view of the law which is now enacted under Section 47, Civil Procedure Code, and was then provided in Section 244, such a suit was maintainable. In other words, the main question that came up for decision in that case was as to whether the minor in that case could be on the allegations made held as included in the phrase "parties to the suit". In answer thereto then Lordships of the Privy Council held.
"that the minor had not been properly represented in the litigation, and that a suit by her to set aside decrees, and sales which had taken place in execution of them, and as to which she alleged fraud and breach of trust was not barred by Section 244."
That being so, it cannot be said to have laid down any such proposition as is now contended by Mr. Sinha before me. Therefore, the third contention fails.
10. Now I take up the second contention. On principle Mr. Sinha is correct to say that under the Hindu Law of Mitaksbara a son is under pious obligation to discharge the debt incurred by his father provided the same has not been incurred for any immoral purpose.
And on the facts of this case this much, is also correct to say that the debt under the mortgage document dated 3rd May, 1924 was incurred by Subans Choudhary, the father of plaintiffs 2 and 3 and defendant No. 15 but these facts alone cannot be held sufficient to make that mortgage binding on the estate of the joint family as against his sons unless it is further found that the mortgage was executed by the father to pay an antecedent debt not tainted with immorality for which here there is no evidence (Brij Narain v. Mangla Prasad, ILR 46 All 95: (AIR 1924 PC 50) (C)).
Nor there is any material on the record to show that the consideration of the sale deed dated 17th May, 1941 or any part of it was ever appropriated towards the satisfaction of the debt incurred under the mortgage document dated 3rd May, 1924. On the contrary, the evidence as it stands on the record shows that the vendee had no occasion to satisfy that debt and as a matter of fact the debt under the document dated 3rd May 1924 was satisfied by the consideration of the sale covered by the document dated 11th June, 1941.
Further though in the eye of law the sale deed dated 17th May, 1941 could attract the property subsequently purchased by the family on 27th May, 1942 yet it could not confer any title on the vendee in that property at least up to that date. Therefore, the liability, if any, on the vendee to pay the consideration money, as stipulated in the document dated 17th May, 1941, could not and did not arise until he decided to take the advantage of the transaction made on 27th May, 1942.
But by that time, as already stated above, the debt under the mortgage document dated 3rd May, 1924 had already been wiped out as a result of the transaction entered into by the family under the sale deed dated 11th June, 1941, Therefore, not only that there is no evidence whatsoever that any consideration covered by the document dated 17th May, 1941 was at all appropriated towards the satisfaction of the debt covered by the mortgage document dated 3rd May, 1924 but further that by the time the joint family had acquired the southern half of plot No. 193 under the document dated 27th May, 1942 the very pious obligation even if any for the sons to pay the debt constituted i.e. under the document dated 3rd May 1924 had ceased to exist and it was obviously for that reason that though the kebala initially was for paying off the sudbharna money, the High Court by its judgment directed the consideration to be paid in cash to the vendor, thus leaving no title in the vendee to redeem the mortgage referred to therein.
Therefore, on this latter ground alone, apart from other considerations, the contention based on the doctrine of pious obligation fails. That being so, it is not necessary to give any decision on another small contention raised in this connection by Mr. Sinha that appropriation or no appropriation the very fact that the sale deed dated 17th May, 1941 was expressed to be executed with a bona fide motive to pay off the debt covered by the mortgage document dated 3rd May, 1924 is by itself sufficient to establish that the sale entered into thereunder was made for the discharge of the debt incurred by the father of the executant.
11. Now remains the first point which alone now is left to be disposed of. It has been contended by Mr. Sinha that the evidence on the record is not at all sufficient in law to support the finding arrived at by the lower appellate Court contrary to what was held by the trial Court that there was gross negligence on the part of the guardian-ad-litem in defending the interest of minor plaintiff No. 2 in the suit for redemption filed by the defendants first party. In raising this point he has drawn my attention with special stress on the following passage in the judgment under appeal:
"Fraud or collusion of the guardian though suggested in the Court below has not been reiterated before me. The question then is whether there was gross negligence. It must be stated at the outset that no positive evidence in proof of gross negligence has been relied upon before me. This has been sought to be inferred only from circumstances.
