KRISHNAN v. MADHAVI — 1985 DIGILAW 343 (KER)

Judgment :- 1. This is an appeal by the plaintiff. Plaintiff claims that he is entitled to 3/8 share in the suit property. So he files the suit for partition. The root question to be answered for the decision in this case is whether the plaintiff is the son of late Kunhikannan. Kunhikannan was the brother of the first defendant's husband and the uncle of the other defendants. If the answer is in the negative, the suit has to be dismissed. 2. The suit property belonged to Kunhikannan and others. The trial court held that the plaintiff is the son of Kunhikannan. The learned Munsiff decreed the suit. The appellate court did not agree. The appellate court held that the plaintiff has not proved that he is the son of Kunhikannan. Since the plaintiff is not proved to be the son of Kunhikannan, he has no entitlement to get 3/8 share in the plaint schedule property. Hence the suit was dismissed. Now the plaintiff appeals. 3. The learned counsel for the appellant submitted that the reversal of the decree of the trial court is most unjustifiable, since it is the result of a gross misreading of the evidence in the case by the appellate court. The learned counsel persuaded me to examine the correctness of his submission by spotlighting certain obvious errors as plain as a pikestaff in the judgment. Certainly this induced me to examine the case further to see more vital errors. The main items of evidence to prove the fact that plaintiff is the son of Kunhikannan are Ext.A6 and the testimony of P.Ws.1 to 3. 4. P.W.1 is the plaintiff himself. Of course, much reliance cannot be given to his evidence. P.Ws. 2 and 3 are said to be persons who attended the marriage of Kunhikannan and his wife Chirutha. Ext.A6 is an extract of the birth register. In Ext.A6 it is evidenced that a male child was born to Chirutha. In is noted in the certificate that Kunhikannan is the father of the child. The evidence of P.Ws. 2 and 3 was accepted by the trial court. But the appellate court, on a re-evaluation of the evidence held that the evidence of P.Ws 2 and 3 is not reliable. The learned judge has said in his judgment thus: "Though P.W.1 has not been proved to be a follower of the Marxist Party, there is. The evidence of P.Ws. 2 and 3 was accepted by the trial court. But the appellate court, on a re-evaluation of the evidence held that the evidence of P.Ws 2 and 3 is not reliable. The learned judge has said in his judgment thus: "Though P.W.1 has not been proved to be a follower of the Marxist Party, there is. the suggestion on the side of the defendants that P.Ws.1 and 2 belong to the Marxist Party and that P.W.2 is giving evidence against them in order to support a follower of his own party." The learned counsel for the appellant read the entire deposition of P.W.1 and I fail to see any suggestion by the Advocate who appeared for the respondent suggesting that P.W.1 is a member of the Marxist Party. The learned counsel for the respondent was invited to point out such a suggestion in the deposition of P.W.1; he was not able to point out any sort of a suggestion as mentioned in the judgment of the court below. So the statement in the judgment quoted above is factually incorrect. Similarly, the learned counsel for the appellant read to me, from the beginning to the end the deposition of P.W.2. There also there is no suggestion as stated in the judgment of the appellate court to the effect that PW.2 is a member of the Marxist Party and that he is supporting the plaintiff, who is also a member of the Marxist Party. What I have seen is that there is a pointed question asked by the counsel for the defendants to the effect whether P.W.2 is supporting the plaintiff since they are on cordial terms. Further the learned judge has said that P.W.2 cannot be believed since the plaintiff could have produced persons who are relatives and who have attended the marriage. This is hardly a reason to disbelieve P.W.2. I do not think that this approach is very correct. To prove a marriage a friend or a stranger who attended the marriage is quite competent and it will be better to examine a stranger who attended the marriage than to examine a relative of the plaintiff. If the relative is examined, there is the possibility of attacking his evidence by saying that he is interested. To prove a marriage a friend or a stranger who attended the marriage is quite competent and it will be better to examine a stranger who attended the marriage than to examine a relative of the plaintiff. If the relative is examined, there is the possibility of attacking his evidence by saying that he is interested. On the other hand, if a person who is not related to the plaintiff and who has attended the marriage of the plaintiff's father and mother, it is possible to eliminate such an attack also. I think the reasons stated by the appellate court for discarding the evidence of P.W.2. is not legal and sound. 5. The appellate court also considered the evidence of P.W.3. The learned judge said that the evidence of P.W.3 is not of much help to the plaintiff, since he has not given any details regarding the year of marriage or other particulars. This witness was examined to speak about a fact which happened many years ago. If he has said precisely the details of an event which happened many years ago over which he is not very much interested personally, at once it will be characterised as a tutored evidence. Of course, P.W.3. has said that he has attended the marriage of plaintiffs' father Kunhikannan. I think it was clearly wrong to discard the evidence of this witness. 6. Now, coming to Ext. A6, I am not in a position to say a definite opinion, since the original of the extract produced before the court is not before me. It is said that some insertions were made in the register subsequent to 15-121975, and further it is said that the certificate of the extract was given on 9-12-1975. I am not expressing any view on this matter, since I am presently inclined to remand the case for fresh trial. 