Patna High Court
Hira Lal Chaudhury vs Ramanand Chaudhury And Ors. on 9 January, 1959
Equivalent citations: AIR1959PAT515, AIR 1959 PATNA 515
JUDGMENT K. Sahai, J.
1. This appeal by defendant No. 1 arises out of a suit for contribution.
2. The plaintiff is a son of Jialal Chaudhury who was a cousin of defendant No. 1. Both Jialal and defendant No. 1 were previously members of a Hindu undivided family. Shortly stated, the plaintiff's case is that the family properties were partitioned under a final compromise decree passed on 4-7-1949, in Partition Suit No. 27 of 1940. On the other hand the case of defendant No. 1 is that there was a previous partition between the members of the family, and that the compromise decree merely confirmed the partition. The Courts below have, however, hold that the parties were joint, and that partition was effected only under the compromise decree.
3. The Agricultural Income Tax authorities assessed income-tax on the income of the entire joint family properties, and the status of the asses-see was described to be that of a Hindu undivided family. The assessment was, however, in the name of Jialal alone. He had, therefore, to pay the tax. The suit is for realisation of contribution from the other members of the joint family, including defendant No. 1. The Courts below have decreed the suit, and hence defendant No. 1 has preferred this second appeal.
4. Appearing on behalf of the appellant, Mr. Ray, T.N. Sahay has put forward the argument that the Courts below erred in taking into evidence and consideration exhibits 4 series, which are certified copies of the assessment orders passed by the Agricultural Income-tax authorities for different years. His argument is based on Section 42 of the Bihar Agricultural Income-tax Act which is generally in terms similar to Section 54 of the Indian Income-tax Act (XI of 1922). He has submitted that proceedings before the agricultural Income-tax authorities are confidential under Section 42, and hence neither the plaintiff nor any one else was entitled to obtain certified copies of the assessment orders.
His contention is that, as certified copies of the orders could not be obtained, they could not be admitted into evidence either. In support of this contention, he has relied upon Devidatt v. Shriram Narayandas ILR 56 Bom 324 : (AIR 1933 Bom. 291). In that case. Rangnekar, J., who was one of the members of the Bench, has pointed out certain difficulties in giving secondary evidence of income-tax return or an assessment order, in view of Section 54 of the Indian Income-tax Act, but has observed as follows :
"As far as I can see there is nothing in the terms of the Act prohibiting an assessee from giving secondary evidence of the contents of the return made by him or on his behalf or of the assessment order made upon him or his firm on that return, where such secondary evidence would be admissible under the Indian Evidence Act. Having regard to the terms of. Section 54 of the Indian Income-tax Act and the intention of the legislature underlying it, speaking for myself. I see no objection to such secondary evidence being given when relevant."
This observation does not support Mr. Sahay's contention. Another decision which he has relied upon is that in the case of Pramatha Nath v. Nirode Chandra, ILR (1939) 2 Cal 394: (AIR 1940 Cal 187). A learned single Judge, who has decided that case, has stated that an assessment order is a public document within the meaning of Section 74 of the Evidence Act but has pointed out that Section 54 of the Indian Income-tax Act prevents the department from disclosing particulars relating to the assessment. He has also pointed out that in view of Section 76 of the Evidence Act, the department is not liable to give a certified copy of an assessment order to an applicant because no one is entitled to inspect any document relating to an assessment.
This case also, therefore, does not support Mr. Sahay's argument. Another decision, which has been referred to, is that in the case of Asghar Ali Shah v. Achhru Mal, AIR 1935 Lah 272. In that case, the Income-tax authorities had refused! to send a member of the staff to give evidence that a certain person had produced books of account before the assessing authorities. Their Lordships held that this action was justified under S 54 of the Indian Income-tax Act. The instant case is not one in which the Income-tax authorities have refused to grant copies, or to afford any facility, to the plaintiff. Hence. Asghar Ali Shah's case AIR 1935 Lah 272 can be distinguished.
5. The position appears to me to be quite simple. It is quite true that, in view of Section 42 of the Bihar Agricultural Income-tax Act, a party cannot insist upon the Agricultural Income-tax authorities giving it the particulars of any statement, return or other documents relating to an assessment. All that the section lays down is that certain documents and certain facts would be confidential. I am very doubtful if an assessment order is also meant to be confidential because a copy of the assessment order has got to be furnished by the assessing authorities to the assessee in order to enable him to go in appeal if he wants to. Even supposing that an assessment order is included in the documents referred to in Sub-section (1) of Section 42, there is nothing in the section to prevent a person, who has already obtained a certified copy from putting it in evidence in any Court.
The present case being a suit for contribution for payment of the tax, the assessment orders were the most relevant documents for consideration. There can be no doubt that the orders were public documents within the meaning of Section 74 of the Evidence Act as forming the acts, or records of the acts, of public officers. Under Section 65 of the Evidence Act, therefore, certified copies of the assessment orders could certainly be put in evidence. Mr. Sahay has not been able to urge any ground against the admissibility of certified copies of the orders as secondary evidence in accordance with Section 65 of the Evidence Act.
6. I may also mention that the impugned copies of the assessment orders were nut in evidence before the trial court without any objection by the defendants. Mr. Sahay has submitted that he is not estopped, in spite of the omission to raise objection at the time of admission of the documents, from arguing that the documents were inadmissible, and he has relied upon Mt. Sumitra Kuer v. Ram Khair Chowbev, AIR 1921 Pat 61 in support of this argument, The decision supports him, and I am of opinion that the admissibility of any evidence may be challenged at any stage even though it is not objected to at the time of admission.
The mode of proof, however, is a different matter. As the defendants did not object to the admission of the documents they cannot now be heard to say that the secondary evidence of the assessment orders which was given was not properly and regularly given. I need not discuss this point any further, however, because, as I have al-ready shown, the certified entries of the assessment orders could be taken into evidence under Section 65 of the Evidence Act.
7. The last point which Mr. Sahay has urged is that, the plaintiff being the person who was assessed by the Agricultural Income-tax authorities, he is not entitled to get any contribution from defendant No. 1. He has referred in this connection, to Raghavan v. Alamelu Ammal, ILR 31 Mad 35. That case, however, can be easily distinguished because the assessee in it was the plaintiff alone. In the present case, the assessee was the Hindu undivided family consisting of the plaintiff and the defendants. The mere fact that the assessment was made in the name of the plaintiff's father cannot be held to debar him from getting contribution towards the payment of the tax from the other members of the family.
8. For the reasons given above, I hold that no ground for interference has been made out. The appeal is, therefore, dismissed with costs.