Now the plaint of the Title Mortgage Suit (Ext. 4) shows that defendant No. 15 and plaintiffs 2 and 3 were defendants 9 to 11 (defendants 2nd party). Plaintiffs 2 and 3 both were sued as minors and one Mlv. Md. Sheib, Pleader, was appointed their guardian. The relief prayed for in that suit, it is important to note, was redemption on adjudication of title on the basis of the kebala in question. The judgment Ext. 6 of the trial Court shows that only defendants 1st party, that is, the present defendants 4th party, entered appearance and contested the suit.
There is no mention of the appearance of defendants 2nd party, that is, the present plaintiffs 2 and 3 and defendant No. 15 or any written statement by the guardian-ad-litem of plaintiffs 2 and 3. It is possible that the guardian-ad-litem did not file any written statement because no relief against defendants 2nd party, the present Plaintiffs 2 and 3, and defendant No. 15, was sought.
It should, in this connection, be also mentioned that though the kebala by which the southern portion was acquired came into existence while the suit was still pending in the trial Court, nothing on behalf of the present defendants 1st party appears to have been made of it. In the High Court also where the acquisition of the southern portion was first put forward, the guardian-ad-litem does not seem to have appeared or said anything.
The judgment of the High Court, Ext. B does not show that. Now when the subsequent acquisition was put forward in the High Court many things could have been said by the guardian; for instance, that the kebala dated 17-5-41 was without legal necessity, that the acquisition of the southern portion being in the name of plaintiff No. 2 it was his acquisition or, as it has been said in this suit, it was the acquisition of plaintiff No. 1 that defendant No. 15 was not the guardian of plaintiff No. 2 etc. The failure of the guardian to appear and say all this in answer to the contention that the family had since acquired the southern portion, it has been argued, amounts to gross negligence on the part of the guardian-ad-litem. The contention in my opinion is irresistible. I would, accordingly, hold disagreeing with the learned Munsif that there was gross negligence on the part of the guardian-ad-litem."
This passage clearly shows that the inference of gross negligence on the part of the guardian-ad-litem is mainly based firstly on the ground that there is no mention of appearance of plaintiffs 2 and 3 or defendant No. 15 or of any written statement having been filed on their behalf in the judgment of the trial Court (Exhibit 6) and secondly on the ground that the judgment of the High Court (Exhibit B) does not show that the guardian-ad-litem ever appeared or said anything on behalf of or in the interest of the minor in that Court while the matter was heard there.
Therefore, it has been argued that if the contents of the two judgments, namely, the judgment of the trial Court (Exhibit 6) and the judgment of the High Court (Exhibit B) or the circumstances arising therefrom are shown to be irrelevant then there is no evidence left on the record to support the finding of gross negligence on the part of the guardian-ad-litem.
That may be so. But in my opinion the very premise that the facts stated in the two judgments (Exhibits 6 and B) as to the course of proceedings or the circumstances arising therefrom cannot be used as relevant evidence in the present proceeding to prove negligence on the part of the guardian-ad-litem is difficult to he sustained. Mr. Sinha in support of his contention that the two judgments are not admissible for that purpose has laid reliance on. Taylor on Evidence, Tenth Edition, para 1711 at page 1238 and the decisions in Abinash Chandra v. Paresh Nath, 9 Cal WN 402 (D); Baidya Nath Dutt v. Alef Jan Bibi, 36 Cal LJ 9 at p. 14: (AIR 1923 Cal 240 at p. 243) (E); Khub Narain v. Ramchandra Narain, ILR 28 Pat 890 at p. 906: (AIR 1951 Pat 340 at pp. 345-346) (F); Indra Singh v. Commissioner of Income-tax, B. & O., ILR 22 Pat 55 at p. 67: (AIR 1943 Pat 169 at p. 173) (G) and Kashi Nath Pal v. Jagat Kishore, 20 Cal WN 643 at p. 644: (AIR 1916 Cal 176 at pp. 176-177) (H).