7. Such being the facts I turn to the law. The learned counsel for the respondents referred me to several decisions of the Supreme Court and submitted that I should not interfere in this second appeal, since the findings recorded are all findings of fact and in case a remand is needed it should be a remand to the trial court for a fresh disposal of the case. The learned counsel for the respondents referred me to several decisions of the Supreme Court and submitted that I should not interfere in this second appeal, since the findings recorded are all findings of fact and in case a remand is needed it should be a remand to the trial court for a fresh disposal of the case. I do not think that I should not interfere in this appeal on the ground that the findings recorded are findings of fact. I would say that the appellate court has not recorded any finding of fact because what he has recorded is not borne out from the records in the case. To say this, no re-assessment of evidence by me is required. As I said earlier, the learned judge has relied on a suggestion said to have been made to P. W. 2 whether he is a member of the Marxist Party to discard the evidence of P. W. 2. I read the whole evidence. The suggestion relied on by the judge is not seen recorded in the deposition of P. W. 2. If really there was such a suggestion, when P. W. 2 was examined, though I may not discard the evidence of that witness if I am disposing of a first appeal, but if the lower appellate court has chosen to discard the evidence of the witness, in second appeal, I may not be justified in accepting the evidence of that witness. But here in reality there is no such suggestion, so it is not even a finding of fact. Again, he has said there is a suggestion made to P. W.1 whether he is a member of the Marxist Party. That also is not seen in the evidence. In these state of affairs, if I say that the appellate court has recorded a finding of fact and so I should desist from interfering with the judgment of the appellate court, I feel that it will be a clear case of denying justice to the parties. Again even though I cannot interfere with the questions of fact, if the conclusion drawn on the facts proved in the case is wrong, it is a question of law. For this, I rely on Lakshmidhar Misra v. Rangalal (A.I.R.1950 P. C. 56) where it was observed: "The facts found need not be questioned. Again even though I cannot interfere with the questions of fact, if the conclusion drawn on the facts proved in the case is wrong, it is a question of law. For this, I rely on Lakshmidhar Misra v. Rangalal (A.I.R.1950 P. C. 56) where it was observed: "The facts found need not be questioned. It is the soundness of the conclusions from them that is in question and this is a matter of law. The proper legal effect of a proved fact is necessarily a question of law." 8. I am of the view that the conclusions decocted by the appellate court have no ministration on the evidence on record. The conclusions of the learned judge are devoid of the assistance and succour of any legal evidence in the case. I quite agree that the court of second appeal ought to be very slow indeed, to the point of not interfering with findings of fact, however gross the error may seem to be and it very seldom do so but if it appears that the judgment of the court below proceeded on certain conclusions based on an imagination that certain facts are brought out in evidence (when in reality it is not so) and if this court is satisfied, to uphold such a judgment would be an injustice to one of the parties, then I feel that this court even in second appeal has power to interfere with the judgment, and it is, to my mind, the duty of this court to do so. 9. I may also quote here certain observations in the decision reported in (1979) 1 All ER 65 (Ottley v. Morris): "Under S.56(6) of the Taxes Management Act 1970 the courts have power to determine only a question or questions of law arising on the case stated, but in Rose v. Humbles (Inspector of Taxes) (1970) 2 All ER 519, it was decided that the question whether or not an adjournment should have been granted is such a question. The essential matter, I think, is whether the taxpayer suffered such an injustice by reason of the refusal of an adjournment that the decision should not be allowed to stand. The essential matter, I think, is whether the taxpayer suffered such an injustice by reason of the refusal of an adjournment that the decision should not be allowed to stand. I am certainly of the view that the court should be slow indeed to interfere with a decision of commissioners as to the adjournment of an appeal before them, but I have come to the conclusion that the taxpayer, here may have suffered a substantial injustice in the circumstances of the present case, and that in the rather special circumstances of the case it would be right to remit the matter to the commissioners." I may also quote here what Lord Goddard C. J. has said when dealing with the appellate power in Stepney B. C. v. Joffe (1949) 1 All ER 256): "It is constantly said (although I am not sure that it is always sufficiently remembered) that the function of a court of appeal is to exercise its powers where it is satisfied that the judgment below is wrong not merely because it is not satisfied that the judgment was right. Thus usually an appellate court will not interfere with a finding of fact where it is not satisfied that it is wrong even where it is satisfied that it is not quite right." 10. At any rate, I am not satisfied with the reassessment of the evidence made by the appellate court. Initially, I was inclined to remand the case to the appellate court. The learned counsel for the respondents submitted that in case the matter is being remanded, the respondents should be given an opportunity to adduce more evidence in the case and for that the case should be remanded to the lower court. I feel that this is a matter which requires a detailed consideration, since this is a matter concerning the paternity of a person. Hence I feel in the interests of justice, I should remand the case to the trial court for enabling the parties to adduce all possible evidence in the case. The judgments and decrees of the courts below are set aside. All findings recorded by the courts below are vacated and the case is remanded to the trial court for fresh disposal. Both parties are allowed to adduce fresh evidence. The judgments and decrees of the courts below are set aside. All findings recorded by the courts below are vacated and the case is remanded to the trial court for fresh disposal. Both parties are allowed to adduce fresh evidence. But I direct that the suit should be disposed of within four months from the date of receipt of the records by the trial court. Post the case before the trial court on 30th November, 1985. Send back the records immediately. Court-fee paid on the memorandum of appeal will be refunded to the appellant.