12. In ILR 22 Pat 55: (AIR 1943 Pat 169) (G), a Division Bench of this Court in dealing with the question of admissibility of a judgment observed as follows :
"In 20 Cal WN 643 at p. 644: (AIR 1916 Cal 176 at pp. 176-177) (H), a Division Bench of the Calcutta High Court pointed out that 'The principle that all judgments are conclusive of their existence, as distinguished from their truth; judgments, as public transactions of a solemn nature, are presumed to be faithfully recorded. Every judgment is, therefore, conclusive evidence, for or against all persons whether parties, privies, or strangers, of its own existence, date and legal effect, as distinguished from the accuracy of the decision rendered; in other words the law attributes unerring verity to the substantive as opposed to the judicial portions of the record.
Attention may also be drawn to the remarks made by Lord Shaw when delivering the judgment of the Board in the case of Ram Parkash Das v. Anand Das, 43 Ind App 73: (AIR 1916 PC 256) (I). In that case one of the disqualifications relied upon to invalidate the right of the mahant was that he had entered into a tie of marriage, but this fact was in dispute. In order to prove this fact reliance was sought to be placed upon the statement in a judgment in a criminal case in the course of trial whereof it was alleged that a person who knew the circumstances made a statement on oath that the defendant No. 2 was a married man. The Magistrate who tried the case stated in his judgment that an admission of the marriage was made in the course of it. Their Lordships held that the note of the admission made to the Magistrate in the criminal case was wrongly rejected as not being by itself evidence of the fact recorded therein."
In this passage, as it is obvious the learned Judges have dealt with the points on which an inter alios judgment may have a conclusive evidentiary value as also with the point that in no case the judicial portion of that record can be evidence of its truth,
13. In 9 Cal WN 402 (D), the question that came for consideration was as to how far a judgment between the partners can be used by a third party in a subsequent suit to show that one of them namely, Abinash was a partner with the other Jadu Gopal in certain colliery so as to make the former jointly liable for the payment of the rent to the landlord of the colliery. That means the question involved was as to how far a judicial finding given in a former suit between two persons can be used by a third party in his favour as against either of them in a subsequent suit. In dealing with this question Geidt J. observed :
"With regard to the admissibility of evidence the Courts in India are governed by the provisions of the Indian Evidence Act. Of no fact can evidence be given, unless the fact be either a fact in issue, or a fact which by that Act is declared to be relevant. The question as to the admissibility of former judgments was discussed by a Full Bench in Gujju Lall v. Fatten Lal, ILR 6 Cal 171 (J), and it was held that a former judgment which is not a judgment in rem, nor one relating to matters of a public nature, is not admissible in evidence in a subsequent suit, either as a res judicata, or as proof of the particular point which it decides, unless between the same parties or those claiming under them The case above cited was considered by another Full Bench on a reference by a Division Bench in Tepu Khan v. Rajani Mohun Das, 2 Cal WN 501 (K), and it was then held that having regard to two decisions of the Privy Council the rule laid down in ILR 6 Cal 171 (FB) (J), must be regarded as materially qualified because it is clear from those decisions that under certain circumstances, and in certain cases, the judgment in a previous suit to which one of the parties in a subsequent suit was not a party may be admissible in evidence for certain purposes and with certain objects in the subsequent suit.
The first of these decisions is Ram Ranjan Chakarbarti v. Ram Narain Singh, ILR 22 Cal 533 (PC) (L). The principal defendant in that case was in possession of certain Mouzahs within the plaintiff's Zamindari, and resisted the suit for ejectment on the ground that he had a permanent mokurrari tenure under a grant made by a ghatwal named Gambhir Singh prior to the permanent settlement. In support of the defence two decrees were put in evidence. The first of these decrees was passed in 1817.... The second decree was passed in 1842. .... Neither the plaintiff before the Privy Council nor his predecessors were parties to the suits in which the decrees of 1817 and 1842 were passed, but their Lordships held that the judgment of 1817 was admissible in evidence to show that the rent was paid for the possession at and prior to that date, nearly 80 years before. Their Lordships go on to say :
"Taken with the other evidence in the case, the respondents have thus established possession at a uniform rent for so long a period as to lead to the inference that the tenure was and is of a permanent nature The second decision of the Privy Council to which reference is made by the Full Bench in 2 Cal WN 501 (K), is Bhitto Kunwar v. Kesho Pershad Missir, 1 Cal WN 265 (PC) (M). In that suit the plaintiff sought to recover a share of certain property from Bacha Tewari, and the defence set up was that the share sued for was subject to a trust for religious and charitable purposes under a Will made by Bhawani in 1842, and that therefore, the last holder of the share had no right in the share which he could transmit to his heir, the plaintiff.
It appeared that in 1877, Bacha Tewari had made a mortgage of the property in dispute to Balgobind, who had obtained a decree upon it and had the property put up for sale in execution of the decree. In 1880 two persons who described themselves as managers of the Neti Bhandara of Bhawani Prasad Tewari brought a suit against Balgobind Das and Bacha Tewari to set aside the mortgage, the decree obtained on the mortgage and the sole under the decree. The judgment of the Privy Council in describing that suit runs as follows :
"The 1st and 2nd of the issues in that suit were: (1) Was the property in suit bequeathed for public charitable purposes? (2) Was the Will revoked by the testator in his life time? Upon these the Judge found that the estate was not bequeathed for charitable purposes and that the Will was revoked. The plaintiffs appealed to the High Court and the appeal was heard by a Full Bench the majority of whom affirmed the judgment of the lower Court and dismissed the appeal. This decision is not conclusive against Bacha Tewari, as the suit was not between the samel parties as the present suit, but their Lordships agree with the Subordinate Judge that it was admissible as evidence against him.
* * * * The conclusion then at which I arrive from a consideration of the cases I have cited is that the award made between Abinash and Jadu Gopal is not admissible as evidence in this case to prove that Abinash is liable to the plaintiff for the rent of the Thandabari Colliery."
This decision also, therefore, clearly deals with the admissibility of a judgment not inter partes.
14. The decision in 20 Cal WN 643: (AIR 1916 Cal 176) (H), relates to a suit for recovery of possession of a share of land on declaration of Shikmi Taluki right thereto. The subject-matter of the litigation was waste land in Mouza Gurai included in estates 51 and SO of the Collectorate of the District of Mymensingh. The estates were sold in 1853 for arrears of revenue and passed into the hands of one Bhowani Kishore Acharya Chowdhary, the predecessor-in-interest of the first defendant.
According to the plaintiff, the defaulting proprietor or his predecessor had created six Shikmi Taluks which comprised the whole village excluding 2 kanis of private land in the possession of the proprietor and some specific lands comprised in two other Taluks Chand Ram and Sova Ram. The plaintiffs set out their title by transfer and succession from the tenure-holders and alleged that they had been wrongly kept out of possession by the first defendant.
The first defendant defended the suit mainly on the grounds that the six Shikmi Taluks did not cover all the lands of the village to the exclusion of 2 kanis of proprietors' private lands and the specific lands of the two other Taluks already mentioned. They also contended that the six taluks did not exist from before the Permanent Settlement and that the plaintiffs had no right to the specific lands claimed by them. The suit was dismissed by the lower appellate Court.
On second appeal in the High Court two grounds were raised on behalf of the appellants (1) that reliance should not have been placed upon the facts stated in the report of the decision of the Judicial Committee in the case of Wise v. Bhoobuu Moyee Debia, 10 Moo Ind App 165 (PC) (N), which related to the same estate although not to the lands now in controversy; and secondly that the District Judge had allowed the defendant to succeed on a case not specifically made in the Court of first instance. In answer to the first question their Lordships observed :
"As regards the first ground, it is plain that, in the Court of first instance reference was made to the judgment of the Judicial Committee in 10 Moo Ind App 165 (PC) (N), in order to meet the objection that the Shikmi Taluks were not mentioned in the quinquennial papers of 1302. What happened in the lower appellate Court was that the defendant relied upon facts in the history of the title to his property, stated in the judgment of the Judicial Committee and the District Judge has made such facts the basis of his judgment.
The result has been that he has come to the conclusion that the plaintiff had failed to explain how two of their predecessors Ibrahim Abdul Musam could grant a valid sanad in 1807, and Asan Bibi another valid sanad in 1809. In our opinion the judgment of the Judicial Committee in a suit not inter partes, could not be used for the purpose for which it was used by the defendants in the Court below. It is well settled that although a judgment not inter partes may be used in evidence in certain circumstances, as a fact in issue, or as a relevant fact, or possibly as a transaction (ILR 22 Cal 533 (PC) (L); 1 Cal WN 265 (PC) (M); Dinomoni v. Brojmohini, 29 Ind App 24 (PC) (O); 2 Cal WN 501 (FB) (K); Malcomson v. O'Dea, (1863) 10 HLC 593 (P) and Bristow v. Cormican, (1878) 3 AC 641 (Q) ) the recitals in the judgment cannot be used as evidence in a litigation between the parties.
The principle is that all the judgments are conclusive of their existence, as distinguished from their truth; judgments, as public transactions of a solemn nature are presumed to be faithfully recorded. Every judgment is, therefore conclusive evidence, for or against all persons whether parties, privies, or strangers, of its own existence, date and legal effect, as distinguished from the accuracy of the decision rendered, in other words, the law attributes unerring verity to the substantive as opposed to the judicial portions of the record. We hold accordingly that the judgment of the Judicial Committee could not be used in proof of the fads stated therein, and the first ground must prevail."
This case also in my opinion perhaps deals with a judgment not inter partes and lays down that in any case recitals therein cannot be used as evidence in a subsequent litigation.
15. In the case of 36 Cal LT 9: (AIR 1923 Cal 240) (E), Mookherjee, J. while dealing with the similar question as to a judgment not inter partes observed:
"In this connection, we cannot overlook that although the judgment in the suit by Karimannessa against Abdul Kader, is admissible in evidence under Section 13 of the Indian Evidence Act, the findings contained therein cannot be treated as part of the evidence in this case. As was explained in 23 Cal LJ 583: 20 Cal WN 643: (AIR 1916 Cal 176) (H) and T. Seethapathi Rao v. R. Venkanna Dora, 42 Mad LJ 324: (AIR 1922 Mad 71) (FB) (R), it is not the correctness of the previous decision but the fact that there has been a decision, that is established by the production of the judgment. This is clear from the decisions of the Judicial Committee in 22 Ind App 60 (PC) (L); Bitto Kunwar v. Kesho Pershad, 24 Ind App 10 (PC) (S); 29 Ind App 24 (PC) (O); 43 Ind App 73: (AIR 1916 PC 256) (I) and Natal Land Co. v. Good, (1868) 2 PC 121 (T) and of the House of Lords in (1863) 10 HLC 593 (P) and (1878) 3 AC 641 (Q).
This fundamental distinction was not fully appreciated in the Court below, and references were made to the findings in the judgment in the previous suit as if they were a kind of inconclusive res ad judicata, while the essence of the matter is that it is not the correctness but the fact of the decision which is relevant."
On the same point, Taylor on Evidence (Tenth Edition) in its paragraph 1711 says :
"The distinction which exists between the admissibility and effect of judgments in rem and of judgments inter partes having now been pointed out, it will be expedient to refer shortly to some rules which equally govern them both. And first, it is an unquestionable rule of law, that neither a judgment in rem, nor a judgment inter partes, is evidence of any matter which may or may not have been controverted, or which came collaterally in question or which was incidentally cognizable, or which can only be inferred by argument from the judgment."
All these references, therefore, as is evident, deal with judgments in personam and when carefully analysed lead to three broad principles. Of these, the first is general and the other two special. They are : (1) that a judgment is conclusive evidence for or against all persons whether parties, privies or strangers only of its own existence, date and legal effect as distinguished from the accuracy of the decision rendered; in other words, the law attributes unerring verity to the substantive as opposed to the judicial portions of the record except upon matters of a public nature in which they may be evidence, though not conclusive, of that which they state; (2) that as between the same parties or those claiming under them a judgment is admissible also as res judicata or as proof of the particular point which it decides but in any case not of the recitals made therein; and (3) that under certain circumstances and in certain cases a judgment in a previous suit to which one of the parties in a subsequent suit was not a party may be admissible in evidence for certain purposes and with certain objects in the subsequent suit.
All these principles, as is evident from the references made as also from the commentary made by Woodroffe in his Law of Evidence (Ninth Edition), are founded on the assumption that a judgment is a public transaction of, a solemn nature and as such should be taken to be faithfully recorded and also that the record of a Court of justice has two portions (1) the substantive portion and (2) the judicial portion. In the substantive portion of the record the Court records or attests its own proceedings and acts while in the judicial portion the Court expresses its judgment or opinion on the matter in question and in forming that opinion it is bound to have regard only to the evidence and arguments adduced before it by the respective parties to the proceeding. And, as stated above, it is to the former as opposed to the latter that the law attributes unerring verity.
16. That being so, let us see how far these principles of Taw help Mr. Sinha in his contention. Before, however, I proceed to do it, it is necessary to note that the suit which gave rise to the judgments (Exhibits 6 and B); was between the same parties, namely, the defendants first party on one side and plaintiffs 2 and 3 along with others on the other and the question now raised in the present case is as to how far the decree passed in the former suit is binding on the present plaintiffs 2 and 3.
It is not denied that at the time when the suit giving rise to the judgments (Exhibits 6 and B) was litigated, plaintiffs 2 and 3 were minors and they were represented on the record of that case through a pleader guardian. The contention, however, of plaintiffs 2 and 3 in this case is that the pleader guardian though appointed in that case for them did not act or take any step on their behalf and as such he was guilty of gross negligence and, therefore, the decree passed thereunder is not binding on them.
There is no doubt that if it is established that the pleader guardian, as a matter of fact, did not act or take any interest in the proceeding at all, it has to be held that he was guilty of gross negligence in the discharge of his duties (Kamakshaya Narain Singh v. Baldeo Sahai, AIR 1950 Pat 97 (FB) (U)). The lower appellate Court in this case in order to find out as to whether the guardian ad litem did or did not take any step on behalf of the minors in the former case has laid reliance on the circumstances apparent from the facts stated in the two judgments, namely, Exhibits 6 and B. Mr. Sinha's contention is that the facts stated in those judgments cannot in law be used as evidence to prove the fact that the guardian ad litem did not take any step for defending the interest of the minor. In my opinion, on the principles stated above, this contention cannot be sustained in law.
The questions as to whether the pleader guardian did or did not appear on behalf of plaintiff's 2 and 3 at the trial stage or as to whether any written statement was or was not filed on their behalf or as to whether the guardian-ad-litem appointed in the case did or did not appear and make any submission in the High Court are questions which relate to the course of proceedings, or, in other words, are matters connected with the substantive portion of the record and not with the judicial portion.
Therefore, if that is so, then the aforesaid facts endorsed in the judgment may bo used in evidence if they are found relevant under one or other of the provisions of the Evidence Act. According to Mr. Lal Narayan Sinha appearing for the respondents, they are on the facts of this case relevant both under Section 35 and Section 13 of the Evidence Act and in support of this contention reliance has been placed by him on the Privy Council decision of Collector of Gorakhpur v. Ram Sundar Mal, ATR 1934 PC 157 (V). Therein their Lordships have observed :
"There are produced certified copies of the decree in the suit of 1805 already referred to and of two pedigrees, P.5 and P.6, found with it, all of which are by statute to be deemed originals. The decree recites that pedigrees had been filed by both the parties, and sets out according to both pedigrees the descent of Daryao from Bodh Mul, the common ancestor.
This is the only part of defendant 1's pedigree in dispute. If the decree is legal evidence that pedigrees were filed by both parties, we may presume that the two pedigrees, P-5 and P-6, found with the decree, were tbe two pedigrees filed in the suit. Both pedigrees should have been admitted as pedigrees filed by the respective parties to the suit and not as evidence of relationship under Section 32 (5), Evidence Act.
The statements in the decree that the pedigrees were filed is evidence either under Section 35 as an entry in a public record, or under Section 13 is evidence of the course of proceedings in a suit. In Krishnasami Ayyangar v. Rajagopala Ayyangar, ILK 18 Mad 73 (W), a statement amounting to an admission, which was contained in a judgment was received in evidence under Section 35 as an entry in a record made by a public servant in the course of his duty. There is much to be said for this view of Section 35.
In India judgments have to be in writing and signed by the Judge and the original Court and retained in the record room, the judgments and decrees are records of the Court and retained in the record room the parties being supplied with certified copies only. The pedigrees themselves are the best evidence of their contents. P-5, the pedigree filed by the Rani, should therefore have been received when tendered and it might be necessary to have it filed in evidence, unless the circumstances bring it within Section 65, Clause (c) of the Act. It may be accepted that they do.
The question whether statements in judgments and decrees are admissible under Section 13 read with Section 43 is elaborately discussed by Sir John Woodroffe in his new edition of the Evidence Act (1931), p. 181 et seq. He would hold that they are not admissible at all under Section 13; but this view is not in accordance with the decisions of the Board in 22 Ind App 60 (PC) (L) and 29 Ind App 24 (PC) (O).
At the bottom of p. 194 however the learned author treats judgment as evidence of admissions by ancestors. There are great difficulties about Section 13, but Dinomoni's case (O), is express authority for the proposition that 'on general principles and under Section 13' orders made under the Criminal Procedure Code are admissible for the purposes mentioned in the passage quoted at p. 191 from the Board's judgment.
All really wanted here in order to prove that the pedigree filed by the Rani in 1805 is an admission of defendant 2's descent from Bodh Mull is to use the statement in the decree that the pedigrees produced were filed by the parties. If other entries made in records by public officers are admissible it would be absurd that such an entry as this in a decree should be inadmissible. In the result their Lordships are prepared to hold the pedigree admissible under Section 35. In their judgment moreover the two decisions of the Board already referred to are sufficient authority for holding it admissible under Section 13. The pedigree filed by the Rani in 1805, if admissible is clearly a relevant admission under Section 21 against the present Rani as her representative in interest, and an admission within the definition in Section 18, Evidence Act."
In my opinion, on the facts of this case it is difficult to hold that the judgments (Exhibits G and B) may be at all admissible to prove the facts stated above under Section 35 of the Indian Evidence Act. Section 35 deals with the entry in any public or other official book, register or record.
In this case even if the judgments be taken as public records of the litigation between the parties, there is no direct entry made therein in terms to the effect that no appearance or written statement had been filed at the trial stage on behalf of plaintiffs 2 and 3 or defendant No. 15 nor is there any mention in terms in the judgment of the High Court (Exhibit B) to the effect that the guardian-ad-litem had not appeared or made any submission on behalf of or in the interest of the minors. That being so, Section 35 cannot be held relevant for the admissibility of the aforesaid documents in this case.
But I think there is sufficient force in the contention that they are admissible under Section 13 and further also under Sections 11 and 5. In this case the point in issue is as to whether there is any previous judgment against the minor. Therefore, the provision of Section 5 is at once attracted and so also the provisions of Sections 13 and 11 -- Section 13 to prove that in the former litigation the guardian-ad-litem had not as such exercised his right on behalf of the minors and Section 11 to establish that the facts stated in the judgments are inconsistent with the fact in issue to the effect that the guardian-ad-litem had not done anything that he should have done on behalf of or in the interest of the minors. Therefore, it has to be held that the lower appellate Court was not in any way wrong in law to rely on the facts stated, in Exhibits 6 and B to come to the finding that the guardian-ad-litem had neglected in the discharge of his duty. Therefore, the last contention also fails.
17. In the result, therefore, the appeal has to be dismissed with costs.